It was not “ill-advised and reckless” for the president to approach a court about the Public Protector’s State of Capture report, said his lawyers in court papers.
President Jacob Zuma’s application for leave to appeal – filed on Friday – came just days after the ANC adopted a resolution at its national elective conference that a judicial commission of inquiry into state capture should proceed immediately. The president’s application for leave to appeal will delay the implementation of that resolution.
In the judgment earlier in December, a full bench of the High Court in Pretoria, including Gauteng Judge President Dunstan Mlambo, rejected the president’s court case in which he sought to challenge the remedial action directed by former public protector Thuli Madonsela.
In her State of Capture report, Madonsela had listed a number of damming allegations – and prima facie evidence to back up the allegations – against a number of people in government, including the president.
As “remedial action”, she directed that a judicial commission of inquiry be established to look into the allegations. She also directed that the commission’s chairperson be selected by Chief Justice Mogoeng Mogoeng, because the president had a conflict of interest.
When Zuma tried to challenge Madonsela’s directions he was sent packing, with the court calling the case ill-advised, unreasonable and reckless and taking the unprecedented step of awarding costs against him in his personal capacity.
But Zuma’s legal team says the High Court’s judgment was wrong. His application for leave to appeal quotes a previous judgment of the Constitutional Court, which said that if the president did not want to comply with the remedial action directed by a public protector, he should approach a court. This is what the president did, said the application.
The president wanted to “resolve the application of the doctrine of the separation of powers, specific to this case” – as he was constitutionally required to do, said the application. This was not reckless or ill-advised.
The application listed a number of other grounds of appeal including that the High Court got it wrong when it said that the Public Protector had the constitutional power to hand over powers that vested in her office to a commission of inquiry.
The judges were also wrong to decide that the public protector did not have to first find “impropriety or prejudice” before she took remedial action; or that she can take remedial action on findings that were only prima facie, said the application.
It also said that if a court was to make a personal costs order against someone, that person had to cited as a party – in his personal capacity – and given an opportunity to explain his conduct.