State Capture: Legal woes piling up for Zuma after he loses SCA appeal

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Former president Jacob Zuma.
Former president Jacob Zuma.
Felix Dlangamandla
  • More legal woes are piling up for former president Jacob Zuma.
  • The SCA in Bloemfontein has dismissed, with costs, Zuma's application to challenge the remedial action of the former Public Protector Thuli Madonsela.
  • Zuma, who was directly implicated in the "State of Capture Report" published by Madonsela in 2016, failed to appoint a commission of inquiry into state capture within 20 days, as recommended by her.

The legal woes keep piling up for former president Jacob Zuma.

On Friday, the Supreme Court of Appeal dismissed, with costs, Zuma's application to challenge the remedial action of former Public Protector Thuli Madonsela.

The court ruled that, during his tenure as president, Zuma, who was directly implicated in the improper conduct referred to in the State of Capture Report published by Madonsela in 2016, was required to appoint a judge selected by the chief justice to head a commission of inquiry into the allegations of state capture, using the report as a starting point.

READ | Zuma loses SCA bid against personal costs order over Madonsela report

Zuma appealed the order a full Bench of the Gauteng High Court in Pretoria granted against him.

The court ordered Zuma to pay, in his personal capacity and on a punitive scale, the costs of his failed application to review and set aside a decision by Madonsela.

His appeal was heard on 28 August in the Supreme Court of Appeal (SCA).

Judge Ashton Schippers said: "Madonsela recommended that the commission be set up within 30 days and present its report with findings and recommendations to the president within 180 days.

"Thereafter, within 14 days, Zuma was required to submit the report to Parliament, together with 'an indication of his implementation of the commission's recommendations,'" Schippers added.

READ | Madonsela: Remedial actions remain binding

Zuma, however, did not appoint the commission within 30 days.

Instead, on 2 December 2016 and in his capacity as president, Zuma launched an application in the High Court, in which he sought an order reviewing and setting aside the remedial action required by the Public Protector, and that the matter be remitted to her for further investigation.

Zuma alleged that the remedial action was unconstitutional because it directed him to establish a commission of inquiry, contrary to the provisions of the Constitution, which reserved that power for the president.

"He said that he could not be instructed by anyone as to when and how he should appoint a commission of inquiry, and if he were to implement the remedial action, the commission 'would be invalid and a nullity', and would amount to the 'exercise of an executive power under dictation'.

"The appointment of a judge by the chief justice to head the inquiry, Zuma said, was unconstitutional and a breach of the doctrine of separation of powers, because the chief justice has no such power under the Constitution," said Schippers.

Background

In her report, Madonsela revealed troubling allegations of improper relationships between Zuma, his Cabinet ministers, senior government officials, and the Gupta family.

Some of the allegations against Zuma, his son Duduzane, former ministers and the Gupta family members have been revealed in the state capture commission of inquiry led by Deputy Chief Justice Raymond Zondo.

Zuma recently asked Zondo to recuse himself on the basis that he is biased. The former statesman claims they have a historical family relationship.

READ | A timeline of Zuma's relationship with the Zondo commission

He made it clear, through a lawyer's letter, that he will not appear at the commission of inquiry to give evidence until Zondo removes himself as chair.

This after Zondo issued new, non-negotiable dates for Zuma's appearance, following a number of reasons provided to the commission to explain why he could not appear. These ranged from his illness to dealing with other pending court matters involving him.

But Zondo has since clarified the family history, saying that, in the mid-1990s, he fathered a child with the sister of Zuma's estranged wife, Thobeka Madiba. At the time, however, Zuma and Madiba were not in a relationship, he said.

He is also fighting 16 charges, including fraud, corruption, money laundering and racketeering charges, in the KwaZulu-Natal High Court in Pietermaritzburg.

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