No reprieve for Zuma – DA and Public Protector
Publish date: 13 September 2017
Issue Number: 4305
Diary: Legalbrief Today
The DA and Public Protector Busisiwe Mkhwebane yesterday made common cause against President Jacob Zuma, both telling the Gauteng High Court (Pretoria) that Zuma must not be granted a reprieve in setting up a commission of inquiry into state capture. And, notes a Mail & Guardian report, the fact that Zuma is implicated in state capture himself means he should not get a say in how state capture is now further investigated, the opposition party and Mkhwebane agreed. Along the way, DA Advocate Anton Katz told Judge Motsamai Makume the court had no choice but to declare that Zuma had failed his constitutional duty again, because he was ‘ignoring his constitutional obligation purely because he has a different view’ on it. Zuma, meanwhile, offered a new and seemingly contradictory explanation as to why he originally did not seek a stay of his obligation to set up an inquiry. Instead of doing so, Zuma launched a full review of the entire State of Capture report compiled by Mkhwebane’s predecessor Thuli Madonsela. Because he had only been given 30 days to establish such a commission, a deadline that expired in early December 2016, he had not had the time to go to court for an interdict application, Zuma had initially argued in papers on the matter. Yesterday, however, Advocate Ishmael Semenya, for Zuma, told the court that Zuma could not have applied for such a stay because he would be interdicting himself, a legal absurdity. Zuma had been ordered to take action, in setting up a commission, Semenya said, and could not seek an order to prevent himself from doing so. The report notes Zuma has since sought just such a stay, an order to prevent him from setting up an inquiry, as part of a ‘conditional counter-application’ also heard yesterday, interwoven with the DA’s main application that Zuma be ordered to establish an inquiry. Makume reserved judgment, but promised to ‘expedite’ it ahead of the hearing, due in October, of Zuma’s review application on the Public Protector’s State of Capture report.
Why does he have a problem with the Chief Justice appointing the judge, and 'does he not trust the wisdom and decision of the Chief Justice?’ This, according to a News24 report, was the thrust of the DA’s argument. Katz said Zuma was basically seeking an order preventing Madonsela's remedial action in her State of Capture report. He went on to argue that granting such a ‘restraining order ‘against the Public Protector's remedial action would be an intrusion into the realm of the statutory constitutional powers that the Public Protector holds. He added that the Public Protector was a constitutional body and that the court should be careful in granting, what he referred to as, a ‘restraining order’. The DA has also asked the court to hand down a declaratory order that Zuma is violating his constitutional duty by delaying the implementation of the remedial actions. The party is also seeking an order that Zuma establish the inquiry, pending the review to have the remedial action set aside. Katz was critical of Zuma's argument that if he established the commission before the review was heard, that the review would then be rendered moot. He said this was irrelevant, as case law showed that a review is not grounds for a stay of execution of administrative duties. Katz reasoned that Zuma’s argument – that if he establishes the commission before the review is heard, that the review would then be rendered moot – was irrelevant, as case law showed that a review was not grounds for a stay of execution of administrative duties.
Zuma will not be dictated to by the Public Protector, or any other state functionary, the court was told, according to a report on the IoL site. ‘One of the points we raise is that the remedial action is telling the President that he has no discretion on the matter but I as a functionary, a Chapter Nine institution, am telling you that you must appoint a commission of inquiry, and I even tell you how to go about it. That is dictation of the worst kind,’ Semenya argued. He said the Public Protector cannot prescribe remedial action, unless she had made certain adverse findings depicting maladministration. ‘You don't just invoke remedial action because it is a power in the Constitution,’ said Semenya. Zuma’s attorney submitted that an appointment of a commission of inquiry, if ‘done through dictation’ is unlawful. 'The law is clear, the functionary must come to that decision on his or her own accord and cannot do so on the dictates of another. In this case, the appointment of a commission of inquiry, as directed by the remedial action, would be an appointment by dictation,’ said Semenya.
In effect, the remedial action breached the separation of powers‚ Semenya argued. ‘The remedial action instructs the President (a member of the executive) to appoint a commission of inquiry. The remedial action, to that extent‚ offends against the separation of powers doctrine, which is part of the rule of law‚’ Semenya argued. According to a BusinessLIVE report, Semenya told the court that the Public Protector’s remedial action ‘removes the President’s discretion to appoint or not appoint a commission of inquiry. This offends against the doctrine of separation of powers and is‚ for this reason‚ unconstitutional’. He argued that the remedial action was not an appropriate remedy to address the conduct complained about in the State of Capture report. ‘The Public Protector has not made any finding on maladministration. You cannot exercise the power the Constitution says you have if you have not made any findings‚’ Semenya argued, contending that there is merit in the President’s challenge of the remedial action.