Judgment reserved in political parties' case against Zuma's application to appeal costs order for state capture report review

Former president Jacob Zuma. (Photo: AFP)
Former president Jacob Zuma. (Photo: AFP)

Former president Jacob Zuma's legal team has argued that he was not reckless in instituting a review of the state capture report because he was following legal advice.

In December last year, the North Gauteng High Court found that Zuma was reckless in how he dealt with former Public Protector Thuli Madonsela's report and slapped him with a personal costs order which is believed to amount to around R10m.

Judge President Dunstan Mlambo dismissed Zuma's application against Madonsela's report.

Mlambo found that Zuma was compromised and had a "clear personal interest in the outcome of the inquiry".

"None of the grounds of review (in Zuma's application) have any merit. The remedial action (of the Public Protector) is lawful and appropriate."

He described Zuma's actions as "completely unreasonable" and "grossly remiss".

He said Zuma was irrational and his conduct fell far short of what was required of the president in the Constitution.

Arguing for leave to appeal against the costs order in the same court on Thursday, Zuma's lawyer, advocate Thabani Masuku, said Zuma was not reckless as he had a legitimate concern and followed the advice of his then legal team.

Legitimate uncertainty

"Someone who got legal opinions and came to court as a result of that cannot be reckless," Masuku told the court.

He added that the former number one was not being vexatious, or self-serving and that he took the report on review because of the constitutional uncertainty which prompted him to seek legal advice.

Masuku explained to the court that the legitimate uncertainty which Zuma faced centred on the remedial action in the report which took away his constitutional power to choose and appoint the head of the commission of inquiry into state capture.

"Another court, if granted the opportunity, will not say the former president acted wrongly or recklessly."

Zuma's other lawyer, advocate Muzi Sikhakhane, SC, argued that Zuma always said he would institute a commission, but that he wanted to institute it correctly.

He added that Zuma wanted to institute the commission within the ambit of the Constitution to protect it from legal challenges that could arise.

Advocate Dali Mpofu SC, for Cope and UDM, rubbished these claims, saying Zuma had employed delaying tactics because he and his son, Duduzane Zuma, were implicated in the report.

He argued that Zuma had used litigation as a delay tactic before, singling out the Nkandla and spy tapes matters.

Appeal 'dead on arrival'

"If it started in November 2016 as the Public Protector said it should, it would have been all over now and we would have known who had spent the billions," Mpofu said.

He said no one was punishing Zuma for his right to settle a dispute in court. What they did take exception to, however, were his nefarious delaying tactics that were disguised as disputes to be settled in court.

Mpofu added that Zuma was not dealing with the merits of the case, which was now moot, after the commission was eventually established and was currently underway, but rather the personal cost order which was problematic on its own.

"This leave to appeal is a stillborn, it's a non-starter, its dead on arrival.

"The alleged appeal is limping in the sense that the limp is irreparable as it goes there in its naked form as a cost order, without any challenge to the other aligned facts."

Advocate Steven Budlender, SC, for the DA, argued that the former president's reasonable concerns were not demonstrated and could therefore not be called legitimate.

'Zuma will pay'

He also pointed out that Zuma's remedy for the issue he had with the remedial actions showed that he had ulterior motives and acted in bad faith.

"He sought that he, his friends and family would not be investigated unless he picked the investigator and the terms of reference," Budlender told the court.

Earlier on Thursday the former president was granted an application to intervene in the leave to appeal application in his personal capacity.

In April this year, President Cyril Ramaphosa withdrew the appeal of the judgment, an appeal that Zuma instituted while he was still at the helm of the country.

Several political leaders were in court for the application on Thursday. These included DA leader Mmusi Maimane, UDM leader Bantu Holomisa and EFF leader Julius Malema who addressed a crowd of supporters after the case.

He told supporters that Zuma would pay and that the court would uphold its previous judgment.

Judgment was reserved.

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