On 2 December, President Zuma filed an application in the Pretoria High Court to review Public Protector’s recommendation in State Capture report that a commission of inquiry be instituted. The Public Protector, Mabel Mentor, the Council for Advancement of the South African Constitution and a number of political parties were joined in the application.

In the application, President Zuma is seeking to set aside the Public Protector’s recommendation that he appoint a commission of inquiry and instead have the investigation continue under the current Public Protector.

In the State Capture Report, the Public Protector recommended that the President institute a commission of inquiry to fully investigate allegations of state capture in respect of a number of state owned entities – including SAA and Transnet – and government officials. Given that the President himself was implicated in the complaints, the recommendation gave the Chief Justice the power to chose the head of the commission of inquiry to ensure independence. In the report, the Public Protector emphasised the scope of the work and indicated that her office was not adequately resourced to fully investigate the matter.

In the Nkandla case, the Constitutional Court confirmed that the recommendations of the public protector were binding and that they had to be enforced unless set aside by a court. This application will be the first attempt to review and set aside a public protector’s recommendation following that judgement.

The President’s application to have the Public Protector’s recommendation hinges on two arguments. The first is that the remedial action prescribed in the recommendation is inconsistent with the Constitution and consequently, invalid. Under section 84 of the Constitution, the President is given a number of powers as the head of state and executive. One of these powers is the appointment of commissions of inquiry. The President argues that he can exercise this power in an unqualified manner and the recommendation is an unlawful fettering of his discretion to appoint a commission of inquiry and also compromising the doctrine of separation of powers.

The President also relies on the Commissions Act, 1947 to support this contention. The Act empowers him to appoint a commission of inquiry for the ‘purpose of investigating a matter of public concern’ and argues that the Act makes it clear that commissions of inquiry can only be instituted for matters which the President decides are of public concern. It is unclear whether he intends to argue that state capture is not one of public concern but it appears that he may be arguing that he does not consider it to be an issue of public concern that requires the appointment of a commission of inquiry.

It is further argued that the Presidential discretion cannot be exercised by other entities and bodies at the risk of opening the floodgates of having endless commissions instituted for any reason. The difficulty with this argument is that no body, other than the Public Protector, is likely to be in a position to recommend the appointment of a commission of inquiry and the flood of inquiries feared by the President is thus unlikely to materialise.

The second argument raised to challenge the recommendation is that it constitutes an unlawful delegation of power. The President argues that the recommendation that a commission of inquiry investigate the allegations of state capture is a contravention of both the Public Protector Act and the Ethics Act. Both pieces of legislation give the Public Protector the sole power to investigate complaints. However, the Public Protector did investigate complaints made under the Public Protector Act and the Ethics Act, the finding of which were contained in the State Capture Report. The recommendation does not require an investigation of these complaints but prescribes that the commission of inquiry undertake an investigation much broader than contraventions of the Ethics Act.

The application also alleges that “it is now commonly accepted that commissions of inquiry are executive action and having them presided by a member of the judiciary should be discouraged for they cross the line for what is an executive function and that which is a judicial function.” An odd allegation considering that both the Marikana and Arms Commission were presided over by judges. The application also challenges the constitutionality of delegating the power to choose the head of the commission of inquiry to the Chief Justice.

The issues raised in this application are unprecedented in a number of reasons and it is not clear whether it will succeed. While giving the Chief Justice the power to appoint the head of a commission of inquiry does appear to conflict with the President’s powers, it would make little sense to have the President appoint the head, essentially allowing him to choose the judge and jury in his own case and compromising the independence of the commission.

The President’s solution to this difficulty is to propose that the investigation be referred back to the Public Protector. While this would avoid many of the constitutional difficulties raised by the recommendation, the State Capture Report made it clear that the scope of the investigation in far beyond the capacity of her office.

While the President’s application raises valid legal points on the doctrine separation of powers and the potential ambit of the Public Protector’s recommendations, it also serves to delay the commission of inquiry’s investigation into the allegations of State Capture and improper conduct by the President. South Africans will once again be waiting to see how much protection our Constitution can afford us.

The Respondents had fifteen days to file the notice of intention to oppose.