Zuma U-turn catches lawyers off guard

In yet another last-minute U-turn, President Jacob Zuma has abandoned a crucial part of his case to review former Public Protector Thuli Madonsela’s State of Capture report – the section that asked for the investigation to be sent back to the Office of the Public Protector for further investigation. However, notes Legalbrief, the central part of his case in the Gauteng High Court (Pretoria) – to have her remedial action reviewed and set aside – still stands. As a result judgment was reserved yesterday when Judge President Dunstan Mlambo gave the eight respondents until tomorrow to file two-page supplementary arguments. He ordered that these must deal with the legal consequences of the withdrawal. Zuma would then have to file supplementary arguments, if necessary, by Tuesday 4pm. The President made another about-turn recently in the SCA, admitting through his lawyer, Advocate Kemp J Kemp, that the law used to drop charges against him by the NPA in 2009 was irrational. A News24 report notes Advocate Steven Budlender, who represents the DA, seized the opportunity yesterday to request a dismissal of the entire application. ‘We have an abandonment in the last minute, literally the last second of my learned friends' (Advocate Ishmael Semenya’s) address. This is a fundamental part of the relief… I submit that this demonstrates that the court should dismiss this application as a whole,’ he said. Representing the UDM and COPE, Dali Mpofu SC, said the decision ‘threw a spanner in the works’. And the lawyer representing the EFF, Tembeka Ncukaitobi, said he was concerned about Zuma's commitment to establishing a judicial commission of inquiry.

Zuma’s submission shocked the judges and lawyers, says a report in The Mercury. Semenya waited for all legal counsels acting for the respective clients to detail their opposition to Zuma’s main application, before he dropped the bombshell. It appears Semenya’s late withdrawal came after he was convinced he had made a formidable case before the Bench that Madonsela had failed to find Zuma guilty of any acts of wrongdoing related to state capture. Semenya maintained that Parliament appointed Madonsela as the Public Protector to conduct any investigation of wrongdoing or suspicion of it. ‘She was also supposed to report her findings, including her remedial actions, to Parliament. In this report, she failed to do what she was appointed to do,’ Semenya said. He maintained there was no law in the Constitution that allowed Madonsela to instruct Zuma to set up a commission of inquiry, but conceded the Public Protector did have the power to instruct the Hawks to conduct a criminal probe, and for the NPA to prosecute any criminal case brought by her office to the prosecuting authority. He said those opposing Zuma’s main application had failed to ‘locate a law that says the Public Protector has the power to push beyond the boundaries of her power’.

Two options now exist, according to the DA’s James Selfe in a BusinessLIVE report. First, if Zuma’s review application is dismissed, it means the remedial action will be implemented as is, he said. Madonsela’s remedial action said that Zuma should institute a judicial commission of inquiry to investigate allegations of state capture and that Chief Justice Mogoeng Mogoeng should select the judge to chair the commission. Second, if the review application succeeds, it would signal ‘the end of things’, Selfe said. ‘What will then happen is that one avenue into the inquiry into state capture again will be shut down – not all, because there are parliamentary inquiries as well. But the Public Protector and the commission of inquiry would be shut down.’ Selfe said the DA saw the last-minute announcement, which followed two days of intense legal argument, as ‘cynical beyond description’. He said Zuma withdrew whenever there were no legal arguments left.

Earlier, UDM and COPE asked for an order compelling the President to implement the remedial action, according to a TimesLIVE report. Mpofu placed a draft order before the court in which it is requested that the remedial action be declared binding. Mpofu also asked the court to find that the President’s failure to comply with the remedial action be declared inconsistent with the Constitution. The draft order also states that the order must be delivered to the Chief Justice within five days‚ and that the President must appoint the commission of inquiry within 15 days of the order. If the draft order is granted‚ Mogoeng would have five days to provide one name to the President of a judge he should appoint within five days of receiving the order. The parties also want the court to give the commission powers of evidence collection equivalent at least to that of the Public Protector. ‘Given the wide powers of the court we want to ask for relief that would vindicate and protect the rights of the public,’ Mpofu told the court, according to a Mail & Guardian report. The draft order also directs Zuma to pay the costs of the litigation out of his own pocket. Mpofu argued that not only was Zuma’s legal position incorrect and untenable, but that the vast importance of state capture required unusual action. If the Gupta family had indeed known about Cabinet appointments before they happened, Mpofu said, that would be ‘basically, politically and constitutionally, the end of the world. Because at the point at which a private entity that has a business interest that involves the President’s son and his admitted friend starts to appoint Cabinet Ministers, we can kiss democracy goodbye’.