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The Supreme Court of Appeal has dismissed former president Jacob Zuma’s appeal of the Pretoria High Court’s ruling that he must pay personal costs for unsuccessfully challenging former Public Protector Thuli Madonsela’s State of Capture report.
On Friday, Judge A Schippers ruled: “The application for leave to appeal is dismissed with costs, including the costs of two counsel on the scale as between attorney and client.”
Schippers argued that Zuma and his lawyers tried to achieve the “impermissible” and that the appeal was motivated by personal interest.
“It cannot conceivably be in the interests of justice to permit Zuma to pursue an appeal against the cost order, in circumstances where the launch of the review of the application was reckless and motivated by personal interest,” Schippers said.
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He added that Zuma took time to establish the commission of inquiry, which was prejudicial to both the state and its democracy.
He quoted the Constitutional Court’s judgment in the case between the Public Protector and the Reserve Bank, which said public officials had a “higher duty” when litigating and were required to “observe higher standards in litigation”.
Schippers said Madonsela’s remedial action presented an opportunity for Zuma “to suppress his own personal interests and serve the national interest as the Constitution required. He chose the former”.
The result was a delay in the investigation of the allegations of state capture for more than a year, said the judge.
The court previously dismissed Zuma’s application for a permanent stay of prosecution.
At the time, his legal team stated that Zuma was within his constitutional rights to appeal to the highest court in the land.
In August, his lawyers insisted that Zuma was not acting recklessly when he sought to challenge the constitutionality of Madonsela’s State of Capture report, claiming he was worried about its legality.
Zuma’s challenge of Madonsela’s report was about the finding that Chief Justice Mogoeng Mogoeng should pick the judge to chair the commission of inquiry into state capture. This delayed the start of commission by more than a year.
Typically, under the provisions of the Constitution, only the president is responsible for establishing commissions of inquiry and appointing the judges to head them.
Madonsela’s remedial action was motivated by Zuma, his son Duduzane, and his friends, the Gupta family, all being implicated in alleged state capture corruption and this amounted to an “insurmountable” conflict of interest.
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The court previously found that Madonsela’s recommendations were “wise, necessary, rational and appropriate”. The court added that Zuma should personally pay for the legal cost.
After the high court had ruled that he should personally pay the costs, Zuma returned to the same court to argue against the judgment and was unsuccessful.
In rejecting his application for leave to appeal, the SCA said it was “beyond question” that the high court had applied the correct legal principles when it made its costs order.
“It rightly found the [former] president could not litigate for the purpose of protecting his own personal interests.”
In a unanimous judgment, Schippers outlined the law on the granting of personal and punitive costs.
Costs orders were a matter of “true discretion” for the lower court and appeal courts should be very slow to disturb them, said the judge.
“In this regard, Zuma faces a formidable hurdle,” he said.
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