Former public protector Thuli Madonsela should have asked parliament for more money to investigate allegations of state capture instead of unlawfully abdicating her powers to a commission of inquiry, the high court has heard.
Counsel for President Jacob Zuma Ishmael Semenya SC argued before a full bench of the High Court in Pretoria, headed by Gauteng judge president Dustan Mlambo, that the court should set aside the remedial action in Madonsela’s State of Capture report.
Madonsela directed President Zuma to appoint a judicial commission of inquiry to investigate allegations of state capture by the Gupta family, but directed that, due to the president being conflicted, chief justice Mogoeng Mogoeng must appoint the presiding judge.
Semenya argued that only the president had the power to appoint a judicial commission of inquiry and that Madonsela had strayed into the domain of the executive.
The remedial action also conferred powers on the chief justice to decide which judge should preside, which was a power he did not have.
Semenya argued the public protector had acted outside her powers when she sought to abdicate her powers to investigate to a commission of inquiry because of a lack of funds.
He severely criticised Madonsela for not completing her investigation and making findings, arguing she should have approached parliament for more funds to enable her to complete her investigation.
He argued the remedial action recommended by Madonsela was not authorised by law, as it did not follow on findings of misconduct, and was not an appropriate remedy to cure the root cause of the complaint before her.
The political parties opposing the application have argued that, having made a statement in parliament that a commission would be appointed, the president was prevented from reviewing the remedial action.
However, Semenya argued that this argument was bad in law.
Asked by judge president Mlambo why the president had done nothing despite learning about allegations of state capture over 18 months ago, Semenya said President Zuma was legally incapable of doing anything until his review of the remedial action had been determined.
The application continues.