Zuma: Thuli can’t dic­tate my job

CityPress - - News - S’THEMBILE CELE sthem­bile.cele@city­press.co.za

I will just be rub­ber­stamp­ing the de­sires of the Pub­lic Pro­tec­tor

Pres­i­dent Jacob Zuma has claimed that Thuli Madon­sela is try­ing to dic­tate his job to him by call­ing for a com­mis­sion of in­quiry that is un­law­ful. He says al­low­ing the in­quiry would be “rub­ber-stamp­ing her de­sires”.

This was re­vealed in an af­fi­davit filed by Zuma on Fri­day evening in ap­pli­ca­tion to have the State of Cap­ture re­port re­viewed, and for para­graph 8.4 of the re­port to be set aside.

The para­graph re­lates to the ap­point­ment of a com­mis­sion of in­quiry – headed by a judge selected by the chief jus­tice – within 30 days.

“I, as the head of state, have not in­de­pen­dently made a de­ci­sion to hold a com­mis­sion of in­quiry. To do so would be at the dic­tate of an­other func­tionary.

“There is no mat­ter of pub­lic in­ter­est that I would re­quire ad­vice on by the ap­point­ment of a com­mis­sion of in­quiry. I will just be rub­ber­stamp­ing the de­sires of the Pub­lic Pro­tec­tor,” the af­fi­davit reads.

The ap­pli­ca­tion came at the eleventh hour on the last of the 30 days Zuma had. The com­mis­sion can­not be es­tab­lished while the re­port is the sub­ject of court pro­ceed­ings.

“The na­ture of the re­me­dial ac­tion strad­dles the sep­a­ra­tion of pow­ers doc­trine, which is the rule of law,” the af­fi­davit states.

Zuma states in the first part of the two-part af­fi­davit that he did not have enough time to fur­nish the Pub­lic Pro­tec­tor with a re­sponse.

He says the for­mer pub­lic pro­tec­tor only no­ti­fied him in Septem­ber that she wanted to brief him on her progress as well as ask ques­tions re­lat­ing to his son Duduzane Zuma and his deal­ings with the Gupta fam­ily.

A month later, the re­port was fi­nalised, de­spite Zuma hav­ing asked for ad­di­tional time to re­spond to what he says was lengthy and very de­tailed ques­tion­ing.

In the sec­ond part of the ap­pli­ca­tion he states that the re­me­dial ac­tion call­ing for a com­mis­sion of in­quiry is in­valid as it does not ad­here to the Con­sti­tu­tion.

Sec­tion 84 of the Con­sti­tu­tion states that the ap­point­ment of com­mis­sions of in­quiry is the re­spon­si­bil­ity of the pres­i­dent.

While the Pub­lic Pro­tec­tor Act makes pro­vi­sion for the Pub­lic Pro­tec­tor to del­e­gate in­ves­ti­ga­tions to some­one else, Zuma ar­gues that the com­mis­sion of in­quiry – which would re­port to the pres­i­dent and not the Pub­lic Pro­tec­tor as pro­vided for in the act – is not a valid del­e­ga­tion.

“A re­me­dial ac­tion which has as its ef­fect that the in­ves­ti­ga­tion of a com­plaint laid with the Pub­lic Pro­tec­tor must in­stead be in­ves­ti­gated by a ju­di­cial com­mis­sion of in­quiry would clearly con­sti­tute an im­proper del­e­ga­tion con­tem­plated in sec­tion 7(3)(b)(i) of the Pub­lic Pro­tec­tor Act.

Zuma also says that for the chief jus­tice to select the head of the in­quiry is not within the am­bit of the Con­sti­tu­tion.

In a re­cent in­ter­view with City Press, Madon­sela said that she was con­fi­dent that she had fol­lowed the let­ter of the law in de­ter­min­ing the re­me­dial ac­tion.

“The in­ter­pre­ta­tion that I used is in­formed by an un­der­stand­ing that there is a dif­fer­ence be­tween ‘ap­point’ and ‘select’. And I was very care­ful there, [in] that I left the power of the pres­i­dent to ap­point a com­mis­sion and I con­trolled the se­lec­tion part.

“You will know that the Con­sti­tu­tion says noth­ing about how the se­lec­tion process should be done, mean­ing it is open to be done in any way what­so­ever,” she said.

“The in­ter­pre­ta­tion that I have used is con­sis­tent with the ap­point­ment of the Pub­lic Pro­tec­tor. The Pub­lic Pro­tec­tor is selected by Par­lia­ment, but ap­pointed by the pres­i­dent. It is there­fore not true that if the se­lec­tion is done by some­one else, then your power to ap­point has been taken away,” said Madon­sela in re­sponse to Zuma.

Zuma also ques­tions the mo­ti­va­tion for Madon­sela choos­ing to “out­source” the in­ves­ti­ga­tion as op­posed to re­fer­ring it back to the Of­fice of the Pub­lic Pro­tec­tor.

Last week the Eco­nomic Free­dom Fight­ers is­sued a state­ment say­ing that they would go to court to chal­lenge any bid by Zuma to have the re­port re­viewed, deem­ing this a de­lay­ing tac­tic.

They are listed as re­spon­dents, along with the DA, Cope, UDM, the Pub­lic Pro­tec­tor (and her of­fice), Vytie Men­tor and the Coun­cil for the Ad­vance­ment of the South African Con­sti­tu­tion.

The af­fi­davit ends with Zuma stat­ing that the es­tab­lish­ment of the com­mis­sion would make him a judge in his own court.

“I would in­deed be act­ing as judge and jury in my own court since the com­mis­sion of in­quiry would be re­port­ing to me for my ac­tion or in­ac­tion on its rec­om­men­da­tion.”

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