This was the unanimous view of Public Protector Busi Mkhwebane, the EFF, UDM, DA, Cope and Vytjie Mentor, as well as the Council for the Advancement of the South African Constitution (Casac), in the high court in Pretoria on Tuesday.
Zuma had asked the court to set aside former public protector Thuli Madonsela’s State of Capture report, which ordered him to set up a commission of inquiry to probe state capture.
The report, however, recommended that the judge to lead such a commission should not be appointed by Zuma, but the chief justice. Zuma challenged this recommendation.
Acting for Mkhwebane, Vincent Maleka SC fired the first salvo at Zuma, following his earlier submission, through his lawyer, advocate Ishmael Semenya SC, that he, as president of the country, can’t dictate how to establish a commission of inquiry and appoint a judge.
Maleka said Zuma was implicated in the State of Capture report and that the constitution prohibited him from investigating himself. Lawyers acting for the defence were unanimous in their view that Zuma was prohibited to do so under section 96 of the constitution. The section states that the president has an obligation to avoid the risk of a conflict of interest and also has a duty to act ahead of his personal interests.
Supporting Maleka’s view, advocate Tembeka Ngcukaitobi, acting on behalf of the EFF, said section 96 of the constitution clearly placed constraints on Zuma, advising he did not have “free rein to appoint a judicial commission” on his own terms.
Ngcukaitobi pointed out that in her report Madonsela had implicated Zuma, his son Duduzane, Minister of Mineral Resources Mosebenzi Zwane, Minister of Finance Malusi Gigaba and the Guptas in acts of wrongdoing.
He admitted that Madonsela did make a finding against Zuma and his perceived associates but argued that with the powers she had as a public protector she had a right to her observations during her investigation to recommended the appointment of a judicial commission of inquiry, including the appointment of an independent judge. The court further heard Zuma himself had confirmed that, based on the State of Capture report, a judicial commission of inquiry was indeed a priority.
Ngcukaitobi singled out three dates, June 1 and, on two occasions June 22 this year when Zuma replied to questions in Parliament. He said that in all three instances, Zuma had made a commitment to establish a commission based on Madonsela’s findings.
“He must not be allowed to undo a commitment he made to Parliament. His decision has to be given effect,” Ngcukaitobi said. He also reiterated an earlier ruling of the Constitutional Court in the Nkandla matter that the remedial action of the public protector was binding.
Ngcukaitobi made the submission after Semenya, acting for Zuma, had earlier argued that the commission of inquiry would not always result in the desired outcomes of Madonsela’s remedial action.
Semenya said Zuma could set up a commission of inquiry and allow it to conduct the investigations but was not compelled by its findings.
Zuma’s counsel also said Madonsela did not make an adverse finding against Zuma, which meant that the president was not obligated to establish a commission.
Semenya said Madonsela’s recommendation that Zuma was obligated to set up a judicial commission allowing Chief Justice Mogoeng Mogoeng to appoint a judge was a transgression of the “separation of powers” doctrine.
It was clear, during the opposition to Zuma’s claim, that the trump card was the Nkandla ruling, which ordered that Zuma had an obligation and duty to protect the interests of the state by not allowing non-security features to have been included in the upgrades at his home.
In that ruling, Zuma was ordered to pay R8 million for the non-security upgrades to his house. He was also told in no uncertain terms that the public protector’s remedial action was binding.
The hearing continues.