Judge Mlambo erred on state capture ruling – Jacob Zuma

President says Thuli Madonsela's decision to call for inquiry based upon untested suspicions

Judge Mlambo erred on state capture ruling – Zuma

Johannesburg – Just days after the ANC during its 54th elective conference said that a commission of inquiry into state capture must be instituted urgently, President Jacob Zuma is appealing the North Gauteng High Court judgment on state capture.

In court papers filed on Friday morning, Zuma said the High Court in Pretoria erred in law when it ruled that he was ill-advised and reckless when he launched an application to set aside then Public Protector Thuli Madonsela's remedial actions in her State of Capture report.

Zuma also insists that Madonsela's decision to call for a commission of inquiry was based on "untested suspicions".

In her report, Madonsela said a judge appointed by Chief Justice Mogoeng Mogoeng must oversee the judicial inquiry as Zuma was implicated in the allegations of state capture through his friends, the Gupta family.

Madonsela investigated allegations of undue influence on the state and state-owned entities by the Guptas.

A full bench of the High Court, led by North Gauteng Judge President Dunstan Mlambo, dismissed Zuma's application against Madonsela's report.


However, Zuma in his papers for leave to appeal said his right to approach the courts followed from the Constitutional Court's ruling on Nkandla.

The Constitutional Court found that Zuma had failed to uphold the Constitution when he failed to pay back the taxpayers' money spent on non-security upgrades at his Nkandla home.

The court also ruled that the Public Protector's remedial actions were binding unless reviewed by the courts.

Zuma in his papers, however, argues that the Constitutional Court gave him leeway to go to the courts should he be unhappy with the Public Protector's recommendations.

"Whereas the Constitutional Court held 'the president should have decided whether to comply with the Public Protector's remedial action or not. If not, then much more than his mere contentment with the correctness of his own report was called for. A branch of government vested with the authority to resolve disputes by the application of law should have been approached. And that is the judiciary'," Zuma argues in his appeal papers.

Court erred on costs

He also said Judge Mlambo erred in his judgment.

"In inquiring into the correctness of the remedial action in the review, the court erred in law in holding that 'the president was ill-advised and reckless in launching the challenge against the remedial action of the Public Protector," said Zuma in court papers.

Zuma is also arguing that the court erred by holding him personally liable for the legal costs as he was not cited in his personal capacity or given an opportunity to explain his conduct to decide on punitive ruling.

He is also appealing against the judgment that gave the commission of inquiry the same powers as the Public Protector in collection of evidence, and that the Chief Justice must appoint the judge to oversee the inquiry.

"This is legislating and offends the separation of powers doctrine," Zuma argues in his papers.

Zuma also states that the court erred when it "curtailed" his powers to appoint a commission of inquiry because he is conflicted.

He also claims that the decision for an inquiry was based on "prima facie evidence".

"Whereas in her report the Public Protector has made no factual findings, the court erred in law in finding that she did and impermissibly elevating untested suspicions as fact."