Mkhwebane supports DA’s Zuma application

Public protector Busisiwe Mkhwebane has sided with the Democratic Alliance in opposing a bid by President Jacob Zuma to put the appointment of a commission of inquiry into state capture on ice.

The DA has asked the court to declare that President Zuma had violated the constitution by failing to appoint a commission of inquiry presided over by a judge to be appointment by chief justice Mogoeng Mogoeng into serious allegations of state capture.

The DA argued that judge Motsamai Makume should order the president to immediately comply with the remedial action ordered by former public protector Thuli Mandonsela in her November 2016 state capture report.

President Zuma, who was of the view that Madonsela had overstepped her powers, maintained he did not have to comply with the remedial action because he had filed an application to review the state capture report.

He asked the court so stay the remedial action, if necessary, pending the outcome of his review application, which will be heard in the High Court in Pretoria next month.

Counsel for the office of the public protector, advocate Hamilton Maenetje SC, echoed legal argument by the DA’s counsel, Anton Katz SC, that President Zuma had not made out a case for an interim interdict.

Maenetje said the public protector took issue with the president’s contention that no prejudice would be suffered if a stay of the remedial action was granted.

The public protector argued that public interest would be better served if a commission unearthed the truth about serious allegations of state capture.

The fact that a review application was pending did not excuse the president from complying with his statutory duty to implement the public protector’s remedial action, and did not render his review academic or vulnerable, Maenetje argued.

He said the mere right to a review did not automatically grant the right to an interim interdict, and the president had to prove exceptional circumstances to prove his right to such an interdict.

Maenetje said the president had taken the law into his own hands by ignoring the public protector’s remedial action and failing to ask for an interdict until six months after he was supposed to comply.

Both Katz and Maenetje argued that the president’s only objection seemed to be that he could not appoint the judge to preside over the commission himself, but stressed that President Zuma could not be judge and jury over himself, as he had been implicated as placing his personal interests above his presidential duties in the state capture reports.

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