Pretoria - President Jacob Zuma will not be dictated to by the Public Protector, or any other State functionary, the High Court in Pretoria heard on Tuesday.
"One of the points we raise is that the remedial action [prescribed by former Public Protector Thuli Madonsela] is telling the president [Zuma] that he has no discretion on the matter but I as a functionary, a Chapter 9 institution, am telling you that you must appoint a commission of inquiry, and I even tell you how to go about it. That is dictation of the worst kind," Zuma's lawyer, Advocate Ishmael Semenya SC argued.
Semenya said the Public Protector cannot prescribe remedial action, unless she had made certain adverse findings depicting maladministration.
"You don't just invoke remedial action because it is a power in the Constitution," said Semenya.
Zuma’s attorney submitted that an appointment of a commission of inquiry, if "done through dictation" is unlawful.
"The law is clear, the functionary must come to the decision must come to that decision on his or her own accord and cannot do so on the dictates of another. In this case, the appointment of a commission of inquiry, as directed by the remedial action, would be an appointment by dictation," said Semenya.
Earlier, the Democratic Alliance (DA) told the High Court that was actually “helping himself” by not speedily appointing the judicial commission of inquiry to probe State capture as recommend by Madonsela.
“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,” Advocate Anton Katz SC, for the DA, argued.
“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 October last year, the then Public Protector, Madonsela, recommended that Zuma appoint a commission of inquiry headed by a judge.
The DA approached the court, requesting it to declare that Zuma had failed to comply with the Public Protector’s remedial action. The official opposition wants the court to compel Zuma to establish the inquiry.
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 a commission of inquiry, headed by a judge appointed by Chief Justice Mogoeng Mogoeng, be appointed 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 argues that the Constitution gives him alone the right to appoint the head of a judicial commission of inquiry.
Incumbent Public Protector Busi Mkhwebane on Tuesday, supported the DA’s court bid seeking an order compelling Zuma to establish a commission of inquiry on State capture, as was recommended by 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 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.
Judgement was reserved on the matter, with the judge promising that he would consider the public interest in the matter and expedite the process of applying his mind.