Public Protector does not have powers to dictate to Zuma, court hears

2017-10-24 15:52
President Jacob Zuma (AFP)

President Jacob Zuma (AFP)

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Pretoria – President Jacob Zuma's legal team has argued that former Public Protector Thuli Madonsela does not wield the power to call for a commission of inquiry into her State of Capture report.

Legal heavyweight Advocate Ishmael Semenya, SC, told a full bench of the North Gauteng High Court in Pretoria: "The Public Protector must tell us where she gets the power to say her findings must be investigated by someone else." 

LIVE: Zuma risks being 'judge and jury' if he appoints #StateCapture inquiry judge

Semenya was arguing before Judge President Dunstan Mlambo, and High Court Judges Phillip Boruchowitz and Wendy Hughes, that it was unlawful for Madonsela to dictate to the president that he should establish a commission of inquiry.  

He said Madonsela's remedial actions should be reviewed and set aside. 

Madonsela was looking into allegations of an improper relationship between the president and the influential Gupta family, in relation to key appointments to Zuma's Cabinet and the awarding of contracts with state-owned enterprises.

Zuma challenging Madonsela's recommendations

She said, at the time, that she did not have the necessary resources to finish her investigation into state capture and recommended a judicial inquiry, which was to be appointed by the president.

Zuma is now challenging this recommendation in court.

The thrust of Semenya's submission was that the responsibility of appointing a commission of inquiry lay with the president.

However, Judge President Mlambo quickly interjected, telling Semenya that this was undisputed.

"Everyone in this room knows that," said Mlambo. 

Undeterred, Semenya said the Public Protector was not competent enough to direct the president to establish a commission of inquiry. 

Semenya then shifted his focus to the duties of the Public Protector, saying they were to investigate and report improper conduct. 

'How can you recommend remedial action on suspicions?'

He argued she could only make recommendations for remedial actions once she had found evidence of improper conduct.

Mlambo asked: "The Constitution obligates the Public Protector to investigate a complaint and to make a finding arising from the investigation in a report. 

"If, in that report, she found wrongdoing, can she make recommendations?"

To which Semenya replied: "What she investigates are allegations or suspicions of impropriety, she cannot make findings on allegations. She cannot report on suspicions and allegations, she must investigate and then make a finding. 

"Her report must make a finding that there has been conduct that has been improper. What are you remedying if you have not found  impropriety? How can you recommend remedial action on suspicions?" 

Semenya suggested that there was no wrongdoing in the report and that her remedial actions did not stand. 

The matter, which has been set down for three days, started shortly after 10:00 on Tuesday. 

Read more on:    thuli madon­sela  |  jacob zuma  |  pretoria  |  state capture report  |  courts  |  public protector

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