Former president Jacob Zuma says he challenged then public protector Thuli Madonsela’s report recommending an investigation into allegations that those close to him sought to capture the state not to protect himself but to safeguard the integrity of that very inquiry.
In court documents that were filed last week, Zuma, who was found by the Constitutional Court in 2016 to have violated his duty to uphold and defend the constitution, said he was anxious that establishing an inquiry on Madonsela’s terms could have exposed him to acting unconstitutionally.
"Such an important commission would have been tarnished with legal and constitutional uncertainties," he said.
"It was therefore important for me to be sure that the public protector’s directives could pass constitutional muster — for the integrity of the commission of inquiry depended on the constitutional foundations."
The Pretoria high court found in 2017 that Zuma acted recklessly and unreasonably when he challenged Madonsela’s order that chief justice Mogoeng Mogoeng, and not himself, must choose a judge to lead the inquiry. The court endorsed Madonsela’s reasoning that Zuma should not make that decision because he, his son Duduzane and the Gupta family, who were his friends, had been implicated.
Mogoeng appointed deputy chief justice Raymond Zondo to investigate claims of state capture during Zuma’s presidency, centred mostly on allegations that the Guptas were allowed to divert state resources to their business interests and grew so powerful they even appointed ministers and key state officials.
The family was also embroiled in allegations of looting that crippled Eskom, which reintroduced load-shedding in December amid a financial and operational crisis.
The Zondo commission will continue in 2019.
For the first time in SA’s history, the high court ordered the then president to pay the estimated R6m-R10m cost of that litigation out of his own pocket in the strongest possible display of judicial displeasure. It later refused his attempt to appeal against that ruling.
Just three days before the high court cut off the continued funding by the state of his corruption defence costs, Zuma turned to the Supreme Court of Appeal in the hope that it would agree to hear that state capture costs appeal.
In papers before that court, he denies any suggestion that he sought to challenge Madonsela’s report out of self-interest and that the legal action was aimed at frustrating the investigation.
"These findings are without any basis whatsoever," Zuma says in the papers. The high court failed "to appreciate the gravity of the constitutional issues engaged in the findings of the public protector, which the president sought to review
and set aside," according to Zuma’s papers.
Not unreasonable
It could "never be reckless and unreasonable for the president to seek to establish whether the chief justice could participate in the process of establishing a commission of inquiry in terms of section 91 of the constitution".
The former president also appears to take a swipe at President Cyril Ramaphosa for his decision not to appeal the personal costs order granted against him.
"The principle that I should be held personally liable for costs orders for executive decisions that I took while I was president of the Republic of SA should have concerned President Ramaphosa because it has very concerning constitutional implications for the exercise of constitutional duties by the head of the national executive," according to Zuma’s papers.
The Appeal Court has yet to decide whether it will even hear Zuma’s case.
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