Consider these presidential weasel words:

 “I have considered this matter … carefully, including the unprecedented legal implications of the order directing the Chief Justice to select a single judge to head the commission of inquiry. I have expressed my reservations about the legality of this directive, which may be the subject of the appeal.”

So what is the President actually doing? Proceeding with an appeal attacking the legality of the direction given to him and the Chief Justice by the erstwhile Public Protector, or actually appointing Justice Zondo? The latter does not appear to have officially accepted the appointment and would be well advised to consider his position carefully before he does. No gazetting of the applicable terms of reference (apparently still to be decided and a hot potato too) and his appointment has been made public at the time of writing.

It has long been contended, inter alia, by the Quaker Peace Centre, the FW de Klerk Foundation and Afriforum, that the Public Protector had no business asking the Chief Justice to select the judge for the commission.

They argue that the doctrine of the separation of powers, so hotly contested last month in the EFF and others v The Speaker and others (the impeachment case) precludes judges from becoming involved in or actually doing the work of the executive branch of government. The appointment of commissions of inquiry is plainly and expressly firmly in the realm of the executive. Section 84 of the Constitution makes this as clear as crystal.

The issue is: what is to be done when the risk of a conflict of interest is present (as it is here because of the friendship between the President and the Gupta family and because the President’s son Duduzane works for them) which precludes the President from appointing a commission concerning their doings, choosing a commissioner and setting terms of reference, budget, duration and other parameters of the commission?

The issue is best dealt with by reading sections 90 and 96 of the Constitution. The president is “unable to fulfil [his] duties” due to the “risk of a conflict between [the president’s] official responsibilities and private interests.” The two sections provide a detailed mechanism for dealing with this sort of situation and the relevant parts, as quoted above, conclude that the deputy president must act in his place.

The QPC, FWF and Afriforum felt so strongly about this interpretation that they placed it before the Constitutional Court in June last year in an effort to bring the matter to a swift, sensible and finally binding head. The court indicated that it was not then in the interests of justice to grant direct access and suggested, unusually so, that the applicants intervene in one or more of the other cases in which the issue arises or could arise. At the time the #Guptaleaks were just beginning and the revelatory works of investigative journalists were not yet before the court.

In the matter of the “dis-appointment” of Mxolisi Nxasana as NDPP, the Gauteng Full Bench has ruled that the President can have no part in appointing the successor to the illegally appointed Shaun Abrahams and has directed the Deputy President to replace him within 60 days. No surprises there, given what the Constitution spells out for the guidance of those grappling with conflict situations.

However, in the President’s review of the directions given by the Public Protector that he appoint a commission using a judge selected by the Chief Justice, a different approach is adopted by a similarly constituted Full Bench. Without actually identifying the source of the power of the Public Protector to involve the Chief Justice and without due regard to its own findings in the Nxasana matter, the court rejected the arguments put up by the President and awarded costs against him in his personal capacity.

There are currently appeals pending in both matters. Whether the President and others persist in the appeals remains to be seen, given what he has placed on record. The perplexing inconsistency in approach by the Full Bench in the two recent matters needs to be addressed and the possible delays in appeals litigation are not in the national interest given the deleterious downside of state capture.

If the Zondo commission actually sees the official light of day, it is vulnerable to attack on the basis that the Chief Justice had no business appointing his Deputy and his Deputy had no right, given sections 84, 90 and 96 of the Constitution, as well as the Nxasana decision, to accept an appointment from anyone other than the Deputy President. The contrary can be argued on the basis of Zuma’s failed review of the remedial action directed by Madonsela in the “State of Capture” report. Until there is clarity any commission is vulnerable to an interdict pending a judicial review of the validity of its appointment.

The QPC and its co-applicants may have to consider supplementing their application, seeking leave to renew and expand it (and joining the Chief Justice and his Deputy) if the presidential media announcement becomes an officially gazetted executive act. If the Deputy President exercises his powers and appoints his own commission of inquiry first, then a lot of delay and litigation could be avoided. With the benefit of his insight into a lot of revelations since the Public Protector last applied her mind to the matter, the terms of reference of the Ramaphosa inspired commission would be a lot more relevant than those contemplated by Madonsela in 2016. If the Deputy President does not step up to the plate, the setting aside of both the selection of Justice Zondo and the appointment of the commission by the President will have to be added to the original relief claimed by the QPC et al.

This bold step is certainly preferable to allowing the Zondo commission to gently drift into existence only to be met by objections six months down the line (probably from those alleged to be involved in state capture) that will take the form of a High Court interdict pending final determination of a review application that will take ages to complete and will be followed by appeals to Bloemfontein and Braamfontein that will, all told, occupy some three years of litigation time. The delay will leave the thoroughly shredded and icy “cold case” of state capture to be investigated either by the successor to the Zondo commission, which appears likely, or by the Zondo commission itself, should its provenance be regarded as constitutional by the highest court in the land, sitting without the Chief Justice and his Deputy, who will be parties joined for their legal interest in the relief sought in the matter.

It is vital that the legal issues around the appointment of a commission of inquiry into state capture be ruled on now and with final effect. The discrepancy in the two approaches of the Gauteng High Court Full Bench needs to be cleared up at the highest level and soon. The capture of the NPA and the quality of the leadership of the current NDPP, Shaun Abrahams, will continue to do irreparable harm to the well-being of the criminal justice administration if appeals wend their weary way through the system. The putrid smell of alleged state capture is best dispersed by a properly constituted commission of inquiry that is not bogged down by dilatory technical side issues. The true meaning of sections 90 and 96 of the Constitution needs to be determined: finally, diligently and without delay.

Whether the announcement by the President, quoted from above, is a genuine attempt to appoint a commission of inquiry into state capture or a Machiavellian stratagem to delay the commission for years matters not; the responses of the Deputy President and, failing him, civil society to the possibly unintended consequences of the announcement that are discussed above are what does matter. DM