It is not for the Public Protector to straddle into the terrain of the executive‚ President Jacob Zuma said on Friday in his application to review and set aside the State of Capture report.
The report‚ concerning an investigation into complaints regarding allegations of an improper relationship between Zuma‚ other state officials and the Gupta family‚ was finalised by Madonsela last month and she meant to release it on her last day in office on October 14.
However‚ the report was released on November 2 after Zuma withdrew his court application to prevent the release of the report.
The report recommended that‚ because Madonsela did not have enough funds to finalise the investigation‚ Zuma must appoint a commission of inquiry to complete the investigation.
Zuma indicated on November 25 that he intended to review the report.
In his application filed on Friday in the high court in Pretoria‚ Zuma wants the court to review and set aside the remedial action by the Public Protector.
The remedial action instructs Zuma that‚ within 30 days of the release of the report‚ he must appoint a commission of inquiry‚ to be headed by a judge solely selected by Chief Justice Mogoeng Mogoeng.
Zuma also asked for an order sending the State of Capture report to the Office of the Public Protector for further investigation and a further report.
In his founding affidavit‚ Zuma said the remedial action was unlawful as it straddles the separation of powers doctrine.
“The Public Protector is directing remedial action in areas in which the Constitution has left to the Executive‚” Zuma said.
Zuma said remedial action insofar as it did not adhere to the Constitution was invalid.
“Conduct either by either myself or the Public Protector which does not accord with our constitutional obligations and is not within the confines of the constitution is impermissible as it violates the Constitution.”
Zuma said Section 84(2)(f) of the Constitution provides that the president of the country is responsible for “appointing commission of inquiry”.
Zuma said the Public Protector did not have the power to direct the Chief Justice to select a judge to head the judicial inquiry.
“Again‚ this power can only be exercised by a President.”
He said powers under section 84(2)(f) must be exercised without the concurrence of the Cabinet.
Zuma said he had been advised that where the Public Protector instructed that a president must exercise executive power in a particular manner and time frame‚ this would be unconstitutional.
Zuma said the Commission Act of 1947 made it plain that the commission of inquiry was at the instance of the president to enquire into matters which he as president would want an investigation into and advice on.
“The Commission Act does not conceive of a commission of inquiry into matters which other people or entities deem to be matters of public concern and therefore requiring a commission of inquiry to be instituted.”
He said if it were possible or legally competent for any person or entity who deemed any particular of public interest to require any probing and to demand that such commissions be appointed by the president‚ then there possibly would be no end to such commissions.
Zuma said the decision to “outsource” the remedial action was irrational since the only conceivable deduction to be made was that Madonsela’s term of office was coming to an end and she was unwilling for the office to continue with the investigation outside her control.