The Presidency has launched its application in the High Court in Pretoria to review the remedial action of the Public Protector’s ‘State of Capture’ report.
Jacob Zuma’s legal team has argued that the Constitution empowers only the president to establish a commission of inquiry.
The Presidency has launched its application in the High Court in Pretoria to review the remedial action of the Public Protector’s State of Capture report.
Former Public Protector Thuli Madonsela directed that a commission of inquiry be established.
The report directed Zuma to establish a commission of inquiry led by a judge, selected by the Chief Justice.
However, Madonsela noted in the report that she was unable to complete the investigation due to a lack of funds.
Advocate Ishmael Semenya told the court that the Public Protector cannot instruct the president on how to exercise an executive power.
“Now let us examine the question of the separation of powers, is she competent to then direct the president to hold a commission on inquiry? With respect to this submission, she’s not. We know that to be correct because the Constitution tells us that the Public Protector is subject to the Constitution and the law.”
He adds the Public Protector cannot recommend remedial action without making findings of misconduct.
“One cannot take a remedial action where there’s no conduct of maladministration or impropriety. There ought to be a correlation or a nexus that the remedial action that the Public Protector takes is the remedy against impropriety, the correction of that impropriety or the correction of the prejudice.”