Zuma: Thuli can’t dictate my job
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.”