President Jacob Zuma has – at the last minute – abandoned his attempt to send the inquiry into state capture back to new Public Protector Busisiwe Mkhwebane for further investigation.
Counsel for Zuma, Ishmael Semenya, told the court the president has decided to appoint a commission of inquiry and might even let Chief Justice Mogoeng Mogoeng decide who the judge should be, but he had no instructions on this aspect.
This was after Judge President Dunstan Mlambo asked him what the court should make of Zuma’s announcement in parliament that he had decided to appoint a commission.
Semenya said Zuma still persisted with his argument that the court should set aside the remedial action directed by former public protector Thuli Mandonsela in her State of Capture report.
The president maintained he had the power to appoint judicial commissions of inquiry and that the public protector could not dictate how this should be done.
Counsel for the DA, Steven Budlender, argued that this meant the court should dismiss the whole of the president’s application, as he had abandoned the main portion of the relief he wanted.
The effect of what Zuma now wanted was that the court should review and set aside the remedial action, because there would be a commission appointed by him with a judge picked by him. “We’ve heard detailed argument how it can never be constitutionally permissible to have a commission with a judge picked by the president which is investigating him and his family. Yet, that’s the very effect of the relief and the case now advanced by the president.
“It makes the president’s case untenable. It would leave the court, the DA as complainants and the country as a whole in an untenable position,” he said.
Budlender argued that it would leave the DA as complainant unable to get a remedy from the public protector or the president.
When Judge Mlambo remarked that the court was “left with nothing” and was in limbo because the remittal application was a necessary leg of the application, Semenya said if their application was good in law “that would be the end of the matter”. – firstname.lastname@example.org