The Remedial Action of the "State of Capture" Report in Perspective

Abstract

In the State of Capture report the public protector instructed the president to appoint a commission of inquiry to investigate the capture of state institutions by the Gupta family. The president and his family are personally implicated and due to a conflict of interests, the public protector limited both his choice of a commissioner to conduct the inquiry and the power to specify certain terms of reference. In the Economic Freedom Fighters, the Constitutional Court ruled that the public protector's remedial action is legally binding and must be executed by the state organs concerned. President Zuma challenges the remedial action on the basis that it is the sole prerogative of the head of state under section 84(2)(f) of the Constitution of the Republic of South Africa, 1996 (the Constitution) to appoint commissions of inquiry and that it is an unfettered discretionary power, which may not be limited. It is not only doubtful whether the responsibility to appoint commissions of inquiry is invariably a discretionary power; it is also doubtful whether the president has an unfettered discretion. In the case of a conflict of interest the president would in any event be barred from taking a decision in terms of the nemo iudex maxim if the decision could be tainted by bias. The difficulty is that section 90 of the Constitution does not regulate the ad hoc exercise of section 84(2) powers by another state organ when the president should recuse himself from taking a decision. The limitations imposed by the public protector in regard to the commission of inquiry appear to be the best solution under the circumstances.