Former president Jacob Zuma. Picture: REUTERS
Former president Jacob Zuma. Picture: REUTERS

The presidency has hinted that it may seek a refund for legal fees from former president Jacob Zuma, depending on the outcome of a court challenge to the state funding his corruption trial defence.

It has also admitted that large amounts of documentation linked to the state’s multi-million-rand funding of Zuma’s legal fees are missing‚ or have been destroyed "due to their age".

The presidency says the government has paid a total of R16.7m for Zuma’s legal fees‚ but it is likely that this amount will be disputed.

President Cyril Ramaphosa is not opposing court bids by the DA and EFF to stop the continued state funding of Zuma’s corruption trial defence‚ to which Zuma insists he is constitutionally entitled. Zuma’s lawyer Daniel Mantsha says this is because he stands accused of abusing his public office to commit corruption‚ and this means the charges against him are linked to his position in government.

Director-general in the presidency Reginald Lubisi states in an explanatory affidavit filed on Tuesday that this funding was given to Zuma according to the provisions of the State Attorney Act. "The rationale for state funding of an official’s legal costs is to recognise that there are circumstances where an official is exposed to the risk of litigation by virtue of his or her office, no matter the rank. The official should not be liable for claims arising from acts committed in the course and scope of his or her official duties."

He adds that the funding would be forfeited if it could be shown‚ among other things‚ that the accused official "did not act in the course and scope of his or her employment".

Lubisi has sought to explain Ramaphosa’s stance on the case‚ and detail why the presidency has failed to provide a full set of documents linked to the 2006 decision to fund Zuma’s fees. He said the presidency has done its best to locate documents that recorded the fees deal — and how it was applied — but has encountered challenges in doing so. He said Zuma’s former lawyer‚ Michael Hulley‚ was asked to assist but did not respond to two written requests from the presidency for help.

According to Lubisi‚ the payment of Zuma’s fees began as early as 2004‚ when the presidency paid for a lawyer to monitor the criminal trial of Zuma’s former financial advisor‚ Schabir Shaik‚ who was charged with corrupting Zuma. When Zuma was charged with corruption in 2005‚ former justice minister Brigitte Mabandla advised then president Thabo Mbeki that he qualified for state funding of his defence.

The presidency went on to fund multiple unsuccessful cases brought by Zuma in which he sought to challenge the search-and-seizure raids conducted by the Scorpions on his and his lawyers’ properties‚ as well as the Scorpions’ efforts to secure evidence against him in Mauritius. He also‚ among other things‚ took the National Prosecuting Authority (NPA) to court for failing to seek representations from him about why the case against him should be dropped. All these cases ultimately ended in failure.

However‚ while Zuma has agreed to refund the state if he is ever convicted of corruption‚ it appears unclear if he was ever asked to pay such a refund for multiple failed civil applications linked to the case. "It is correct that the presidency has not yet requested a refund of any of the funding provided to Mr Zuma‚" Lubisi said. "We await the outcome of this litigation before we do so."