Recklessly throwing taxpayer funds at court cases is unconstitutional

With unemployment and social welfare at crisis levels and an actively shrinking economy, one would expect government to spend the little funds it forcefully extracts from taxpayers on comparatively important things, like 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 like South Africa, our constitutional jurisprudence is not as mature and sophisticated as that of, say, Germany or the United States. Many of the cases that reach the Constitutional Court are relatively straightforward and deal with superficial legal questions mostly surrounding the rights in 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; subsection (b) provides that the “efficient, economic and effective use of resources must be promoted”; and subsection (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, over R13 million (thus far revealed) has been spent just for fees surrounding court. Later, it was revealed on Times LIVE that Zuma has retained the services of another senior private advocate.

Is a high standard of professional ethics being promoted when 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?

Obviously, no.

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 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 like 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.

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 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 hard-earned money to the government, and, more often than not, they have no say in how government spends 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 the Constitution contains provisions such as those in section 195, and the section 1(c) commitment to the Rule of Law. This latter commitment means 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 South Africa, 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 that 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.

Martin van Staden is a Legal Researcher at the Free Market Foundation and is pursuing a Master of Laws degree from the University of Pretoria

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