DA, Public Protector agree courts should not block state capture probe

The Democratic Alliance (DA) and Public Protector Busisiwe Mkhwebane on Tuesday made common cause against President Jacob Zuma, both telling the high court in Pretoria that Zuma must not be granted a reprieve in setting up a commission of inquiry into state capture.

And the fact that Zuma is implicated in state capture himself means he should not get a say in how state capture is now further investigated, the opposition party and Mkhwebane agreed.

Along the way, the DA told judge Motsamai Makume, the court has no choice but to declare that Zuma has failed his constitutional duty again, because he is “ignoring his constitutional obligation purely because he has a different view,” on it, DA advocate Anton Katz said.

Zuma, meanwhile, on Tuesday offered a new and seemingly contradictory explanation as to why he originally did not seek a stay of his obligation to set up an inquiry. Instead of doing so, Zuma launched a full review of the entire state capture report compiled by Mkhwebane’s predecessor Thuli Madonsela.

Because he had only been given 30 days to establish such a commission, a deadline that expired in early December 2016, he had not had the time to go to court for an interdict application, Zuma had initially argued in papers on the matter.

On Tuesday, however, Zuma’s advocate Ishmael Semenya told the court that Zuma could not have applied for such a stay because he would be interdicting himself, a legal absurdity. Zuma had been ordered to take action, in setting up a commission, Semenya said, and could not seek an order to prevent himself from doing so.

Zuma has since sought just such a stay, an order to prevent him from setting up an inquiry, as part of a “conditional counter-application” also heard on Tuesday, interwoven with the DA’s main application that Zuma be ordered to establish an inquiry. But it was not clear to either Makume or Katz who it was that that Zuma now sought to interdict. Makuma noted that Semenya’s team said it was not Zuma they sought to interdict. Katz in response literally throwing his hands into the air in frustration.

“I know!” Katz told Makume. “It’s bizarre.”

There was also no reason to make the declaration that Zuma had failed in his constitutional duty as the DA insisted, Semenya said, because it served no legal purpose. “Unless you want to go for another one; you’re telling the president you beat him once, now you tell him you beat him twice,” he said, referring to the Constitutional Court’s declaration that Zuma had failed in his duty in handling the Nkandla debacle.

But the Nkandla judgement by the Constitutional Court was exactly what had established the requirement for courts to call out a President, Katz later countered, “as many times as the president fails to comply with the law”.


Makume reserved judgment, but promised to “expedite” it ahead of the hearing, due in October, of Zuma’s review application on the public protector’s state capture report.

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Phillip De Wet
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