Zuma review tests extent of Public Protector's powers

President Jacob Zuma’s bid to set aside the remedial action instructing him to establish a judicial commission of inquiry to probe allegations of state capture will test how far the Public Protector’s powers stretch, notes a Business Day report. The review starts in the Gauteng High Court (Pretoria) today – just under a year since the State of Capture report was completed and its remedial actions made public. The matter has been set down for three days. Zuma has avoided establishing the inquiry, citing the pending review. Former Public Protector Thuli Madonsela completed the report as her term was about to expire. She directed the President to establish a commission of inquiry and recommended that Chief Justice Mogoeng Mogoeng appoint a judge to preside over it. Zuma argued that the recommendation was unconstitutional because only the President had the power to establish a judicial commission of inquiry. This, notes the report, is despite Zuma, his son Duduzane and his friends the Guptas being implicated in the report. Public Protector Busisiwe Mkhwebane is opposing the President’s bid to have the remedial action set aside. It is also being opposed by political parties including the EFF, the DA, the UDM and the COPE. Zuma has argued that the remedial action breaches the separation of powers doctrine and that the Public Protector does not have the power to dictate to a President how he should exercise his executive powers. In Mkhwebane’s heads of argument, she hit back, citing 'an exceptional case' and said it was 'impossible for him to do so (retain control over whom is appointed) lawfully because he is implicated in the subject matter of the commission'.

Full City Press report

Arguments by political parties are set out in a Mail & Guardian report. Instead of trying to review Madonsela’s report, Zuma should seek to review and set aside his own decision on the inquiry, the EFF, UDM, and COPE say in their joint written arguments, due to be presented by Advocates Tembeka Ngcukaitobi and Dali Mpofu. And Mkhwebane’s fall-back position should Zuma succeed is also disputed. The M&G report notes she wants the court to order Zuma to ensure her office gets the R31m extra she believes will be necessary to properly investigate state capture. However, others will argue that the state capture investigation should not be sent back to Mkhwebane for further investigation. Not only does she lack the money, but she has a backlog of more ordinary cases that should get attention, the Council for the Advancement of the South African Constitution (Casac) says in its papers. In addition, it points out, the Public Protector is a sort of investigative ombud, who settles complaints between an aggrieved party and a state entity that did wrong. ‘This is no typical complaint by a citizen against government malfeasance,’ writes Casac Advocate Michelle le Roux. ‘State capture is wide, pervasive collusion between high level state officials and private interest to enrich themselves to the detriment of all South Africans.’ The DA team, led by Advocate Steven Budlender, also argue that a commission of inquiry is fundamentally better suited to dealing with state capture because of its public nature. When the Public Protector investigates it is behind closed doors and by way of her questions; when an inquiry sits it allows complainants to interrogate witnesses – and evidence plays out in public, the party argues.

Full Mail & Guardian report