Using taxpayers’ money to fund Jacob Zuma’s legal bills is unconstitutional
The intuitive feeling that the government spending scarce resources on such a case is probably illegal, is correct
With unemployment and social welfare at crisis levels and an actively shrinking economy, one would expect the government to spend the little funds it forcefully extracts from taxpayers on comparatively important things, such as grants, the police, or giving title deeds to emerging black farmers who lease state land. Instead, our wise rulers try to out-compete one another in wasting precious, scarce resources. The intuitive feeling that this is probably illegal, is correct.
As can be expected from a developing country such as SA, our constitutional jurisprudence is not as mature and sophisticated as that of, say, Germany or the US. Many of the cases that reach the Constitutional Court are relatively straightforward and deal with superficial legal questions mostly surrounding the Bill of Rights. It comes as no surprise, then, that there are various sections in the Constitution which are, at least, under-emphasised, and at worst, completely ignored.
One such section is Section 195, which sets out the principles and values that supposedly govern the public administration — which includes all spheres and branches of government and public enterprises.
Section 195(1)(a), for instance, says that "a high standard of professional ethics must be promoted and maintained" by the public administration; sub-section (b) provides that the "efficient, economic and effective use of resources must be promoted"; and sub-section (c) says the "public administration must be development-oriented".
City Press recently reported that President Cyril Ramaphosa has authorised the further use of taxpayer funds to cover former president Jacob Zuma’s fees as the latter battles corruption charges in court. The paper goes on to say that since Zuma’s corruption woes began, more that R13m (thus far revealed) has been spent just for fees [to do with court]. Later, it was revealed by Business Day that Zuma has retained the services of another senior private advocate.
Is a high standard of professional ethics being promoted when the government fights tooth and nail to delay and otherwise obstruct proceedings aimed at discovering whether corruption is at play? Is spending ever-increasing millions on (often private) advocates an efficient, economic or effective use of limited public funds? Is the public administration development-oriented when taxpayers’ hard-earned money is being spent on judicial proceedings unrelated to the socio-economic rights in the Bill of Rights?
The public lust for Zuma’s imprisonment, I believe, is often misplaced. The man is innocent until proven guilty, which is a hallmark of our constitutional order and legal tradition. But this should not mean, and does not mean, that the government is entitled to spend however much it wants, and conduct itself in whatever way it wants, to ensure an innocent verdict is returned. When accused government officials such as Zuma opt to use private lawyers rather than the salaried state advocates and state attorneys, they should foot the entire bill themselves. And if they use state resources, no delaying or obstructive actions should be taken.
Is the public administration development-oriented when taxpayers’ hard-earned money is being spent on judicial proceedings unrelated to the socio-economic rights in the Bill of Rights?
Lawyers are under a duty deeply-rooted in legal tradition to give their criminally accused clients the very best defence. This sometimes involves attacking the prosecution’s case on the basis of technicalities. This is fine and, arguably, necessary, to ensure the prosecution takes its obligation to prove guilt beyond a reasonable doubt seriously. When taxpayers’ money enters the fray, however, this ordinary analysis cannot be undertaken unmodified.
The paying of tax is not a voluntary affair, despite the South African Revenue Service’s (SARS) annual "requests" for taxpayers to "please" cough up the dough. Here and around the world, nobody has a choice about giving up a substantial amount of their income to governments, and, more often than not, they have no say in how governments spend their money. The state, in other words, has no money of its own. Everything it does, it does with funds appropriated from the people.
It is for this reason that our Constitution contains provisions, such as those in Section 195, and the Section 1(c) commitment to the Rule of Law. This latter commitment means the government must always act rationally, proportionally and effectively.
Zuma, now a private citizen, should, properly, be expected to pay his own legal costs. But because the charges against him emanate from a time when he was a top civil servant in SA, it probably makes sense for the state to cover his fees. In so doing, however, the state must adhere to the demands of the Rule of Law. This may mean the government should cease funding after the trial court’s decision and let Zuma cover the costs himself if there are to be appeals. Whatever the case, the taxpayer cannot be expected to continue footing the bill.
• Van Staden is a lawyer working as the legal researcher for the Free Market Foundation and is pursuing a Master of Law degree from the University of Pretoria.