Public protectors were out of line

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Adv Ishmael Semenya SC for the president argued that the two public protectors made remedial orders beyond the scope of their powers in both these matters.

Public Protector Busisiwe Mkhwebane was forced to backtrack on the remedial action in which she said Parliament should change the mandate of the Bank.

The order to institute the commission of inquiry was made by Mkhwebane's predecessor Thuli Madonsela.

The DA's application for a declaratory order to force the president to implement the commission of inquiry was heard in the High Court in Pretoria on Tuesday. The party also asked the court to declare that Zuma had violated his constitutional obligations by not implementing the remedial actions.

Zuma made a counter-application for a stay of execution in implementing the remedial actions until the review of the remedial action was completed.

Semenya argued that the remedial action instructing Zuma to institute the commission, for which Chief Justice Mogoeng Mogoeng would have to decide on the judge to lead the commission, was "the most unconstitutional dictate by a functionary to a president".

He said this power belonged to the president and the president only. That was the reason why he had not applied for an interdict ahead of the review application on the remedial action, as he "could not interdict himself".

He said the public protector's remedial actions did not go as far as to recommend that a commission of inquiry should investigate the matter further.

Anton Katz SC for the DA argued that there was no reason why Zuma should not have instituted a judicial commission of inquiry into state capture.

He said the Constitutional Court had already given clarity on the effect of a mere review application in the case of Tshwane vs AfriForum, in which it found that a mere review application is not sufficient for a stay of execution in implementing the action.

He said the only way the remedial actions, which were declared as binding in the Nkandla case, would not have to be implemented, was if the president interdicted it pending the review and when the action was reviewed and set aside.

Katz said the argument that the review process would be made moot, did not carry water. The review would still give clarity on the legal dispute on her powers. The president had said that he was not opposed to establishing a commission of inquiry, Katz said.

Hamilton Maenetje SC for the public protector, who supports the DA that Zuma should not be granted a stay of execution, said it would harm the office of the public protector if an application to review was made without applying for an interdict to suspend the implementation of the remedial actions.

He said the public protector's office would "become ineffective and those that are reliant on her will be left remediless".

Maenetje disputed the president's argument that she did not have the power to recommend further investigation.

Judgment was reserved.

Source: Business Day