Zuma appeals State Capture ruling: ‘The court was wrong and is wrong again’

President Jacob Zuma is appealing the state capture report judgment handed down by the North Gauteng High Couty.
President Jacob Zuma is appealing the state capture report judgment handed down by the North Gauteng High Couty.
Image: REUTERS/Sumaya Hisham

President Jacob Zuma has filed for leave to appeal the North Gauteng High Court’s landmark judgment setting aside his review application of former public protector Thuli Madonsela’s State of Capture report.

The 11-page application cites about 20 grounds on which Zuma will argue against‚ among other decisions‚ that he should personally pay costs and that he must institute a judicial commission of inquiry‚ as recommended by Madonsela.

The phrase “the court erred in law” appears at least 16 times in his notice in which he twice cites the separation of powers doctrine.

Zuma also seeks to appeal against the decision by Judge Dunstan Mlambo that Chief Justice Mogoeng Mogoeng chooses the judge to head up the commission.

“The Constitution confers only on the president the power to appoint a commission of inquiry‚ the court erred in holding that this is a power exercised with the chief justice‚” the papers read. “This also offends the separation of powers doctrine.”

Zuma further submits that the high court and Mlambo “erred in law” in holding that he was “ill-advised and reckless in launching the challenge against the remedial actions”.

He bases this argument on the judgment in the matter of the Economic Freedom Fighters vs Speaker of the National Assembly‚ Baleka Mbete in which the EFF sought to have the Constitutional Court compel her to discipline Zuma earlier in 2017.

The court ruled at the time that “a branch of government vested with the authority to resolve disputes by the application of law should have been approached. And that is the judiciary”.

This‚ Zuma says‚ is why he launched his court bid.

As in previous papers‚ Zuma again brings into question the powers of the public protector‚ saying there was no law that authorised Madonsela or her office to instruct another organ of state to conduct a further investigation.

Mlambo held in his judgment that there was nothing in the Public Protector Act or the Ethics Act that prohibited her from recommending a judicial commission of inquiry take the matter further.

“The court erred in law in holding that the public protector can confer on the commission of inquiry “powers of evidence collection that are no less than that of the public protector”.

This is legislating and offends the separation of powers doctrine‚” Zuma argues.

Zuma argues that he could appoint the commission because he would not be involved in instructing it what to investigate. “In appointing a commission of inquiry‚ the president does not determine the issues that are to be probed – the court erred in law in holding that the principle of recusal applies in such a process.”

He further argues‚ based on a previous ConCourt ruling‚ that because he was never cited as a respondent in his personal capacity‚ he should not and cannot be held personally liable for costs.

Mlambo held in awarding costs that because Zuma’s litigation was ill-advised‚ it could not be a further “burden to the taxpayer”. Estimates put the legal costs at some R6-million.

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