President Jacob Zuma, represented by advocate Ishmael Semenya, was in court again on Tuesday. Before the bench of the North Gauteng High Court, Semenya on behalf of the president argued that former Public Protector Thuli Madonsela didn’t have the power to recommend a commission of inquiry be appointed by Chief Justice Mogoeng Mogoeng to investigate allegations of widespread corruption between senior government officials, including Zuma, and the Gupta family.

In November 2016, on her last day in office, Madonsela said her office didn’t have sufficient resources to investigate the State Capture allegations and recommended Mogoeng appoint a judge to hold a commission of inquiry. She essentially threw forward the investigation she hoped to conduct to an independent panel, which couldn’t be influenced by Zuma, who was implicated in the allegations.

According to the Constitution, the president has the power to appoint commissions of inquiry. Semenya claimed it was Zuma’s sole right to appoint such an inquiry and couldn’t be told what to do by the Public Protector. He also claimed that because Madonsela’s report didn’t make conclusive findings, her recommendations were invalid. “She cannot raise that allegation to a fact. She has not made a finding. It does not help her constraint that she cannot overstep her powers‚” said Semenya.

Zuma, his family and his key allies have been implicated in State Capture claims. Semenya was questioned on how the president could be trusted to appoint the inquiry, which he’s said multiple times he wants to do yet has done nothing, and how an inquiry appointed by the president could be fair.

“He has done nothing other than tell Parliament that ‘we have taken a decision to establish a commission’. Is that conduct one can expect from a reasonable President in the context of a constitutional democracy?” asked Judge Dunstan Mlambo. He also questioned why Madonsela’s claim to have a lack of resources shouldn’t necessitate a commission of inquiry.

Representing the Economic Freedom Fighters (EFF), Advocate Tembeka Ngcukaitobi hit back at Semenya, “It is impossible to conceive of a rational appointment of this commission of inquiry being made by the same person who is the subject of the investigation.”

Advocate Vincent Maleka, representing the Public Protector in the case, said Zuma had an obligation to assist the Public Protector to ensure her remedial actions were effected, as previous cases had shown. He said Zuma himself had committed to establishing a commission of inquiry into State Capture and giving the president the sole responsibility to decide how such a commission could be appointed could be “oppressive”.

Advocate Dali Mpofu, representing the United Democratic Movement and Congress of the People, said if Zuma were allowed to appoint the commission of inquiry, the public would never trust a finding that exonerates him if the president is allowed to be both the judge and jury in a case investigating his own behaviour. He said the Public Protector’s findings should be enough to allow her recommendation to proceed and that given the president’s involvement in the allegations he has a conflict of interest that should prevent him from appointing an inquiry.

The legal technicalities might be difficult to understand, but Madonsela’s reasoning and that of the opposing counsel on Tuesday is simple: Zuma shouldn’t be allowed to establish an inquiry investigating his own alleged wrongdoings. That’s not just allowing him to be a referee and player at the same time; it’s like allowing him to act as FIFA, setting the rules of the game while also being a player and referee.

The president, as his counsel’s argument showed, is getting desperate. For years he’s been able to avoid investigation and prosecution by exhausting all legal options of appeal and because he has made key appointments, like National Prosecuting Authority head Shaun Abrahams, out of self-interest. He’s also had the support of the ANC’s wide network, which controls much of the state. Not everyone in the party backs Zuma but very few ANC leaders or government officials have been willing to sacrifice the party’s image to achieve justice. Those who have have felt the president’s wrath.

But Zuma’s influence in the party is declining. He’s acting, as the most recent Cabinet reshuffle showed, like a desperate man. He’s running out of options in court and reports of how he, his family and his allies have sold the state to the Guptas will continue to emerge.

The president might hope his chosen successor, Nkosazana Dlamini Zuma, can hold off the cases against him, but the opposition against Zuma is reaching a crescendo and the pursuit has been relentless. Even as leader of the ANC and state, Zuma has repeatedly lost court cases and he is likely to lose the case currently in front of the North Gauteng High Court.

And if he does, he’ll appeal. Zuma will continue to appeal any rulings against him as long as he has the funds to do so, which, given his son Duduzane’s reported profits of dealings with the Guptas, could last years. The president is 75 years old and if those appeals last as long as some in the past have, he may not ever appear in the dock for his crimes. But his legacy is in tatters and his family members who have profited off corrupt deals might need to relocate permanently to Dubai to avoid prosecution or eventually having their assets seized.

Future ANC leaders may choose to exonerate Zuma and his family or pressure prosecutors to treat them lightly. But the president is running a race he is destined to lose. Eventually the courts will catch up with him. He has made it this far, against all odds, but for now his options are fast running out. DM

Photo: South African President Jacob Zuma (EPA/SUMAYA HISHAM), former Public Protector Thuli Madonsela (Greg Nicolson)