Protector backs Zuma on Guptas
Any judge can perform any duty, says Busi
PUBLIC protector Busisiwe Mkhwebane is backing President Jacob Zuma’s argument that Thuli Madonsela’s recommendation that the chief justice should appoint a judge to head the inquiry into state capture is flawed.
In an interview with the Sunday Times this week, Mkhwebane said she believed that any judge, even one appointed by Zuma, would be capable of investigating the Gupta family’s alleged influence on Zuma’s cabinet, because the judiciary was independent.
Her comments came after she told journalists that although she had filed notice to oppose Zuma’s application for a judicial review of Madonsela’s report, she had sought a legal opinion on whether to proceed with the action.
This is seen as a clear indication that Mkhwebane is likely to withdraw her notice to oppose Zuma.
“[We are checking] whether we dictate to the president for someone else to appoint or perform the president’s functions [to appoint the judge],” she told the Sunday Times on Friday.
“The judiciary is independent. Therefore any judge can perform any duty without fear or favour.”
That was the basis of Zuma’s application to the High Court in Pretoria to take the controversial state capture report on review.
Mkhwebane has now asked law firm Adams & Adams for a legal opinion on whether the recommendation is constitutional as she says she believes the president should have the powers to appoint the judge.
However, Madonsela specifically said that it should be Chief Justice Mogoeng Mogoeng who provides Zuma with the name of a judge, because that person would also have to investigate the president as part of the commission of inquiry.
Madonsela based her recommendation on a statement Zuma made to parliament when he defended himself for not implementing her recommendations in the Nkandla case.
Zuma said in October 2015: “I could not have carried out the evaluation myself lest I be accused of being judge and jury in my own case.”
Madonsela’s report revealed how the Guptas offered cabinet posts to ANC leaders and tried to instruct government officials to award lucrative government business to their companies.
The report also revealed their relationship with influential people in government and stateowned companies.
Mkhwebane said that if the legal opinion indicated that the president could not ask the chief justice to appoint the judge she would have to withdraw the motion to oppose Zuma’s attempt to challenge her predecessor’s report.
Zuma also wants the court to rule that the public protector continue the investigation into state capture and come up with a thorough report. This would have to happen if Mkhwebane withdrew her motion to oppose Zuma’s court bid.
But Mkhwebane said she would prefer a judicial commission of inquiry to take over the investigation because her office was struggling with capacity.
The new public protector, who has completed 100 days in office, said she planned to change tack when her office engaged with Zuma and other members of the executive, preferring to be more accommodating and less confrontational. She emphasised that she was not a judge and could not make accusations.
“Why must I be in a confrontational mood? I will get what I want. If there is any maladministration, it will come out . . . Give a person enough time so that you don’t create a situation where the person takes you to court.”
This appeared to be a jibe at Madonsela, who was taken to court by Zuma, saying he had not been given enough time to respond to questions in the state capture investigation. He withdrew the application at the eleventh hour.
Mkhwebane’s comment came on the day that ANC Gauteng chairman Paul Mashatile
Why must I be in a confrontational mood? I will get what I want
bemoaned the party’s ability to deal with the contents of the state capture report.
“Our failure, or is it reluctance to deal swiftly with the allegations/observations contained in the State of Capture report, and ignoring comrades who were willing to come up with evidence to support this assertion, is not helping our cause to reclaim public confidence,” Mashatile said in a speech prepared for delivery behind closed doors at the party’s provincial executive committee meeting on Friday. See Barney Mthombothi on Page 17