[EXPLAINER] Zuma's U-turn in state capture review bid
President Jacob Zuma has made a dramatic turnaround in his state capture review application. EWN's Barry Bateman explains the significance of the move and its implications.
PRETORIA - President Jacob Zuma went to court this week to challenge the Public Protector’s remedial action that he establishes a state capture commission of inquiry led by a judge selected by the Chief Justice.
WHAT WAS HE ASKING THE COURT TO DO?
In the president’s notice of motion, he requested the court to set aside the remedial action, but he also asked that the report be sent back to the Public Protector for further investigation in order to make findings of fact. It is this aspect of the notice of motion that he has abandoned.
WHY DID HE ABANDON IT?
At the close of day two of arguments, Judge President Dunstan Mlambo asked the Presidency’s counsel, Advocate Ishmael Semenya, about this particular request in the notice of motion, in light of submissions that Zuma had told Parliament he intends establishing a commission of inquiry.
The question related to how the president reconciles his request that the matter be referred back to the Public Protector for further investigation, with his admission that he in any event intends to establish a commission of inquiry to further investigate the content of the report.
It was here that Semenya told the court that they have abandoned that request.
DOES THIS MEAN HE HAS ABANDONED THE REVIEW APPLICATION?
No. The president still wants the remedial action set aside on grounds that no third party, such as the Public Protector, may direct him on how to exercise executive authority. He has argued that this amounts to a breach of the principle of separation of powers.
WHY IS THIS A PROBLEM?
There are two scenarios – first, if Zuma loses the review application, the remedial action stands and he’ll be required to set up a commission led by a judge selected by the Chief Justice. No problem here.
It’s the second scenario that creates the difficulty – if he wins, Zuma would be permitted to establish a commission on his terms and select a judge of his liking to preside over the matter.
When arguing why the Public Protector referred the decision related to the presiding judge to the Chief Justice, the opposition was at pains to explain the clear conflict of interest – the president is directly implicated in the report, it therefore cannot be constitutionally permissible for him to decide who presides over the further investigation of the allegations. Simply put – he can’t be judge and jury in his own case.
Zuma never advanced reasons why it is constitutionally permissible for him to select the judge because it was not what he had asked the court to order – he asked that it be sent back to the Public Protector to further investigate and make findings.
AND THE BIG DEAL?
If Zuma wins and he proceeds to appoint a judge of his liking to lead a commission of inquiry, opposition parties will be back in court to challenge the decision on the exact same reasons they have advanced in this case. Counsel argued that this would be a waste of time and it would further delay a matter which is of significant public interest.
SO WHAT NOW?
The parties have been asked to file written arguments on this matter by close on 27 October. Judgment in the application has been reserved. The judges will consider the additional arguments related to the proposed remedy of what should happen in the event that Zuma succeeds in his review application.