“Any reasonable President” would have acted on allegations of state capture by now, an advocate for public protector Busisiwe Mkhwebane told the high court in Pretoria on Tuesday – closely mirroring the questions of at least one judge.
It has now been around a year and a half since President Jacob Zuma had first learned he was implicated in state capture allegations, presiding Judge Dunstan Mlambo said earlier in the morning.
“He does nothing. Nothing,” Mlambo told Zuma’s advocate Ishmael Semenya. “He has done nothing other than tell Parliament that ‘we have taken a decision to establish a commission’. Is that conduct one can expect from a reasonable President in the context of a constitutional democracy?”
Semenya argued that Zuma’s hands had been tied because then public protector Thuli Madonsela had overreached herself by ordering him to establish a commission of inquiry into state capture.
“He was legally incapable of doing anything until this review is heard,” Semenya said.
Zuma is asking the court to review and set aside Madonsela’s order for the establishment of a judicial inquiry on a number of grounds, including that it had been unconstitutional and irrational.
But in a brief session before lunch on Tuesday, counsel for Madonsela’s successor said Zuma not only could have acted on state capture by now, but had had a duty to do so. Yet other than proposing the whole matter should go back to Mkhwebane, Zuma “has not proposed any alternative,” said advocate Vincent Maleka.
Maleka dismissed as fundamentally legally flawed Semenya’s argument that Madonsela did not have the power to order remedial action on state capture without first finding, as a fact, that state capture had occurred.
Earlier in the day, Semenya had made such an argument, amid a series of eye-popping statements that further extended written arguments opposing political parties had already labelled strange and bizarre.
A public protector, Semenya told the court, could only act once she had found wrongdoing.
“Until such time as the public protector has found conduct that is improper … she cannot even make a report,” Semenya said.
As Madonsela found only suspicion of wrongdoing that should be further investigated, her report is invalid Semenya said. Hence, her order that a judicial inquiry must probe state capture is also invalid.
During a seven-year term, Madonsela issued reports that not only failed to find wrongdoing, but exonerated those accused of it. She also regularly asked for further investigation into at least some allegations in a wide range of cases, Semenya continued.
Maleka is to continue his arguments on Tuesday afternoon, to be followed by legal teams for the EFF, Cope and the UDM, and the DA.
The matter has been set down until Thursday.