Zuma undermining Public Protector - Mkhwebane
Publish date: 17 July 2017
Issue Number: 734
Diary: IBA Legalbrief Africa
Category: South Africa
In her affidavit in response to the counter-application by President Jacob Zuma for a stay of execution of former Public Protector’s remedial action in her State of Capture report, Busisiwe Mkhwebane has accused the President of undermining the Chapter Nine institution. This, notes a Business Day report, is the second time Mkhwebane has accused the President of undermining the Public Protector. In papers filed with the Gauteng High Court (Pretoria), Mkhwebane invoked the Constitutional Court’s judgment on Nkandla that reaffirmed the Public Protector’s powers by ruling that the office’s remedial action was binding and admonished the President for failing to comply with it. She also referred to the Supreme Court of Appeal finding in the Hlaudi Motsoeneng case that the Public Protector’s remedial action was binding. The Public Protector said she believed Zuma should have complied with the remedial action by 2 December 2016. The President had instead opted to institute a review application on the State of Capture report. Mkhwebane said in her papers that it was incumbent on Zuma to bring an application to suspend the remedial action or apply for a stay of implementation, but he had not done so. Zuma had brought the counter-application only in response to the opposition DA’s application to the court that it compel him to comply with the Public Protector’s remedial action. Mkhwebane said the President believed that ‘a mere launch of the review application’ had the effect of staying the implementation of the remedial action in the report. ‘The failure of the President to do so is inconsistent with the rule of law, undermines the effectiveness of the Public Protector’s remedial action and is inconsistent with binding precedent of the Constitutional Court and the SCA,’ she said.
Meanwhile, the DA is not letting Mkhwebane off for her recent controversial remarks on the role of the South African Reserve Bank, says a second Business Day report. Party members have announced that they would request Parliament’s Justice Committee to summon her to explain herself. She has since backtracked in court documents, admitting she had no powers to direct Parliament to review legislation governing the bank’s mandate. The DA in Parliament is not convinced, with MP Glynnis Breytenbach announcing that she would write to Justice Committee chair Mathole Motshekga, requesting that he summon Mkhwebane to explain the mistake that led to the imbroglio. ‘Mkhwebane has admitted her findings on the mandate of the Reserve Bank were wrong and has put it down to ‘‘an honest mistake’’,’ said Breytenbach. ‘This is simply unacceptable and has already cost the South African economy when the rand’s value fell after her latest report and remedial action.’ Motshekga, however, reportedly said it would be hasty to summon Mkhwebane to address the committee on issues that were the subject of a legal challenge by Absa bank and other parties.