Public Protector Busisiwe Mkhwebane File picture: Bongani Shilubane/ANA Pictures

Johannesburg - Protector Busisiwe Mkhwebane has opposed President Jacob Zuma’s attempts to temporarily block the establishment of a judicial commission of inquiry into state capture in the country.

Her move came less than a day after she was forced into a humiliating stepdown in her first big case: an instruction to parliament to change the mandate of the South African Reserve Bank and to order the Special Investigating Unit to recover a R1.125 billion “lifeboat gift” from Absa bank.

Although slated in that instance, she is likely to receive much more support for opposing Zuma’s to avoid a commission of inquiry.

The president has gone to court on the grounds that believes that some of the remedial actions directed by the previous Public Protector are irregular‚ unlawful and unconstitutional.

His legal advice suggests that the remedial action on the appointment of a Commission of Inquiry undermines the separation of powers doctrine.

Mkhwebane’s action will surprise many people.

The previous Public Protector, Thuli Madonsella, in her State of Capture Report, implicated Zuma, his family and Gupta-linked companies in the series of acts of abuse of state funds to benefit the Guptas.

Mkhwebane disagreed with Zuma that remedial action should not be taken until he has had a chance to clear his name.

In a strongly worded counter-affidavit, the Public Protector said Zuma and the government had publicly expressed their support for the establishment of the commission, saying the commission could accordingly be established and to begin its work.

“This will not preclude the courts from determining the legal question concerning the lawfulness of the remedial action,” she said.

Mkhwebane said Zuma’s application only sought to retain control over various aspects of the commission’s functioning, saying ‘because the allegations in the report implicate him personally and financially, it is not permissible for him to do so.

“His challenge to these aspects of the remedial action has no prospect of success. 

“It is not permissible for the subject of remedial action to disregard it because review proceedings have been launched,” Mkhwebane said.

She was adamant that remedial action must be complied with until a court had set aside or granted an order suspending its implementation.

“It is not in the public interest to stay the implementation of the remedial action. It is urgent that the allegations of state capture be properly investigated and determined as soon as possible,” Mkhwebane maintained.

In her opposition to Zuma’s application, Mkhwebane supplied the courts with copies of Hansard reports since May this year, in which Zuma and his government made commitments that they were not opposed to the establishment of the commission.

In one of Zuma’s replies in parliament, the President told the national assembly on June 22 that”: “We have taken a decision to establish the judicial commission of inquiry and the emails (Gupta) will be part of that. So we are not leaving them unattended to, then we will be able to speak about the emails with a serious scientific investigation which would tell us exactly what happened and to what extent are they disrupting the life of South Africans.

According to Mkhwebane, Zuma’s parliamentary responses had shown that he and the government had unequivocally accepted that there must be a commission of inquiry into the evidence contained in the State of Capture Report.

Mkhwebane was adamant that such an appointment must go ahead and Zuma should not be given an opportunity to retain control over it.

“He is precluded from doing so because he is personally implicated in the allegations to be investigated by the commission. He has an alleged financial and personal interest in the resolutions of those allegations,” Mkhwebane argued.

Political Bureau