Jacob Gedleyihlekisa Zuma v Democratic Alliance and Economic Freedom Fighters

Mr Jacob Zuma was indicted on corruption charges in 2005 and 2007 relating to alleged payments from Mr Shabir Shaik while Zuma held office as MEC in KwaZulu-Natal and Deputy President. In 2006 and 2008, Mr Zuma's private attorneys (Hulley Inc) requested state funding for his legal defence. The State Attorney paid approximately R15.3 million (later revealed to be at least R25 million) towards Zuma's private legal costs in the criminal prosecution and related civil litigation. These payments were made purportedly under section 3 of the State Attorney Act 56 of 1957. The payments continued even after Zuma became President in 2009 and after his resignation in 2018. In 2009, the prosecution was discontinued, but this decision was reviewed and set aside by the courts in 2016-2017. In 2018, after details of the payments became public, the Democratic Alliance and Economic Freedom Fighters brought separate review applications challenging the legality of the payments and seeking repayment by Zuma.

• Whether the review applications were brought within a reasonable time despite the passage of years since initial payments
• Whether section 3(1) or section 3(3) of the State Attorney Act 56 of 1957 authorised the State to pay for private legal costs incurred by Mr Zuma in his personal capacity
• Whether it was just and equitable to order Mr Zuma to repay the amounts paid by the State
• Whether punitive costs were warranted given unsubstantiated allegations of bias against the judiciary

The appeal was dismissed with costs, including those of two counsel, to be paid on the attorney and client scale. The orders of the high court were upheld, declaring the payments invalid, directing the State Attorney to compile a full accounting and take steps to recover all amounts paid, and requiring Mr Zuma to repay the funds.

Neither section 3(1) nor section 3(3) of the State Attorney Act 56 of 1957 authorises the State Attorney to appoint and pay private attorneys to represent a public official in criminal proceedings brought against that official in his or her personal capacity. Section 3(1) only authorises the State Attorney to perform work on behalf of Government itself. Section 3(3) requires either a Government interest or public interest, neither of which exists where the State is prosecuting a public official for corruption - the Government's interest lies in ensuring accountability, not in funding resistance to prosecution. The sections do not permit outsourcing of the State Attorney's functions to private practitioners at State expense. Where payments have been made without lawful authority, it is just and equitable to order repayment, particularly where the recipient undertook to repay on demand.

The Court made several important observations: (1) The presumption of innocence does not entitle an accused to state-funded legal representation in defending corruption charges. (2) Holding high public office does not create a Government interest in providing legal assistance for personal legal matters. (3) The alleged conflict of interest in having the State Attorney represent Zuma actually reinforced why such representation was inappropriate - the divergence of interests between the State and the accused precluded such representation. (4) Unsubstantiated allegations of judicial bias made recklessly and persisted in despite opportunities to withdraw warrant punitive costs orders to vindicate judicial integrity. (5) In matters affecting the public at large, courts should take a broad view of when the public might reasonably be expected to have knowledge of administrative action, not based on the peculiar knowledge of particular challengers. (6) The scale of payments (R25 million) and lack of proper authorisation or security for repayment despite undertakings constituted egregious maladministration.

This case is significant for establishing clear limits on the State Attorney's power to fund private legal representation under the State Attorney Act. It reaffirms the constitutional principles of legality, accountability and transparency in public finance. The judgment emphasises that the State cannot fund private legal defence costs for public officials accused of crimes in their personal capacity, particularly corruption charges. It demonstrates judicial willingness to impose punitive costs orders where litigants make unfounded allegations of bias that scandalise the judiciary. The case is part of broader post-2018 accountability efforts regarding state capture and misuse of public funds during the Zuma presidency.