Countdown: The Gupta brothers will be called as witnesses in the parliamentary inquiry into Eskom, which has been widened to include state capture as it affects the Department of Public Enterprises and state-owned enterprises. Picture: SUPPLIED
Countdown: The Gupta brothers will be called as witnesses in the parliamentary inquiry into Eskom, which has been widened to include state capture as it affects the Department of Public Enterprises and state-owned enterprises. Picture: SUPPLIED

Less than a week after President Jacob Zuma was stripped of one of his crucial powers by the High Court in Pretoria, the same court will have to decide on his executive powers again.

Last Friday, a full bench of the court ordered that Zuma cannot appoint, suspend or remove the national director of public prosecutions (NDPP) for the remainder of his term in office.

In a judgment delivered by Gauteng Judge President Dunstan Mlambo, Zuma was found to have a conflict of interest as he faced possible serious charges of fraud, corruption, racketeering and money laundering.

The bench ordered that the country’s deputy president, who is Cyril Ramaphosa, should appoint the NDPP.

On Wednesday, the court will deliver judgment on whether Zuma has to implement former public protector Thuli Madonsela’s remedial action, as laid down in her State of Capture report, or if it will be set aside.

In the report released in November 2016, Madonsela had recommended that the president institute a judicial commission of inquiry into the allegations of state capture contained in her report.

She said her office did not have the funds to complete the investigation.

Madonsela said Zuma was conflicted as his son, Duduzane, and his friends, the Guptas, were at the heart of the state capture allegations.

It was because of this that she recommended that Chief Justice Mogoeng Mogoeng should decide which judge should head up the judicial inquiry into the allegations that had tainted Zuma’s presidency.

The president’s legal team put up a fight in court, saying the remedial action breached the separation of powers doctrine, and that the appointment of a commission of inquiry was an executive power that lay solely in the hands of the president.

Some of the respondents, however, argued that the power to appoint a judge was not taken away from the president, but merely the selection of the judge in question.

The court will also decide if a cost order should be handed down against the president in his personal capacity, following an interdict application he had brought to stop the release of the report in 2016.

The respondents included opposition parties the DA, the EFF, Congress of the People (COPE), the United Democratic Movement (UDM) as well as the public protector, former ANC MP Vytjie Mentor and the Council for the Advancement of the South African Constitution.

The EFF, UDM and COPE have also asked in a draft order submitted to the court that it declare that the president’s failure to comply with the remedial action is inconsistent with the Constitution.

James Selfe, chairman of the DA’s federal executive, said if the court did not review and set aside the remedial action as Zuma had asked it to do, he would have to implement the remedial action without delay.

The DA had brought an application earlier in 2017 to try to force the president to implement the remedial action.

The DA had asked the court to order that the president implement the action immediately, but judgment was stayed pending the outcome of the review.

The respondents had to file additional argument in the review application after an 11th-hour about-turn by the president’s counsel, Ishmael Semenya, resulted in a crucial part of the relief they had sought being dropped.

Additional argument

Zuma abandoned his plan that, after the remedial action had been reviewed and set aside, it had to be referred back to the current public protector, Busisiwe Mkhwebane, for further investigation.

Additional written argument was needed, as the president effectively left the court without a legal route forward if it were to review and set aside the remedial action. The respondents’ arguments were also based on the relief he had initially sought.

Zuma’s counsel then proposed a route forward in additional written argument, in which they proposed a draft order in which the president said he would appoint a commission of inquiry within 30 days of the order granted.

Casac’s Lawson Naidoo said the matters dealt with over the past week reaffirmed that the president had a conflict of interest "because of the way he has manipulated state institutions to the benefit of himself".

Naidoo said the same principle would apply in the review application as in the case about former NDPP Mxolisi Nxasana’s settlement, in which the president was stripped of the power to appoint the NDPP, in terms of the conflict of interest between his personal interests and his public responsibilities.

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