President's powers, integrity come under court scrutiny
Publish date: 25 October 2017
Issue Number: 4334
Diary: Legalbrief Today
Category: State capture
President Jacob Zuma's integrity as a leader and limitations on his powers were central issues on day one of his application to review the remedial action contained in former Public Protector Thuli Madonsela's State of Capture report, notes Legalbrief. The Public Protector and opposition parties all argued in the Gauteng High Court (Pretoria) that Zuma’s powers were not unlimited – in contrast, says Business Day, with Zuma’s assertion that the Public Protector did not have the power to dictate to him that he appoint a judicial commission of inquiry on her terms. Zuma also argued that the power to establish commissions of inquiry and to decide on their terms is vested in the President alone. In her State of Capture report, handed down just before her term expired, Madonsela recommended that Zuma establish the commission. Because the President was conflicted, she also recommended that Chief Justice Mogoeng Mogoeng appoint the judge to head the judicial commission. Advocate Ishmael Semenya SC, for the President, argued that the recommendation infringed on the separation of powers doctrine, as the President could not be dictated to on how to use the executive powers solely vested in him. Semenya said the report, which had only observations and remedial actions, was not complete and the Public Protector could therefore not state remedial actions as there was no conclusive finding that had to be remedied. ‘It cannot be that you make remedial actions on alleged suspicions or alleged conduct,’ Semenya said. The remedial action was therefore premature.
On the issue of Zuma’s integrity, Judge President Dunstan Mlambo asked Semenya, why Zuma had not acted on allegations of state capture as early as 2016. ‘In April 2016, Zuma receives a letter from the Public Protector where serious allegations were made against him. He does nothing. In August the Public Protector tells the President that she is going to issue a report, he tries to stop it... He has done nothing (other) than to inform Parliament that he intends to institute an inquiry,’ he is quoted as saying in a News24 report. ‘Is that the action of a reasonable President in the context of the Constitution,’ asked Mlambo. He also questioned Zuma's integrity for not standing by his word of establishing a commission of inquiry as he has repeatedly promised. Semenya’s argument that it was unlawful for Madonsela to dictate to the President that he should establish a commission of inquiry brought this response from Mlambo: ‘He (Zuma) holds the view that no one can tell him how to act. Then why did he not act?’ Semenya defended Zuma, saying: ‘The President could not act until the review application was heard.’
Zuma risks playing the judge and the jury of his own court if he appoints a judge to oversee an inquiry, said Vincent Maleka SC, who represents the Public Protector. According to a second News24 report, Maleka told the court Zuma should not delay the establishment of a commission of inquiry any further. He argued before Mlambo and Judges Phillip Boruchowitz and Wendy Hughes that Madonsela's remedial actions should be upheld instead of reviewed and set aside, as requested by Zuma. Madonsela had been looking into allegations of an improper relationship between the President and the Gupta family in relation to key appointments in Zuma's Cabinet and the awarding of contracts at state-owned enterprises. She said she did not have the necessary resources to finish her investigation into state capture and recommended a judicial inquiry, which was to be appointed by the President. Quizzed by Mlambo about whether the Public Protector had acted constitutionally, he responded: ‘The Public Protector has powers to investigate improper conduct. She did that. She did not find conclusive findings because she did not have the necessary resources and funding.’
Zuma’s claim that Madonsela dictated to the President was challenged by Maleka‚ who said the President’s interpretation was ‘oppressive’ to the values of the Constitution. According to a TimesLIVE report, he said Madonsela’s remedial actions only required Zuma to fulfil his constitutional responsibility under section 84 of the Constitution. ‘…secondly‚ we will show that (Zuma) has a constitutional obligation to assist the Public Protector to take a remedial action that is effective‚ because the court would know that under (the Constitution) all organs of state‚ including the President‚ have a constitutional obligation to assist the Public Protector and ensure that her functions and remedial actions are effective. So when the Public Protector devised this remedy‚ she did not purport to dictate to the President‚ she required him to fulfil his constitutional responsibility or constitutional obligation to assist the Public Protector to give effectiveness to that remedy‚’ Maleka argued. He also argued that the interpretation that the Constitution gave only the President the discretion to appoint a commission of inquiry was flawed. ‘Because it means that it would be up to (Zuma)‚ in his absolute discretion‚ to decide when‚ how and on what terms he would establish the commission. In this case‚ the interpretation is even oppressive‚ because by all accounts everyone accepts‚ including the President‚ that there is a need to establish the commission‚’ he said.
Advocate Tembeka Ngcukaitobi, acting on behalf of the EFF, supported Maleka's views, saying section 96 of the Constitution clearly placed constraints on Zuma, who, he said, did not have ‘free rein to appoint a judicial commission’ on his own terms. A report in The Star notes Ngcukaitobi pointed out that in her report Madonsela had implicated Zuma, his son Duduzane, Minister of Mineral Resources Mosebenzi Zwane, Minister of Finance Malusi Gigaba and the Guptas in acts of wrongdoing. He admitted that Madonsela did not make a finding against Zuma and his perceived associates but argued that with the powers she had as a Public Protector she had a right to her observations during her investigation and to recommend the appointment of a judicial commission of inquiry, including the appointment of an independent judge.
