Zuma's powers not absolute: EFF

President Jacob Zuma’s constitutional powers to appoint a commission of inquiry are not absolute but are subject to a number of constraints‚ the Economic Freedom Fighters has argued in court.

Advocate Tembeka Ngcukaitobi‚ representing the EFF‚ concurred with Public Protector Busisiwe Mkhwebane’s lawyer Advocate Vincent Maleka’s earlier argument that Zuma had "no free rein".

He (Ngcukaitobi) submitted in the High court in Pretoria on Tuesday that Zuma was personally implicated in former Public Protector Thuli Madonsela’s scathing State of Capture report and therefore his powers to appoint a commission of inquiry become inhibited.

Ngcukaitobi said the fundamental error that Zuma makes is that Madonsela sought to take away his powers to appoint such a commission of inquiry.

“The remedial action of the Public Protector has not removed the powers to appoint but the context of the exercise of that power is constrained. In other words he is not entitled to exercise that power where the outcome will be irrational. He is not entitled to exercise that power when the outcome of that exercise of that power will be to infringe the Bill of Rights‚” Ngcukaitobi said.

He said all these constraints factored in or served to neutralise the exercise of the power by the president‚ saying he must appoint the commission of inquiry only in a way that would be consistent with the principle of legality.

Ngcukaitobi said Zuma must also exercise this power only in a way that would be consistent with the Bill of Rights and that the other constraint was about the constitutional architecture.

“He must do it in the context of the powers of other entities that are provided for in the constitution. In this case he may not take action that will infringe the powers of the Public Protector under section 181 (of the Constitution) or section 182 for that matter. In fact under section 181 he is under the positive obligation to support and protect and assist the public protector in the discharge of her own functions‚” he said.

According to Ngcukaitobi‚ the Constitution imposed two obligations on Zuma’s powers to appoint the commission of inquiry.

He said the first obligation was to avoid the risk of conflict of interest and the second was an obligation to avoid placing his own interest ahead of his public obligations.

Ngcukaitobi opened his submissions by noting that: “Circumstances of this case are extraordinary but it is only the facts that are extraordinary because it has never happened in the history of the country that a sitting head of state is implicated in allegations as significant as the current allegations but the law is by no means extraordinary”

Zuma approached the court for an order setting aside Madonsela's directive that he appoint a commission of inquiry to investigate allegations of state capture. The report recommended that the presiding judge of the commission be chosen by Chief Justice Mogoeng Mogoeng. Madonsela released the report‚ titled State of Capture‚ in November last year‚ detailing allegations of an improper relationship between Zuma‚ some state officials and the controversial Gupta family.