As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Earlier this week, the Supreme Court of Appeal (SCA) confirmed that the use of state funds to pay former President Jacob Zuma’s private lawyers who represented him in matters relating to his prosecution for corruption was unlawful and unconstitutional. The SCA also confirmed that Mr Zuma was obliged to pay back the money to the state. But the judgment further contains a timely warning about the problem of elected officials using access to (seemingly unlimited) state funds “to resist being held accountable” by obstructing or delaying a prosecution.
Some South Africans regularly complain that individuals involved in criminal activities – but who happen to have pots of money, political influence or social and economic power – are seldom investigated and prosecuted. As race remains a significant marker of economic inequality in South Africa, there is also a widespread perception that the criminal justice system tends to favour white suspects over black suspects.
In those cases in which rich and powerful individuals are prosecuted, their money can buy them the best legal defence (not available to less wealthy or poor people), and can also finance procedural challenges to try and delay or even torpedo the prosecution. Whether an accused is rich or poor (or black or white), so the argument goes, can literally determine whether the accused is prosecuted, and (if prosecuted) whether the accused is convicted and imprisoned.
It is true that every accused person has the right to a fair trial, which includes the right to choose, and be represented by, a legal practitioner, whose job it is to represent their client to the best of their ability. But for individuals who cannot afford to hire the best lawyers, or who have to depend on (often inexperienced) legal aid lawyers to represent them, this right can seem illusory. Even when such individuals are represented by good lawyers, they would never be able to afford to pay for the numerous procedural challenges of the kind that kept Mr Zuma out of the dock for about 15 years.
Economic inequality therefore has a major impact on the fairness of the criminal justice system, and I have no doubt that the rich and powerful have a much better shot at avoiding criminal prosecution and conviction than the middle class or the poor. (That said, accused individuals who manage to secure legal representation of any kind may still escape prosecution or conviction because of incompetence or lack of resources on the part of investigators or prosecutors, or because of other systemic failures.)
Depressingly, one could point to many examples of the unequal administration of justice. The fact that former Steinhoff CEO, Markus Jooste, has not yet been charged for his apparent involvement in massive fraud and corruption is the most glaring of these examples. Jooste has not been arrested, and there has been little indication that any progress was being made with the investigation. That this is the case, despite the fact that this failure is seriously affecting the credibility of the Hawks and the National Prosecuting Authority (NPA), strengthens the perception that all are not equal before the law.
Another example is the Tigon case, involving the prosecution of and (the former CEO of Tigon) and Sue Bennett (a former director of Tigon), for fraud and corruption. The accused were arrested in 2002 and 2003, respectively, but their criminal trial only kicked off in September 2016. Since then, the accused have used every trick in the book to delay the trial. In 2010, the SCA found the pair “intended to adopt all available strategies to delay the onset and subsequent continuation of the trial as much as possible.” While the judge in the trail court has (laudably) taken note of this abuse of the system, and now tend to dismiss the many frivolous applications brought by the accused, this has not speeded up proceedings.
In the case of Mr Zuma, the investigation into his alleged involvement in fraud and corruption started in 2003. He is now set to stand trial later this year – 18 years after the investigation started. While some of the delays were due to prosecutorial incompetence, the ability of Mr Zuma to finance various procedural challenges (and to use his political influence to get the charges dropped) significantly contributed to delay, and almost managed to kill the prosecution. This was largely made possible by the unlawful decision of the state to finance his legal defence to the tune of approximately R25 million. As the SCA noted earlier this week in Jacob Gedleyihlekisa Zuma v Democratic Alliance and Economic Freedom Fighters (Case no 1028/2019) :
It now emerges that the State Attorney paid all of Mr Zuma’s legal costs; that is, Hulley Inc’s fees and disbursements (including counsel’s fees), as well as the costs of his opponents when so ordered, in at least the following matters: (a) unsuccessfully seeking to set aside certain search and seizure warrants issued in October 2005 (R9 676 176); (b) unsuccessfully seeking to set aside a request for co-operation from Mauritian authorities made in April 2007 (R4 791 437); (c) unsuccessfully seeking to set aside the 2007 indictment (R2 649 512); (d) unsuccessfully opposing the DA’s review of the 2009 decision to discontinue the prosecution (approximately R7,8 million).
