Former president Jacob Zuma’s lawyers insisted on Friday that their client was not acting recklessly when he sought to challenge the constitutionality of then public protector Thuli Madonsela’s “state of capture” report, claiming he was worried about its legality.
Zuma’s challenge to Madonsela’s finding that Chief Justice Mogoeng Mogoeng picks the judge who will chair the commission of inquiry into state capture delayed the start of commission by more than a year.
Typically, under the provisions of the constitution, only the president is responsible for establishing commissions of inquiry and appointing the judges to head them.
Madonsela’s remedial action was motivated by Zuma, his son Duduzane, and his friends the Gupta family all being implicated in alleged state-capture corruption, and this amounted to an “insurmountable” conflict of interest.
Zuma’s advocates, Muzi Sikhakhane and Thabani Masuku, were repeatedly questioned by five appeal court judges over their arguments that it was “not fair” for the Pretoria High Court to order that the former president personally pay the estimated R10m legal costs of his failed attempts to interdict and review Madonsela’s report.
The court reserved judgment on Zuma’s challenge to that costs order.
Zuma’s advocates said the former president was simply attempting to “obtain clarity” about the legality of Madonsela’s order that the power to appoint the judge who would head the inquiry must be taken out of his hands and given to Mogoeng.
Sikhakhane argued that it was justified for Zuma to be concerned about whether a billion rand or more would be spent on something that would later be challenged. He stressed that Zuma had never been opposed to the establishment on the inquiry.
Judge David Unterhalter responded by questioning why, if Zuma understood the urgent need for a commission to investigate the serious evidence of alleged state capture, he had not simply allowed Mogoeng to appoint a judge to hear the inquiry then applied for clarification in a separate case that would not delay the inquiry from beginning its work.
Sikhakhane responded by stating that Zuma had a “legitimate concern about starting something that could be open to challenges”, particularly given that the long-running and expensive inquiry he had initiated into the arms deal corruption had later been found to be invalid by the Pretoria High Court.
Zuma didn’t want to spend “public finances” on an inquiry that could later be found to be unlawful.
Advocate Tembeka Ngcukaitobi, for the EFF, maintains that Zuma’s challenge against the report was driven by self-interest. Zuma, he pointed out, had been “put at the centre of malfeasance, allegations of corruption and allegations of promoting the interests of himself and his friends and his son” in Madonsela’s investigation. He agreed with the high court that Zuma was “an accused person” in the Madonsela report and had a clear conflict of interest.
The Pretoria High Court had dismissed Zuma’s review as a “non-starter”.
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