Court rejects attempt to have State of Capture report set aside
Former public protector Thuli Madonsela burst into tears of joy as the high court in Pretoria trashed President Jacob Zuma’s bid to set aside her damning State of Capture report and ordered him to personally pay the costs for his “reckless” move.
Madonsela sat in the front row of the public gallery yesterday‚ occasionally nodding and smiling as Gauteng JudgePresident Dunstan Mlambo demolished Zuma’s grounds for the review.
Zuma was ordered to set up a judicial commission of inquiry into state capture headed by a judge selected by Chief Justice Mogoeng Mogoeng.
For the second time in less than a week, the court found that Zuma could not effectively exercise his powers as head of state due to personal conflict of interest.
It said he was so conflicted that he was unable to fulfil his constitutional duties.
It also said Madonsela’s remedial action for the commission of inquiry was binding.
Madonsela said she was happy that the judiciary had dismissed the review application‚ saying she and her team had done their best.
“But we knew that judges are the ultimate guardians of the constitution and could reach a different decision, and I am quite happy that they saw the matter the way we did.”
The cost order against Zuma‚ which could easily run into millions‚ would make government officials reflect and pause after a decision had been made by the public protector or the courts, she said.
People increasingly just took a matter on review within minutes of a decision being made.
“I would think this kind of decision by the court is trying to say to people ‘please pause‚ please think about the implications for good governance and implications for the use of taxpayers’ money’‚” she said.
While Zuma has not yet indicated whether he will appeal, the ANC welcomed the ruling, saying it was in line with a decision taken by the national expeople ecutive committee that an inquiry be established to investigate the state-capture allegations without delay.
ANC spokesman Zizi Kodwa said the party trusted that he “will act in accordance with this judgment without delay in the interest of our country”.
Madonsela said Zuma had the right to appeal.
But after the proceedings, she said further delays could lead to evidence being lost.
She said if Zuma appealed, he had to “think once more of what it meant to this country to be sitting with these allegations, a dysfunctional cabinet, a dysfunctional government and dysfunctional ANC”.
Former finance minister Pravin Gordhan, who appeared to have lost his job because he took on the fight against state capture, said all progressive in and outside the ANC had been vindicated.
“It is remarkable that we still have individuals in key positions who do everything possible to obfuscate and cover up corruption and state capture, rather than face the reality and truly work in the interests of the country as a whole,” he told Business Day.
The South African Communist Party called on Zuma to abide by the order and establish the commission of inquiry.
Any further waste of time would entrench the public perception that Zuma was either delaying the inquiry or trying to prevent it because he was implicated.
Cosatu said it was happy that the courts had “helped clarify” the matter for Zuma.
“Hopefully, he now better understands the limits of his own powers and the principle of separation of power in general,” Cosatu spokesman Sizwe Pamla said.
The president, who has had a very litigious two terms in office, was also slapped with two unprecedented cost orders yesterday that instructed him to pay out of his own pocket for the interdict application to stop the release of the State of Capture report, as well as the review application.
Zuma has 30 days from the court order to institute the inquiry.
The commission has been given 180 days to complete its work.
Delivering the ruling, Mlambo also ordered that the president take all steps and sign off on all documents necessary to give effect to the remedial action.
He ordered the Treasury to make available the financial resources needed for the commission of inquiry.
Mlambo said the president’s powers were not untrammelled, as they were subject to the constitution. The court held that because Zuma had a direct personal interest in the state capture investigation there was no reason why the principle of recusal should not apply to the president.
“The principle of recusal applies here because the president has an official duty to select a judge to lead the commission, but he is conflicted as he himself has been personally implicated.
“Whether directly or indirectly, through his family and associates in allegations of state capture.”
Zuma’s son, Duduzane, and his friends the Guptas are at the heart of allegations of state capture.
The court made it clear that the public protector’s remedial action was contextspecific, and just as she had the power to instruct the president to establish the judicial commission of inquiry, she also had the power to give directions as to how it should be implemented.
On top of that, the court also found that Madonsela’s remedial action was broad enough to also encompass the revelations in the tranche of leaked Gupta e-mails, which came to light after the release of the State of Capture report.
Mlambo said the public protector’s report had uncovered worrying levels of malfeasance and corruption which were in utter disregard of good corporate governance principles, some bordering on fraud in government departments and state-owned enterprises, which involved large amounts of public money.
“In our view, the president had no justifiable basis to simply ignore the impact of this corruption on the public.
“His conduct falls short of the expectation on him as head of state to support institutions of democracy such as the public protector,” the court said.
The judicial commission of inquiry presented Zuma with an opportunity to confront and deal with the problem, the judges said.
This decision follows a judgment handed down last week by the same court, which found that Zuma was too conflicted to appoint a national director of public prosecutions.
The DA and the EFF were respondents in the case and welcomed the decision.
DA leader Mmusi Maimane said his party would now lay a complaint of perjury against Zuma today, after the court decided not to rule whether a “typo” in the president’s papers – when he tried to stop Madonsela from releasing the report – indeed amounted to perjury.
He said Zuma had used every trick to obfuscate the state capture matter and that his party would oppose any bid to appeal against the judgment.
The EFF called on Zuma to immediately comply with the judgment and not waste any more time and resources in challenging the outcome.
COPE leader Mosioua Lekota said Zuma had been acting as a law unto himself and the blame should be placed squarely before the entire leadership of the ANC. – TimesLIVE, Business Day