By Moshoeshoe Monare
In its legal battle with ANC deputy president Jacob Zuma, the National Prosecuting Authority has questioned Public Protector Lawrence Mushwana's integrity, powers and jurisdiction.
This relates to Mushwana's finding that former NPA head Bulelani Ngcuka violated Zuma's rights.
Scorpions head Leonard McCarthy filed an affidavit on Tuesday to caution Zuma - who is facing corruption charges - that he should not rely on Mushwana's 2004 report to defend himself and his constitutional rights, because the public protector's report was ridden with inaccuracies and flaws.
Zuma has repeatedly claimed his rights had been violated by the NPA, using Mushwana's report as evidence.
In 2004, the NPA tried to respond to Mushwana's report but was asked - apparently by President Thabo Mbeki - not to do so in order to avoid embarrassing Mushwana and also to minimise tension between the two institutions.
To protect the office of the public protector, the NPA's response was never made public.
Mushwana had concluded that Ngcuka violated Zuma's rights when he publicly pronounced that there was prima facie evidence of corruption against the country's then deputy president, but that the case was not winnable and he would not be prosecuted.
However, the NPA on Tuesday invoked its 2004 response to Mushwana's report by showing Zuma that the public protector's powers, integrity, ability to interpret the law and his jurisdiction were questionable.
The NPA's response - a joint statement by Ngcuka and former justice minister Penuell Maduna - said nobody but the courts had the right to question their decisions and that Mushwana had violated this principle.
"Since the NPA is, in terms of its functions and powers, subject only to the constitution and the law, no other institution can question or review such decisions, except the courts. Any person who is dissatisfied with a decision in this regard can have it reviewed by the courts.
"The public protector therefore does not have the power to review or question such a decision," the NPA's response stated.
It said that although Mushwana's report created an impression that he was careful not to question or review Ngcuka's decision, "this is in fact what transpired".
The NPA said the Public Protector Act did not empower Mushwana to investigate whether a conduct was constitutional or not.
It also questioned Mushwana's integrity, saying he had breached an agreement and broken the sub judice rule by pursuing his probe against Ngcuka, even after he agreed to hold back as Zuma's complaint related to evidence in the pending Schabir Shaik trial.
"However, the public protector reneged on this agreement and used the position taken by the NPA as evidence supporting his finding that there was a failure or reluctance (by Ngcuka and Maduna) to co-operate."
When he was quizzed by McCarthy to explain why he was reneging on the agreement, Mushwana went to the president's office, the NPA claims.
"It appeared that when the public protector was unable to deal with the fundamental principles of the law raised in the McCarthy letter, he sought the intervention of the president's office on the basis that the national director and the minister were refusing to co-operate."
"With respect, the view is held that in this regard the public protector did not just mislead the minister and the national director, he went further and misrepresented the office of the president."