JZ can’t appoint judge, insists EFF

CONFLICT: PRESIDENT IS SUBJECT OF INVESTIGATION

Zuma files application to set aside remedial action.

It was inconceivable that President Jacob Zuma should appoint the judge to preside over a commission of inquiry into state capture because he himself was the subject of the investigation, the Economic Freedom Fighters (EFF) have argued in the High Court.

The president has applied to the High Court in Pretoria to set aside the remedial action directed by former public protector Thuli Madonsela in her state of capture report.

He wants the court to refer the investigation back to Public Protector Busisiwe Mkhwebane, but Mkhwebane said her office did not have the finances to continue the investigation and a commission was the best attempt at curing the root cause of the complaint.

Madonsela directed Zuma to appoint a judicial commission of inquiry to investigate allegations of state capture by the Gupta family, but directed that Chief Justice Mogoeng Mogoeng must appoint the presiding judge.

Tembeka Ngcukaitobi, for the EFF, argued that it was inconceivable that Zuma, who was the subject of the investigation, could make a rational decision about the presiding judge.

He said the facts of the case illustrated a clear conflict of interest between the president’s private and official interests. His power could not be exercised where it was clear that he would be the judge and jury in his own case.

Ngcukaitobi echoed legal argument by the public protector that the facts of the case were extraordinary, which rendered the remedial action permissible under the constitution.

He said the president had publicly announced in parliament that he had decided to appoint the commission and the court should hold him to that undertaking.

Counsel for the president, Ishmael Semenya, argued that the remedial action was a legally impermissible delegation of the public protector’s investigative powers to a commission.

He said the public protector only had the power to take remedial action where she had completed her investigation and found impropriety.

The application continues. –