President Jacob Zuma on Wednesday afternoon abandoned a proposal that the state capture investigation be referred back to the public protector, throwing into last-minute chaos a hearing in the high court in Pretoria.
Zuma has asked the court to set aside a 2016 order by then-public protector Thuli Madonsela that he must set up a commission of inquiry into allegations involving his relationship with the Gupta family.
Zuma had originally said the alternative to an inquiry was that the matter be sent back to Madonsela’s successor, Busisiwe Mkhwebane, for further investigation. But at what was to be the very end of two days of legal argument on Wednesday afternoon, his advocate Ishmael Semenya said Zuma would “no longer persist” with that part of his case.
Semenya made the concession so quietly and quickly that opposing advocates in the courtroom did not notice.
“Advocate Semenya has told us the president is no longer persisting with the remittal relief he has sought,” judge president and presiding Judge Dunstan Mlambo told the court, setting in motion furious responses.
“His abandonment makes his case untenable,” said advocate Steven Budlender for the DA.
By changing direction so dramatically “literally at the last second”, said Budlender, Zuma had left South Africa in “an intolerable position”.
Semenya did not agree anything significant had happened, leading Mlambo to give him something of a lecture.
“The issue, advocate Semenya, is the President agrees with everyone sitting here that this is a matter of national importance, it is in the public interest. Now the issue that arises is you came here and said ‘no-one can dictate to me, and the public protector can never have the power to dictate to me and do this thing’. If you win… that means the remedial action is set aside. What then?”
Semenya answered that Zuma could choose to set up exactly the commission of inquiry he had been instructed to, complete with a judge selected by the chief justice. Or, he contended, Zuma could choose to set up a commission with a judge he selected himself.
Mlambo immediately wanted to know if the court considers that a formal submission, which could be included in an order.
“I don’t have instructions on that,” said Semenya quickly. “It may very well happen.”
“We’re left with nothing, in limbo,” said Mlambo.
On Tuesday Mlambo had pointed out that Zuma had known for a year and a half that there were serious allegations against him, but had to date done nothing about that.
Before the sudden change in direction Semenya had suggested Madonsela could not have been rational when she said her office lacked the resources to investigate state capture, and so the matter must be taken further by a commission.
“Is that rational? Then the police must not do their work because they do not have adequate funding,” said Semenya. “If the problem is money, you go Parliament and you say ‘I need a special appropriation’.”
Semenya also argued that in terms of the Constitution, Zuma is required to make any decisions with legal consequence in writing. That being the case, any statement he made in Parliament – such as that he intended to appoint a commission of inquiry – could not be a decision.
The court directed that each of the responding parties could submit up to two pages of written argument on the effect of Zuma’s change in direction. Those must be submitted by Friday afternoon. Zuma can then respond, in no more than three pages, by Tuesday afternoon.