Mr Zuma argued that the State Attorney was authorised by either s 3(1), or s 3(3), of the State Attorney Act of 1957 to appoint and pay private attorneys to represent him. The SCA confirmed that these sections did no such thing, describing the decision to fund Mr Zuma’s criminal defence as “egregious”, as it granted him “a blank cheque” made possible by what appears to have been a “web of maladministration”.
Section 3(1) of the Act authorises the State Attorney’s office to perform in any court or in any part of the Republic “work on behalf of the Government of the Republic”. The SCA confirmed that the section would allow the State Attorney to provide legal assistance to government officials, but only in cases relating to their actions taken in their official capacity. As there was no suggestion “that Mr Zuma was advancing any governmental interest or purpose” when he allegedly committed fraud and corruption, section 3(1) does not apply in this case. Moreover, the Act clearly does not authorise the State to cover the private legal costs of anyone.
The SCA also confirmed that section 3(3) of the State Attorney can only assist in matters where the Government is not a party, when this is justified by Government’s interest or concern in the matter, or when it is in the public interest to do so. The SCA held that this was clearly not such a case, noting that:
The Government and the public can hardly have a legitimate interest in supporting a defence against criminal charges by an incumbent or former public office bearer and especially not in respect of charges of dishonesty and corruption. Allowing officials to resist being held accountable, by drawing on state resources to obstruct or delay a prosecution, subverts the Government’s (and the public’s) interest.
Mr Zuma ultimately lost all the procedural challenges brought by his lawyers over the years. Even in cases where he won in the High Court, these decisions were overturned by the SCA or the Constitutional Court. This means the approximately R25 million of public funds unlawfully spent on Mr Zuma’s attempt to avoid having his day in court, did not ultimately save him from facing prosecution. But it did help to delay his trial with about 15 years. The court has now put an end to this method of personal enrichment, so unless Mr Zuma has access to substantial funds from another source, the decision is also likely to limit his lawyers ability to further delay his trial.
But the judgment will not only affect Mr Zuma. It will hopefully also bring an end to (or drastically reduce) the cases in which the state pays the legal fees of private lawyers representing members of the executive and senior officials who are charged with corruption. Of course, the State Attorney will – rightly – continue to provide legal assistance to members of the executive and to public officials involved in cases relating to the exercise of their official duties. But when such officials are prosecuted for corruption – which by definition cannot be part of the exercise of their official duties – the accused persons will have to fund their own legal defence.
However, the judgment will not have any bearing on the way the criminal justice system tends to advantage the rich and politically connected (or on the way in which race impacts on how suspects are treated). The inequality is built into the system. As lawyers offer their services in the capitalist “marketplace”, and as it is assumed that the better the lawyer the higher fees they can charge, money will continue to influence the quality of the legal representation an accused is able to secure. But as I don’t want to invoke the wrath of all the lawyers trying to make some decent money (and as I earn a monthly salary paid by the state), let me not say anything more about this.
I do think some of the problem could be addressed by changing the procedural rules to try and reduce the often-overbearing role that well-funded lawyers are permitted to play when they go to battle for their rich (or taxpayer funded) clients.
Returning to the present case, the irony surely could not be lost on anyone that Mr Jacob Zuma, who often complains that the courts treat him unfairly and that he is fighting to dismantle inequality, has benefitted handsomely from state funds to conduct his legal defence. This has enabled him to buy an advantage that 99.9% of criminal accused could only dream of, the kind of defence that Markus Jooste might well deploy in the event of him ever being prosecuted for his alleged crimes.
Think about it: Mr Zuma managed to get the state to pay for his legal defence (something that is unlawful), a defence that only the very rich would otherwise be able to afford – yet he complains bitterly that he is being unfairly treated. At the same time, I could find no statement by Zuma complaining about the unfairness faced by poor black accused persons unable to pay for a good lawyer and the many procedural challenges that may delay their trails.
This is the epitome of the kind of hypocritical chutzpa that Mr Zuma has become infamous for.