The state attorney had neither the authority nor obligation to pay for former president Jacob Zuma's legal fees, argued the Democratic Alliance in court papers filed in the North Gauteng High Court in Pretoria on Friday.
The DA's application seeks to have a deal made between Zuma, former president Thabo Mbeki and the state attorney in 2006 to pay for Zuma's litigation costs relating to corruption charges nullified.
President Cyril Ramaphosa confirmed on Thursday that the state had entered into a deal with Zuma to pay the costs of his legal fees for the criminal case, which he would pay back should he be found guilty.
Ramaphosa said R15.3m of taxpayers' money had been used to pay for the legal costs during the years Zuma spent fighting off possible corruption charges against him and the release of the so called "spy tapes". The tapes contained transcripts used by then acting head of public prosecutions Advocate Mokotedi Mpshe to drop charges against Zuma, a decision which the courts have found to be irrational.
Zuma is now facing 16 charges relating to fraud, corruption, money laundering and racketeering, in a case which the National Director of Public Prosecutions boss Shaun Abrahams thinks is strong.
The DA said it wants the money spent on Zuma's legal fees paid back to the National Treasury, arguing in its papers that sections 3(1) and 3(3) of the State Attorney's Act did not permit for an agreement covering Zuma's bills.
"I deny that either of these provisions authorises the state attorney or the president, or any other public official for that matter to decide to impose on the state the obligation to pay for Mr Zuma's personal legal costs, conditionally or otherwise," said the DA's federal executive chair James Selfe.
'Deal in contravention of Public Finance Management Act'
The DA also insists that government could have no legitimate interest or concern in the conduct of a defence against criminal charges.
"The public interest demands that such charges are prosecuted and met to ensure public accountability, the promotion of good governance, and the protection of the rule of law," said Selfe.
On page 20 of the legal papers, Selfe, in continuing to argue against the decision taken to cover Zuma's legal costs, said the state attorney itself considered it "impermissible" to fund defence in criminal charges, citing a response from the state attorney's office refusing to represent public officials who were accused of "committing acts that cannot be aligned with the course and scope of their employment".
The party, in calling for a review, concludes that the secret deal also contravened the Public Finance Management Act, accusing the Department of Justice, which is in charge of the state attorney's office, of breaching all provisions of the act. These include the prevention of unauthorised, irregular and fruitless expenditure and losses resulting from criminal conduct.
In seeking appropriate relief, the DA said it wanted the agreement reviewed and set aside, for Zuma to pay back the money spent on his litigation and a declaratory order on the state's liability in the matter.
Ramaphosa's spokesperson Khusela Diko told News24 that the president would need to study the merits of the DA's application before making a decision on the matter.