After a string of expensive legal losses, former president Jacob Zuma has scored a potentially significant victory by persuading the Supreme Court of Appeal to hear his challenge to the estimated R10m personal costs order granted against him in his failed state-capture report litigation.

It is certain that the former head of state will use this hearing, now set for March 26, to again ventilate his arguments that the Zondo inquiry into state capture was established in an unconstitutional manner because he as president was not allowed to choose the judge who would preside over the commission.

Three Pretoria high court judges, led by judge president Dunstan Mlambo, had refused Zuma the right to appeal against the personal-costs order granted against him after he tried and failed to interdict the release of then public protector Thuli Madonsela’s State of Capture report, and then to challenge her remedial action.

The court found that Zuma had been “reckless” and “ill-advised” to launch these legal challenges as Madonsela’s remedial action was motivated by the fact that he, his son Duduzane and his friends the Gupta family had all been implicated in alleged state-capture corruption, and this amounted to an “insurmountable” conflict of interest.

The appeal court’s decision to hear Zuma’s arguments on why these judges were wrong, which centre on his stance that Madonsela’s remedial action was unconstitutional, will be keenly observed by the Zondo inquiry’s legal team.

Earlier in 2020, Zuma reiterated to deputy chief justice Raymond Zondo, who is chairing the inquiry, that he reserved his “rights to challenge the commission’s legality — in its establishment and in how it is conducted at the right time and before the right forum.”

He said later that he was “keen to have the issue regarding the constitutionality of the commission resolved expeditiously”.

In papers filed at the appeal court, Zuma argues that it was wrong of the high court to order that he personally pay the legal costs of his failed litigation because his challenges to Madonsela’s report were motivated by genuine legal concern and not his own self-interest.

“I was not opposed to appointing a commission of inquiry myself, but the remedial action and directive of the public protector bothered me for its constitutional uncertainty,” Zuma states in court papers.

“My anxiety was that if I established a commission of inquiry on such terms as set out in the public protector’s report and it later turned out that I had acted unconstitutionally ... such an important commission would have been tarnished with legal and constitutional uncertainties. Further, if such challenges were to succeed, the state would have wasted resources on a futile and unconstitutional process.”

In response to a bid by the inquiry’s lawyers to apply for a subpoena that will compel him to testify, Zuma has now made it clear that he may revive his aborted legal challenge to Madonsela’s remedial action, which his successor, President Cyril Ramaphosa, abandoned two months after Zuma was forced to resign.

At the time, state attorney representative Isaac Chowe stressed that Zuma still had the option of appealing against the ruling “in his personal capacity”. 

Apart from threatening his own legal challenge to the establishment of the Zondo inquiry, Zuma has also asked Zondo “to consider appropriate directives dealing with my complaint that I believe that the commission of inquiry was not established in accordance with the constitution”.  

The appeal court’s response to Zuma’s costs appeal, which centres on the legitimacy of his challenges to Madonsela’s report, will inevitably involve legal consideration of the potential grounds of attack on the Zondo inquiry. And this may be a significant reason the court has given the former president a hearing.