Public Protector does not have powers to dictate to Zuma, court hears
24 October 2017
Pretoria – President Jacob Zuma's legal team has argued that former Public Protector Thuli Madonsela does not wield the power to call for a commission of inquiry into her State of Capture report.
Legal heavyweight Advocate Ishmael Semenya, SC, told a full bench of the North Gauteng High Court in Pretoria: "The Public Protector must tell us where she gets the power to say her findings must be investigated by someone else."
Semenya was arguing before Judge President Dunstan Mlambo, and High Court Judges Phillip Boruchowitz and Wendy Hughes, that it was unlawful for Madonsela to dictate to the president that he should establish a commission of inquiry.
He said Madonsela's remedial actions should be reviewed and set aside.
Madonsela was looking into allegations of an improper relationship between the president and the influential Gupta family, in relation to key appointments to Zuma's Cabinet and the awarding of contracts with state-owned enterprises.
Zuma challenging Madonsela's recommendations
She said, at the time, that she did not have the necessary resources to finish her investigation into state capture and recommended a judicial inquiry, which was to be appointed by the president.
Zuma is now challenging this recommendation in court.
The thrust of Semenya's submission was that the responsibility of appointing a commission of inquiry lay with the president.
However, Judge President Mlambo quickly interjected, telling Semenya that this was undisputed.
"Everyone in this room knows that," said Mlambo.
Undeterred, Semenya said the Public Protector was not competent enough to direct the president to establish a commission of inquiry.
Semenya then shifted his focus to the duties of the Public Protector, saying they were to investigate and report improper conduct.
'How can you recommend remedial action on suspicions?'
He argued she could only make recommendations for remedial actions once she had found evidence of improper conduct.
Mlambo asked: "The Constitution obligates the Public Protector to investigate a complaint and to make a finding arising from the investigation in a report.
"If, in that report, she found wrongdoing, can she make recommendations?"
To which Semenya replied: "What she investigates are allegations or suspicions of impropriety, she cannot make findings on allegations. She cannot report on suspicions and allegations, she must investigate and then make a finding.
"Her report must make a finding that there has been conduct that has been improper. What are you remedying if you have not found impropriety? How can you recommend remedial action on suspicions?"
Semenya suggested that there was no wrongdoing in the report and that her remedial actions did not stand.
The matter, which has been set down for three days, started shortly after 10:00 on Tuesday. News24
Zuma cannot be the judge and the jury - court hears
Pretoria – President Jacob Zuma risks playing the judge and the jury of his own court if he appoints a judge to oversee a judicial commission of inquiry to look into allegations of state capture, the North Gauteng High Court in Pretoria heard on Tuesday.
"The president does not have the inner workings of the judiciary. The Chief Justice is the most suitable to appoint a judge who will preside over the inquiry," said legal heavyweight, Vincent Maleka SC, who represents former Public Protector Thuli Madonsela.
Maleka told a full bench of the court in Pretoria that Zuma should not delay the establishment of a commission of inquiry any further.
He argued before Judge President Dunstan Mlambo and Phillip Boruchowitz and Wendy Hughes.
Maleka said Madonsela's remedial actions should be upheld instead of reviewed and set aside, as requested by Zuma.
Madonsela had been looking into allegations of an improper relationship between the president and the Gupta family in relation to key appointments in Zuma's Cabinet and the awarding of contracts at state-owned enterprises.
She said she did not have the necessary resources to finish her investigation into state capture and recommended a judicial inquiry, which was to be appointed by the President.
Mlambo quizzed about whether the public protector had acted constitutionally. He responded: “The public protector has powers to investigate improper conduct. She did that. She did not find conclusive findings because she did not have the necessary resources and funding."
Economic Freedom Fighters lawyer, advocate Tembeka Ngcukaitobi, told the court that "no one could be a judge in their own court," and thus it would be improper for Zuma to appoint a judge to oversee the inquiry.
He said such a move could also create doubt in the public's minds. "The reason the public protector asked Chief Justice Mogoeng Mogoeng to appoint a judge was because of a perceived conflict of interest," said Ngcukaitobi.
He submitted that Zuma would be acting rationally if he appointed someone who had been recommended by Mogoeng. Ngcukaitobi reminded the court that Zuma, on more than one occasion, announced publicly that he would establish a commission of inquiry.
"The President did not make pronouncements in front of his friends. It was in Parliament… and in public," he said.
He said Madonsela was well within her rights to ask Zuma to establish a commission of inquiry.
"The public protector not only acted lawfully, she also acted correctly by recommending remedial action."
Zuma should not use the courts to reverse his commitments on complying with statements he had been making in public, he said.
"The scheme of the remedial action is perfectly consistent with the Constitution."
Ngcukaitobi said it was critical that the person appointed be independent and added that “it is not enough for the President to give us his assurance that there will be independence."
He submitted that Zuma should pay legal costs personally.
The lawyer representing the United Democratic Movement and the Congress of the People, advocate Dali Mpofu SC, began his submissions by saying the case was one of the most important cases to grace South African courts.
"It can never get worse than state capture. It cannot get worse that the head of state is implicated in what amounts to criminal activity," said Mpofu.
On the question of Madonsela's observations, Mpofu said the former public protector's observations were serious enough to warrant an investigation because, at the time, Madonsela "believed she had enough to stop the rot".
Mpofu agreed with Ngcukaitobi’s submissions that Zuma “could not be the judge in his own case”. The case continues on Wednesday.