Zuma challenges public protector’s recommendation on state capture report

24 October 2017 - 07:42 By Ernest Mabuza
In his application filed in December last year‚ President Jacob Zuma said the remedial action was unlawful as it went against the separation of powers doctrine.
In his application filed in December last year‚ President Jacob Zuma said the remedial action was unlawful as it went against the separation of powers doctrine.
Image: GCIS

The High Court in Pretoria will on Tuesday hear an application by President Jacob Zuma to set aside the remedial action by former public protector Thuli Madonsela on alleged state capture.

Madonsela released a report‚ titled State of Capture‚ in November last year concerning allegations of an improper relationship between Zuma‚ other state officials and the Gupta family.

The report recommended that‚ because Madonsela did not have enough funds to finalise the investigation‚ Zuma appoint a commission of inquiry to complete the investigation.

Madonsela recommended that the commission be established by Zuma but that the presiding judge should be chosen by Chief Justice Mogoeng Mogoeng.

Zuma took issue with the remedial action and applied to court to have it reviewed and set aside.

Zuma believes the public protector has no right to tell him who should appoint a judge to head up the inquiry.

Zuma also asked for an order sending the State of Capture report back to the public protector for further investigation.

In his application filed in December last year‚ Zuma said the remedial action was unlawful as it went against the separation of powers doctrine.

“The Public Protector is directing remedial action in areas in which the Constitution has left to the Executive‚” Zuma said.

Zuma said Section 84(2)(f) of the constitution provided that the president of the country was responsible for “appointing commissions of inquiry”.

Zuma said the public protector did not have the power to direct the chief justice to select a judge to head the judicial inquiry.

“Again‚ this power can only be exercised by a President.”

The public protector had said Zuma could not decide who should chair the commission because he has a direct personal interest in the inquiry’s outcome.

“The Public Protector observed on numerous grounds that the President may have violated his obligations to avoid a conflict of interest under section 2.3 of the Executive Ethics Code.”

Madonsela’s successor‚ Busisiwe Mkhwebane‚ said her office had observed that Zuma may not have acted in line with his duty of professional ethics.

“Section 96 of the Constitution accordingly precludes the President from retaining control over the commission‚ as he is alleged to have a direct personal or financial interest in the outcome of the commission‚” Mkhwebane said in her affidavit.

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