Protector may flip flop again, judge hints in ruling

It had yet to be seen if the public protector would change her stance on the constitutional powers vested in the president, as happened in her concession that only Parliament has the power to amend the Reserve Bank’s mandate, Judge Motsamai Makume said on Friday on a possible state-capture inquiry.

Makume ordered that the DA’s application for a probe to be set up be put on hold, pending the outcome of President Jacob Zuma’s review of the remedial action in the public protector’s state-capture report.

The president has been granted a postponement in implementing the remedial action. The DA and the public protector both opposed the president’s application.

Makume referred to the judgment in the matter between the Reserve Bank and the public protector in which it was indicated that the public protector initially opposed the application by the Bank challenging the remedial action in which Busisiwe Mkhwebane ordered Parliament to change the Reserve Bank’s mandate.

Mkhwebane later agreed that her remedial action was unlawful as only Parliament had the power to amend the Constitution and that she could not dictate to Parliament.

“The question to be asked is if that is what she said recently about Parliament, will her view be different when it is the president who claims the sole constitutional authority to appoint a commission of inquiry. That question will have to be answered on October 23 2017,” Makume said.

Zuma’s review application on the state-capture remedial action, given by Mkhwebane’s predecessor Thuli Madonsela, will start on October 23 in the High Court in Pretoria.

The public protector is not opposing it.

Makume made it clear that it would not be in the interests of justice to compel the president to implement the remedial action before a review was complete, as the application goes to the heart of the powers of the public protector and could possibly lead to parallel procedures being instituted.

“In my view, it will not only be a waste of resources, but may very well amount to abuse of legal process,” Makume said.

The DA had asked the court to order that the president implement the remedial action to establish a judicial commission of inquiry, in which Chief Justice Mogoeng Mogoeng will have the sole discretion on who should be appointed to head up the commission.

Zuma had taken that part of the remedial action on review, saying it was “unconstitutional, dictatorial and usurps the powers that vest in the president only”, Makume said.