Former public protector Thuli Madonsela had every reason to shed a tear after the High Court in Pretoria dismissed President Jacob Zuma’s bid to thwart her explosive report into allegations of state capture on Wednesday. This is why:
• The full bench held that Madonsela did exactly what was expected of her in terms of her mandate‚ ruling that she made prima facie findings on the basis of her probe and took remedial action. The bench therefore dismissed Zuma’s assertion that Madonsela had acted beyond her powers and had attempted to delegate her mandate to a commission of inquiry.
• Regarding Zuma’s argument that the remedial action was inconsistent with the Ethics Act due to a commission of inquiry being unable to investigate a breach of the Act‚ the court held that the public protector’s power to take remedial action stemmed from the constitution and not the Ethics Act.
• On the remedial action that Zuma appoint a judicial commission of inquiry‚ the court held that there was compelling prima facie evidence that the relationship between Zuma and the Gupta family had evolved into state capture and that the matter was of great public concern. The court held that commissions were by their nature transparent and open to the public and possessed a number of important advantages. The court also took into consideration the public protector’s budgetary constraints and the scale of the investigation to be done‚ finding the judicial commission of inquiry suitable to carry out the investigation.
• With regard to the directive that Chief Justice Mogoeng Mogoeng select the judge to preside over the commission of inquiry‚ the court held that Zuma has a clear interest in the outcome of the commission and that there is no reason why the recusal principle should not apply to Zuma. The court found that Madonsela foresaw that the credibility of the process may be compromised and that she was aware of the public perception in the matter and it was not only appropriate but necessary that someone other than Zuma select the head of the commission. The court also held that there was no constitutional prohibition on the president seeking and adopting the advice of the chief justice.
• With regard to Madonsela’s directive that Zuma report to parliament within 14 days of releasing the report‚ the court held that it was a wise and necessary precaution to ensure that the recommendations of the commission were implemented.
• The court further held that Madonsela’s concerns regarding leaving the investigation to her successor‚ Busisiwe Mkhwebane‚ was justified and rational as the matter had to be finalised without delay.
After the landmark judgment‚ Madonsela said the decision that Zuma was reckless in bringing the application resonated with her own view on how the president had dealt with the matter.
“If somebody says your house is burning‚ honestly‚ you’ve got to sort that out. Find out if it’s true. The president has a duty to investigate this matter‚” she said.
By: Sipho Mabena – TimesLIVE
Source: TMG Digital.