Public Protector Busisiwe Mkhwebane on Tuesday supported the Democratic Alliance’s (DA's) court bid seeking an order compelling President Jacob Zuma to establish a commission of inquiry on State capture, as was recommended by former Public Protector Thuli Madonsela.
Advocate Hamilton Maenentje SC, representing the Public Protector, argued that it is in the public interest for the allegations of State capture to be thoroughly investigated in order to unearth the truth.
“It’s important that the effectiveness of the office of the Public Protector is borne in mind. If review applications lodged mean all the reports of the Public Protector must stay in the shelves until the review applications are finalised, even by the highest court in the land, then the office will become ineffective and those that are meant to be protected by the office would be rendered remedy-less,” Maenentje told High Court Judge Motsamai Makume.
Maenentje said the special recommendation made by Madonsela, that the commission of inquiry be headed by a judge appointed by Chief Justice Mogoeng Mogoeng, and not by Zuma, avoids a potential conflict of interest.
“This is not a case in which the president wants to appoint a commission of inquiry to investigate a train accident where the president is not implicated. Here the president is implicated,” said Maenentje.
The high court in Pretoria is hearing Zuma’s counter-application against the DA’s case to force him to establish the Judicial Commission of Inquiry into allegations of State capture.
In October last year, the then Public Protector Thuli Madonsela recommended that Zuma appoint a commission of inquiry headed by a judge chosen by the chief justice.
The DA approached the court, requesting it to declare that Zuma had failed to comply with the Public Protector’s remedial action.
Zuma has taken Madonsela’s “State of Capture” report, which shed light notably on Eskom’s dealings with the Gupta family, on review because he differs with her directive that the commission of inquiry be headed by a judge appointed by Chief Justice Mogoeng Mogoeng, to further probe the funnelling of state resources to politically connected businessmen.
Madonsela had given Zuma 30 days to appoint the commission of inquiry, and the DA has gone to court to force him to implement the remedial action. But the president also argues that the Constitution gives him alone the right to appoint the head of a judicial commission of inquiry.
On Tuesday, Maenentje submitted that Zuma’s counter application “must fail”.
“We submit that the counter application must fail … and the president be compelled to comply,” said Maenentje.
Earlier on Tuesday, the DA’s representative, Advocate Anton Katz SC, for the Democratic Alliance, argued that Zuma is “helping himself” by not speedily appointing the judicial commission of inquiry to probe State capture.
“That the president [Zuma] has brought his review [application] is not good enough. We submit that what the president is doing in this case, by saying that I have brought the review and therefore I don’t have to comply until my review is finalised, amounts to a licence to self-help. He is helping himself by saying I am reviewing the remedial action and courts have previously said that’s not how it works,” said Katz.
“Until there is an order of court in place – suspending, setting aside or dealing with it [the Public Protector report] in any way – the president is disregarding the Public Protector’s remedial action willy-nilly in violation of the rule of law. What he is doing amounts to self-help.”
In June, Zuma responded to the DA’s court application with a counter application for a stay on implementing Madonsela’s report pending the outcome of the review, if necessary.
In his arguments for a review, Zuma states that he was not compelled to comply with a report of the Public Protector if he had cause to doubt its correctness.