HIV activist Mark Heywood tells Bhekisisa editor Mia Malan the president and health minister are direct opposites.
Starting on Tuesday, President Jacob Zuma is due to argue before the high court in Pretoria that he should not be forced to establish a commission of inquiry into state capture on the terms set out by then public protector Thuli Madonsela in 2016.
Much to the delight of opposition parties, he will be arguing in part with himself — or should be, they say.
A year ago Madonsela directed Zuma to establish a commission of inquiry into state capture, headed a judge named by the chief justice, in her report called State of Capture. This inquiry, she said, should take further her preliminary work on the strange way state entities acted when it came to the Gupta family, to the evident profit of not only the Gupta but also the Zuma family.
But only the President has the power to set up an inquiry, and he should do so only when he thinks it proper, Zuma’s team headed by advocate Ishmael Semenya has said in heads of argument.
“The President has not determined that issues raised in [the State of Capture report] are matter of public concern,” Zuma’s heads note, though hastens to add this “may very well be” the case.
“This is plainly untrue,” the Democratic Alliance legal team under advocate Steven Budlender says bluntly, pointing to a very different approach Zuma took in Parliament. There, in June, Zuma said he had already decided to establish a state capture commission.
“We are moving as fast as possible to establish the commission,” Zuma told Parliament on being questioned about leaked emails showing cabinet ministers apparently bending over backwards to benefit the Gupta family.
Instead of trying to review Madonsela’s report, Zuma should seek to review and set aside his own decision on the inquiry, the EFF, UDM, and Cope say in their joint written arguments, due to be presented by advocates Tembeka Ngcukaitobi and Dali Mpofu.
Current public protector Busisiwe Mkhwebane takes a somewhat different approach to that of the political parties in her own opposition to Zuma’s legal challenge.
“We accept that it is almost always constitutionally impermissible for the Public Protector to require the President to appoint a commission of inquiry, or to determine the mode of operation of a judicial commission of inquiry,” writes her advocate, Hamilton Maenetje. However, “there may nonetheless be circumstances in which the President is legally required to appoint a commission,” he says.
If the high court considers the extraordinary nature of the claims — involving Zuma — of state capture, then it can find the public protector is allowed to order him to establish an inquiry, Mkhwebane’s team argues.
But if it doesn’t, she wants the court to order Zuma to ensure her office gets the R31-million extra she believes will be necessary to properly investigate state capture.
Others are due to argue that the state capture investigation should absolutely not be sent back to Mkhwebane for further investigation. Not only does she lack the money, but she has a backlog of more ordinary cases that should get attention, the Council for the Advancement of the South African Constitution (Casac) says in its papers. In addition, the protector is a sort of investigative ombud, who settles complaints between an aggrieved party and a state entity that did wrong.
“This is no typical complaint by a citizen against government malfeasance,” writes Casac advocate Michelle le Roux in argument she is due to present. “State capture is wide, pervasive collusion between high level state officials and private interest to enrich themselves to the detriment of all South Africans.”
The DA also argue that a commission of inquiry is fundamentally better suited to dealing with state capture because of its public nature. When the public protector investigates it is behind closed doors and by way of her questions; when an inquiry sits it allows complainants to interrogate witnesses — and evidence plays out in public.
Because the public, and South Africa’s perception of state capture, should not be ignored, the EFF agrees.
“Quite ironically, should the commission ultimately exonerate him, it is the President himself who will be most prejudiced by a sceptical public’s unwillingness to accept those findings,” says the EFF about an inquiry set up on the terms Zuma wants.
“If anything, it is counter-intuitive for the President to seek a more central role in establishing a process that could clear his name of all wrongdoing, in circumstances where the greater the role he plays the less likely it is that such findings will enjoy the public confidence they should.”
Their papers suggest that the EFF, UDM, and Cope, will also argue heavily that Zuma should pay the cost of the case out of his own pocket.
“The President pursues this application, not for any other reason other than to stay his, his family’s, and his associates’ from being held accountable for the various acts of unlawfulness of which they stand accused. It is self-evidently that the President pursues this in order to accrue a personal benefit,” write Ngcukaitobi and Mpofu in their papers.
“The President’s conduct in pursuing this application, even though there is no factual or legal basis to do so, shows a wanton disregard for how he, as an occupant of an important public office, should conduct himself as the incumbent.”
The matter is set down for argument Tuesday, Wednesday, and Thursday.