As such, regarding the State of Capture Report – the question should be asked whether, given the fact the President is responsible for appointing commissions of inquiry – can the Public Protector recommend that the President appoint a commission of inquiry headed by a judge solely selected by the Chief Justice?

Arguably it is unthinkable that the Constitution would permit unfettered discretion in the exercise of public power – surely there have to be certain checks and balances to ensure that such public power is exercised in not just a lawful manner, but also in a manner which befits the open, transparent and accountable foundational values of the nation. Certain cases previously decided by the courts would certainly support the principle that reasonable limitations can be placed on constitutionally-granted Presidential powers when it is in the public interest.

The powers of the President found in section 84(2) of the Constitution do not appear to include express constraints in their exercise. Nevertheless, the exercise of powers is constrained by the principle of legality and further implicitly by the Constitution in that the President must act in good faith and not misconstrue his powers or function beyond what is contained in the law. This was stated by the Constitutional Court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others.  

As such, it appears that the courts, at the very least, can review on the grounds of rationality, the powers exercised by the President – as was stated in Democratic Alliance v President of South Africa and Others, if it should be shown that the President failed to apply his mind to the relevant issues demanded by natural justice. The President can be forced, at least by the courts, to act rationally when exercising a power in terms of section 84. Given the Constitutional Court’s views on the Public Protector’s powers in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others, the President would probably have to show why it is, given the State of Capture Report, NOT rational to appoint a commission of inquiry.

There are even more considerations as to why the public interest could outweigh the President’s prerogative. In appointing a commission of inquiry – by necessary implication it is important the commission have absolute credibility and therefore not even a whiff of partiality. This would be impossible if the President, as an implicated person in the State of Capture Report, is tasked with the appointing of a judge to preside over the commission of inquiry. It stands to reason that should the President appoint the commission of enquiry – then that would be a built-in bias to undermine the credibility of the commission. The Latin legal phase “Nemo judex in sua causa” – no one can be a judge in his own cause – becomes patently obvious in this context. Therefore, it is arguably necessary that the power be delegated in order to protect the integrity of the commission.

Given further, the circumstances in which the State of Capture Report was compiled, there is a need for the commission of inquiry to bring to finality the investigations conducted by the erstwhile Public Protector. As the Public Protector herself noted in the Report, the Executive Ethics Act obliged her to investigate any alleged breach of the Executive Ethics Code and thereafter, within 30 days, submit a report to either the President or the Premier depending on the nature of the complaint. As is well known – the then Public Protector’s term of office ended on 14 October. It appears as though given the time frames and sheer volume of investigations to be conducted, there would have been insufficient time to make binding remedial actions which would have withstood the scrutiny of the courts. As such, the State of Capture Report does not make specific findings but rather recommends the appointment of a commission of inquiry. The commission of inquiry would then be a judicial fact-finding mission of a very high level of competency, based on the State of Capture Report’s prima facie assessments.

What remains unclear however, is whether in terms of the Commissions Act, the Public Protector can dictate the terms of reference of the commission, which she appears to in the State of Capture Report. Perhaps that will be left to the courts to clarify.

What is apparent though, is that in the somewhat halcyon days of constitutional drafting, no one foresaw that a President in democratic South Africa could be so conflicted that the nation is forced to ponder this dilemma. 

By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights