Pretoria - The leave to appeal application by former president Jacob Zuma against footing the R10-million costs order awarded against him in his personal capacity, should be turned down, as his prospects of succeeding on appeal are “zero”.
This is according to advocate Dali Mpofu, who opposed the leave to appeal application on behalf of the UDM and Cope.
Mpofu said the full bench (three judges), led by Gauteng Judge President Dunstan Mlambo, was correct in finding that Zuma had acted recklessly when he challenged the remedial action of the public protector regarding the State of Capture report.
Then-public protector Thuli Madonsela, among others, called for a commission of inquiry into State Capture, but she made it clear that Zuma was not to appoint the commission, as he was implicated in her report.
In turning down Zuma’s review of the report, Judge Mlambo at the time and during a scathing judgment, awarded a punitive costs order against Zuma in his personal capacity.
It is in regard to this order that Zuma on Thursday asked the same judges for permission to appeal their findings before the Supreme Court of Appeal in Bloemfontein.
Advocate Muzi Sikhakhane SC, one of the two senior counsels who represented Zuma on Wednesday, was adamant that there were prospects of success on appeal. He said another court may well hold a different opinion on whether Zuma was reckless when he asked the court to review Madonsela’s report.
“We submit this court erred in holding that the applicant was reckless in pursuing the review application. Another court will come to a different conclusion...The remedial action imposed by the public protector was at the time unprecedented in law. They raised serious issues about the constitutional powers of a president and whether the public protector can usurp them.”
He said that Zuma was, in fact, a champion for the constitution when he challenged the report. He simply wanted to ensure that the remedial action called for by the public protector, was sound in law. It was not a question that he was against the remedial action where it called for a commission of inquiry into State Capture.
Sikhakhane said at the heart of this application is not whether the grounds for review of the public protector’s report were good or not, but whether in instituting the review, Zuma was reckless.
He argued that it was within Zuma’s rights to turn to court if he was concerned about an aspect in the report, as he wanted to obtain judicial clarity. He said the commission of inquiry would cost around R200-million and Zuma wanted to ensure that all was in order before these costs were incurred.
Sikhakhane argued that events now proved Zuma was correct in questioning the remedial action, as the public protector proposed the commission sit for 180 days. Judge Raymond Zondo who now headed the inquiry had to turn to the court to obtain clarity in this regard as he said it could take up to two years, Sikhakhane said.
Thus, he argued, it was reasonable for Zuma to also obtain clarity.
Mpofu said Zuma was clearly reckless as he, as head of state, was worried about spending R200-million on a commission, while billions was said to have gone missing as a result of state capture.
He said Zuma’s conduct delayed the appointment of the commission. “If it started in November 2016 as the public protector said it should, it would have been all over now and we would have known who had spent the billions.”
Mpofu said the public protector was quite correct to find Zuma should not have appointed the commission as he was the subject matter of the report and his son Duduzani was involved with the Gupta family.
He said it was in fact in protecting Zuma that it was stated he should not appoint the commission. Mpofu accused Zuma’s review application as a disguise for his delaying of the implementation of the remedial action.
Zuma, meanwhile, passed the first hurdle in his bid for leave to appeal, when the court spent most of Thursday morning hearing submissions of whether he, in his personal capacity, should be allowed to intervene in the leave to appeal application.
The opposition parties said the action was “dead” when President Cyril Ramaphosa in April withdrew the appeal. But Zuma said this left him in the cold, as he was no longer president by then and the personal costs order against him left him still remained an issue.
Judge Mlambo granted Zuma leave to intervene and to proceed with his leave to appeal application in his personal capacity.
Several political leaders meanwhile attended Thursday’s hearing, including UDM leader Bantu Holomisa, EFF leader Julius Malema and DA leader Mmusi Maimane, who was also opposing Zuma’s application
Judge Mlambu reserved judgment and added that the court will not take very long to decide on whether to grant leave to appeal.