Staff Reporter
Judgment has been reserved in an application brought to the Supreme Court of Appeal (SCA) by former president Jacob Zuma against a High Court ruling which ordered him to pay legal costs after losing his bid to take the Public Protector’s report on state capture on review.
Lead counsel for Zuma, Advocate Muzi Sikhakhane, told a full bench of the SCA via video conference on Friday that there was no justification that Zuma was wrong by taking the matter on appeal to warrant the costs order.
He said Zuma was never opposed to the setting up of a commission of inquiry as directed by former Public Protector Thuli Madonsela, but it was the manner in which it was to be conducted that he was opposed to.
“It’s not reckless to launch a review application that you may lose,” Sikhakhane told the bench led by Judge President Mandisa Maya.
“The fact that one of the grounds for the application cannot constitute that the application was reckless,” he said.
Zuma wanted the SCA to determine if the North Gauteng High Court was right when it handed him a costs order when he lost the case.
He also wanted the Bloemfontein-based court to decide whether it was reckless for him in his capacity as the then head of state, faced with remedial action whose constitutionality he doubted, to approach a court of law for the review of remedial action contained in the state capture report.
In his application, Zuma also wanted it to be determined whether the High Court was correct in refusing him leave to appeal and if the appeal bears prospects of success.
Sikhakhane outlined the sections of the remedial action which prompted Zuma to seek clarity from the courts and argued there was no recklessness in his actions as the issue of state capture was and remains a topical issue in the country.
Zuma was not happy with the paragraphs which read:
“8.4 The President to appoint, within 30 days, a commission of inquiry headed by a judge solely selected by the Chief Justice (who) shall provide one name to the President.
“8.7 The commission of inquiry to be given powers of evidence collection no less than that of the Public Protector.
“8.8 The commission of inquiry to complete its task and to present the report and findings and recommendations to the President within 180 days. The President shall submit a copy with an indication of his/her intentions regarding the implementation to Parliament within 14 days of releasing the report.”
Public Protector Advocate Busisiwe Mkhwebane was joined in responding to the matter by a host of political parties, including the Economic Freedom Fighters, the United Democratic Movement, the Congress of the People and the Democratic Alliance.
Former MP Vytjie Mentor and the Council for the Advancement of the South African Constitution, a public benefit organisation, are also respondents in the matter.
For the EFF, Advocate Tembeka Nicholas Ngcukaitobi said Zuma failed to present substantive arguments on the different points he presented to the High Court.
“You may not simply say that the judgment of the lower court was incorrect. You may not simplify that in your own view there was no recklessness,” suggested Ngcukaitobi.
“There is a double hurdle that Mr Zuma faces. He faces a common law hurdle . . . and he fails on that hurdle.
“He faces an exceptionality hurdle that is imposed by the legislation, he fails on that hurdle too.
“So, in these circumstances, we would submit that Mr Zuma fails on each of the arguments that he raised.”
 by former president Jacob Zuma against a High Court ruling which ordered him to pay legal costs after losing his bid to take the Public Protector’s report on state capture on review.){kind=link}