Johannesburg - Fresh from surviving a motion of no-confidence in his leadership, President Jacob Zuma has now turned his attention to former public protector Thuli Madonsela whom he is accusing of trying to frustrate the grounds for review by people affected by the State of Capture report.
Zuma has also cited the principle of separation of powers between the legislature, judiciary and the executive, insisting that Madonsela’s remedial actions fell foul of this cornerstone of any democratic state.
“The nature of the remedial action straddles the separation of powers doctrine which is the rule of law,” Zuma has argued. “The public protector is directing remedial action in areas which the constitution has left to the executive.”
Zuma, in an affidavit filed with the North Gauteng High Court on Friday, seeking the review and setting aside of the report that detailed how the president’s controversial friends, the Gupta family, allegedly held influence in state-owned institutions, accused Madonsela of trying to take his discretionary powers away.
Zuma was responding to the State of Capture report’s remedial actions that he set up a commission of inquiry that will be headed by a judge solely selected by Chief Justice Mogoeng Mogoeng as directed by Madonsela. The president argued in his affidavit that this remedial action was unlawful and would result in him abdicating his powers to another person and amounted to being instructing as to when he should exercise his executive power.
“To accede to that instruction, in the remedial action, would be to abdicate my responsibility as I would be acting under dictation,” he said. “The resultant consequences would be that the establishment of that judicial inquiry, under these circumstances, would be invalid and a nullity."
An adamant Zuma argues that he “cannot be instructed by anyone as to when I should appoint a commission of inquiry or as to how I should appoint such a commission of inquiry".
The president also argues that the remedial actions of the public protector violated the Ethics Act, the Public Protector Act, the Commissions Act and the constitution.
Zuma said a commission of inquiry into the complaints of such a complex issue (state capture) may go well beyond the 30 days within which Madonsela asked the matters to be reported upon.
He asked the court to set aside the "State of Capture" report on the grounds that it is inconsistent with the constitution and unlawful.
Madonsela told Independent Media last month that taking the "State of Capture" report on review is not going to help anyone implicated in it. She said the best way forward would be the finding of a judge, once the commission of inquiry is set up, who will preside over the commission in undoing whatever mistakes are in the current report.
“A review process is not going to do that. At worst, it will confirm that everything I did was right,” she said. “The nature of the report to have words like ‘it appears’ was precisely because there (are) unheard parts of evidence that needed to be heard before I could make findings.”
Madonsela said her actions did not seek to interfere with the president’s power to appoint judges to head a commission of inquiry.
“The interpretation that informs the remedial action is one that we distinguish between selecting and appointing,” she said.
“In the report, I explain very clearly why the process of selection is being defied; it’s really to protect the president.”
She said Zuma disagreed with her in the Nkandla matter when she stuck to the letter of the law because the executive act required him to decide how to implement the public protector’s remedial action.
“I then made sure he was not a judge in his own court,” she said. “However I was very careful that I did not interfere with his power to appoint a commission.”
Zuma said in court papers that remedial action is legally binding whereas a commission of inquiry makes recommendations merely for advice for the president who may or may not act in terms of its recommendations. He said Madonsela had offered no cogent reasons as to why the probe must be outsourced to a commission of inquiry.
“On the present facts, it is only because her term of office was coming to an end, yet the office of the public protector has a life beyond any incumbent. This is irrational and stands to be set aside for that reason,” Zuma said.
He said following Madonsela’s remedial actions he would be acting as judge and jury in his own course since the commission of inquiry would be reporting to him for any action or inaction on its recommendations.