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Democratic Alliance v President of the Republic of South Africa and Others; Economic Freedom Fighters v State Attorney and Others (21405/18; 29984/18) [2018] ZAGPPHC 836

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Democratic Alliance v President of the Republic of South Africa and Others; Economic Freedom Fighters v State Attorney and Others (21405/18; 29984/18) [2018] ZAGPPHC 836

14th December 2018

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[1] These are two applications – one brought by the Democratic Alliance (case no. 21405/18) and the other by the Economic Freedom Fighters (case no.  29984/18) – for the review and setting aside of the decisions taken by the Presidency and the State Attorney to procure private legal representation for former President Jacob Gedleyihlekisa Zuma and for the state to pay the legal costs incurred by him in his personal capacity in the criminal prosecution instituted against him on 20 June 2005, 28 December 2007 and 16 March 2018, and in ancillary or related civil proceedings (the impugned decisions).  The criminal charges against Mr Zuma include a charge of racketeering, corruption, money laundering and 12 charges of fraud.  The ‘Stalingrad defence’ strategy, which Mr Zuma adopted, has cost the state, and hence the taxpayer, thus far a total amount of between R16 788 781.14 and R32 million.  The Presidency’s stance is that it will continue to provide state funding for Mr Zuma’s criminal trial ‘on the basis that the decision is presumed to be valid and binding until it is set aside by the court’.

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[2] The term ‘Stalingrad defence’, Wallis JA explained in Moyo v Minister of Justice and Constitutional Development and others (387/2017); Sonti v Minister of Justice and Correctional Services and others (386/2017); [2018] ZASCA 100 (20 June 2018) para 169, ‘. . . has become a term of art in the armoury of criminal defence lawyers.  By allowing criminal trials to be postponed pending approaches to the civil courts, justice is delayed and the speedy trials for which the Constitution provides do not take place.  I need hardly add this is of particular benefit to those who are well-resourced and able to secure the services of the best lawyers.’

[3] Other than for declaratory relief that the state is not liable for the legal costs incurred by Mr Zuma in his personal capacity in the criminal prosecution instituted against him, in any civil litigation related or incidental thereto and for any other associated legal costs, the DA seeks the impugned decisions to be judicially reviewed under the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) or under the principle of legality, and the EFF seeks the judicial review of the impugned decisions under the principle of legality.  Both the DA and the EFF contend that a ‘just and equitable’ remedy includes the rendering of an account by the State Attorney in order to ascertain the exact amounts that were expended on Mr Zuma’s private legal costs and to take all necessary steps, including the institution of civil proceedings, to recover the amounts paid by the state for Mr Zuma’s legal costs.  The applications of the DA and of the EFF were heard together as they arise out of the same facts and both concern the legality of the decisions to appoint private legal representation for Mr Zuma and to pay the legal costs incurred by him in his criminal prosecution and the related civil litigation.  The legislative authority invoked for the impugned decisions are s 3(1) or s 3(3) of the State Attorney Act 56 of 1957 and reg 12.2 of the Treasury Regulations made in terms of the Public Finance Management Act 1 of 1999 (the PFMA).

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