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President Jacob Zuma has finally filed papers with the courts to challenge the State of Capture report. The report paints a sorry state of affairs where the president of the Republic of South Africa is compromised and exposed, as details of his relationship with the Gupta family are laid bare.
Although the report does not make conclusive findings against Zuma, it raises serious concerns about whatever is remaining of Zuma’s integrity. This is why he is going to go all the way to discredit the report and ask the courts to set it aside.
Instead of getting on with the work of implementing Madonsela’s recommendations, Zuma is back at delaying tactics. It would be better for Zuma to allow for the establishment of a commission of inquiry and get it done with.
My concern with Zuma’s latest bid to challenge Madonsela’s report is that there seems to be no legal strategy on his side. Firstly, why would the court agree to set aside a report that is not conclusive and explicitly recommends further investigations? One of the smart moves by former Public Protector Thuli Madonsela was to ask for further inquiry into the allegations of state capture. Her report has raised concerns about appointments of certain individuals in powerful state institutions, particularly the appointment of Des Van Rooyen as treasury minister and Brian Molefe as the CEO of Eskom.
Zuma’s argument would most likely be that the correct procedures weren't follow to compile report and makes wild, untested allegations against the president and some of his friends, including the Guptas. For the court to set aside this report would mean that it is not satisfied that there is a need for further investigation into the matter. Zuma would have to provide evidence and testimony showing that there is nothing wrong with the relationship he has with the Guptas. I am not convinced that he can actually prove this before the court.
Inconclusive as it may be, the evidence that is already laid out in Madonsela’s report justifies the need for further inquiry into the matter. The court might find that in the interest of justice, there is a need to clear this matter up and the only way this can be done is through a commission of inquiry.
Regarding Zuma’s argument that it is unlawful for Madonsela to have recommended that Zuma may not appoint the judge to head the commission, the court might look into Zuma’s history and attitude towards the office of the Public Protector. This is the history of a man who, together with his comrades in Parliament, severely mishandled the Nkandla report. This is the history of a man who openly attacked Madonsela on the Nkandla report, only to apologise later after the Constitutional Court ruling that he cannot simply ignore the report while criticising it at ANC rallies.
On that basis, the court might arrive at the conclusion that Zuma cannot be trusted with the responsibility of ensuring that anything meaningful comes out of the office of the Public Protector. Therefore, the court might find it justifiable that Zuma should not be allowed to appoint a judge to head the commission. The mere fact that Zuma even approached the court on the State of Capture report might also raise suspicion that he has no intention to implement Madonsela’s recommendations.
Zuma knows that legally speaking his case is weak. However the ace up his sleeve might be in the form of Madonsela’s successor, Busisiwe Mkhwebane. This is where I think his game plan lies. The president might still do well in court if he can count on Mkhwebane’s negative attitude towards Madonsela’s report on state capture.
In the oddest turn of events, Mkhwebane might decide not to vigorously oppose Zuma’s application. If the new Public Protector wants to toss Madonsela’s report in the dustbin, all she has to do is not to oppose Zuma’s application. The court might find it difficult to rule in favour of Madonsela’s report if Mkhwebane is not interested in defending it. After all, the lawyers who will be arguing in defence of Madonsela’s report will be paid by Mkhwebane as the Public Protector and will consequently be under her instructions. While the opposition parties want to defend the report against Zuma’s attempt to derail it, it is still the report from the office of the Public Protector, and as such it is the responsibility of the Public Protector to defend it.
It will be interesting to see how the court deals with the situation where the sitting Public Protector has no appetite to defend a report by the former Public Protector. Zuma is counting on this.* Ralph Mathekga is an independent political analyst and author of the book When Zuma Goes. He writes a weekly column for News24.
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