Who is funding South Africa's application to the International Court of Justice?

And why do the media not want to report on public documents that answer this question?

In my last post I wrote about the controversy surrounding South Africa’s application to the International Court of Justice and the serious allegations that it was funded by the Iranian government.

The allegations are wild and entirely unsubstantiated, but they range from claiming that the costs of the application were funded by Iran to suggesting that Iran bribed the African National Congress (ANC). The latter claim would mean that the ANC broke political party funding laws in two respects: receiving cash support from a foreign funder and concealing that funding from the Independent Electoral Commission. There is no evidence of either and both seem very unlikely - including because the potential returns would not outweigh the very serious risks.

What about the suggestion that the actual cost of the application was funded by Iran (or Qatar)? One strange thing about this issue is that the government has been very coy about releasing any information about the cost or funding of the case. This first came to my attention when I started asking around about whether the lawyers in the case were being paid or not. I became interested in that issue because of a strange pattern I noticed in the reporting of traditionally hostile media and civil society groups that sought to valourise the lawyers as the bringers of the application, whereas in fact it was the government - and two ANC ministers in particular - who were the decision-makers and the parties in the case. More on that below as it’s an important dimension of this story.

As I have said before, I support the substance of the case. However, there are geopolitical and societal aspects of it that I think are being misrepresented - or not discussed at all - in national and international commentary so my aim is to shed some light on those.

Knowing where to look

As an expert in public finance processes I happen to read the tablings of budget documents closely and also try to follow parliamentary oversight processes. The decision to file the ICJ application was taken late in 2023 and any costs incurred should have been reflected in the 2024 Budget documents, but no such expenditure line items appeared. In principle, incurring costs without first informing Parliament is discouraged by legislative processes but it is possible. However, it still requires approval after the fact.

It was no surprise, then, when I came across a reference buried in a lengthy sentence about a range of issues in the recent Medium Term Budget Policy Statement (MTBPS) tabled at the end of October:

In addition, special adjustments are included for the repayment of debt to SANRAL and appropriations to the Presidency, the Department of International Relations and Cooperation and the Department of Justice and Constitutional Development in legal costs for South Africa’s case in the International Court of Justice.

The table of adjustments 30 pages later in the document shows a R96million allocation to the ICJ case:

A later table reveals that this amount is split across 3 departments as follows:

• The Presidency (R17million)

• International Relations and Cooperation (R40million)

• Justice and Constitutional Development (R38million)

The documents do not reveal what these amounts are actually for, but more on that below. So much for the apparent costs incurred this fiscal year, what about future allocations?

A footnote in a table in a technical annexure indicates that an allocation has been made for the next two fiscal years, but by combining that with two other expenditure increases - including a more bloated Cabinet - conceals the actual amount for the ICJ case within a total of R2.34billion.

Parliament hearings

None of this would typically be the subject of a special parliamentary session, but something unusual was done in parallel to the above measures: the Treasury tabled a piece of legislation known as a ‘special appropriations bill’, which essentially requests approval from Parliament for a specific expenditure.

The odd thing about the parliamentary hearing was that only the Presidency appears to have participated despite two other departments receiving the bulk of the money. Nevertheless, it revealed some useful information such as the high-level breakdown of costs:

If this breakdown applies to the other two departments, it would mean that R67million is going to legal fees. A substantial chunk of that is likely to go to the counsel arguing the case in front of the ICJ.

Members of Parliament (MPs) appear to have done a good job of grilling state representatives on apparently unnecessary spending such as return business class flights for R75,000. Furthermore, they asked about other funding sources and Presidency representatives repeatedly confirmed that there had been no such sources and one reason for that was so as not to compromise the case.

A note on lawyers and the ‘cab rank rule’

The South African legal team in its ICJ case is reportedly as follows: John Dugard, Max du Plessis, Tembeka Ngcukaitobi, Adila Hassim (all senior counsel); Sarah Pudifin-Jones, Lerato Zikalala, Tshidiso Ramogale (junior counsel); Vaughan Lowe and Blinne Ní Ghrálaigh (King’s Counsel from the UK).

When people criticise lawyers for representing criminals or other dubious individuals, or clients who they disagree with politically, there will usually be someone pointing out the ‘cab rank rule’. In essence, this requires that lawyers not turn away any client except for reasons relating to lack of expertise or capacity (on the part of the lawyer). So the argument is: ‘just because a lawyer represents person or party X does not mean they agree with them or their politics’.

Fair enough, on the face of it - though there are a few problems with this. First, in practice it is well-known that many lawyers can find ways around this requirement. Second, there are lawyers who are clearly associated with certain types of cases and certain types of clients. A notable example are the ‘gang lawyers’ in Cape Town who were often hired to represent notorious Cape gangsters - at least until they are assassinated, as has happened in a few recent instances.

A key point is that the cab rank logic does not apply when lawyers are acting ‘pro bono’. If a lawyer represents a person or organisation for free it is reasonable to conclude that in some way or another they personally support that case.

Now let us consider the ICJ example. It was very interesting to see the media and some civil society actors wanting to position the lawyers in South Africa’s ICJ case as heroes when there was no public information on whether they were paid or not. The above information suggests they are being paid, possibly even at their full commercial rate with public money, millions of Rands. In which case the basis for valourising them is dubious and it is worth asking why people have gone to such great lengths to do so. (I have an answer to this but it will emerge as I write about other issues).

Media silence

The most striking thing about all this is the across-the-board media silence about the above funding information. Various media houses have parliamentary correspondents and at least one of these focuses heavily on the finance and appropriations committees that deal with Budget and MTBPS documents. Yet not a single one appears to have mentioned the ICJ funding information in the tabled documents, or the substantial amount of information disclosed in the hearings on those documents. Nor have they reported on the hearings, which no doubt would have been of significant public interest.

My suspicion is that this is a case of media outlets playing quite complicated political games.

First of all, there is likely to be an understanding among some editors that South Africa’s case has been quietly ‘approved’ by the United States (as I have argued and will elaborate on in Part II of that series). Such editors like to serve US interests so they would not want to do anything to show the case in a bad light - such as reporting on the costs incurred.

Second, these editors and media outlets also have participated in putting the lawyers involved on pedestals and revealing how much they are getting paid would undermine that.

Finally, the party of the chairperson of the standing committee on appropriations, Mmusi Maimane, has received significant funding from Zionist-aligned funders such as Martin Moshal and when leader of the Democratic Alliance went out of his way to meet Benjamin Netanyahu in Israel - a move condemned by numerous others at the time.

Maimane would likely want to play along with something driven from the US but not want to compromise his funding sources. Moreover, he would be at risk of accusations of conflicts of interest if he tried to oppose the allocation. A media spotlight on his committee could make his political life very uncomfortable and he has traditionally been a darling of the main media houses.

Of course, none of these explanations justify the suppression of this public information on a matter which is clearly of major national and international significance.

I have had my own reservations about writing about some of the dynamics behind the ICJ case because I did not want to compromise it. But ultimately I think such self-censorship can do a lot of harm, especially when mainstream and alternative media sources are dominated by those who suppress information in order to influence public discourse to serve certain agendas.

The positive aspect of this article is that it provides some substantive evidence against claims that South Africa’s ICJ case has been funded by any external power. More on my thesis that the United States has encouraged and approved it in my next piece.