For a brief moment at the Constitutional Court on Thursday, it seemed that former president Jacob Zuma had found an unlikely legal ally in Freedom Under Law.
The NGO argued before SA's highest court that it could never be lawful for the public protector to tell another organ of state to do something it normally has a discretion to do.
Just last week Zuma's counsel at the state capture commission, Muzi Sikhakhane SC, raised Zuma's long-held concerns about the constitutionality of the commission - concerns raised initially when Zuma challenged the establishment of the commission in court in 2016.
One of his grounds - rejected by the high court - was that the then public protector, Thuli Madonsela, could not tell Zuma, then president, to establish a commission - something that was within his exclusive constitutional competence and discretion.
It sounded at first blush a lot like what Freedom Under Law was saying this week, in an altogether different case.
But the NGO said the principle was subject to an important qualifier: it would be different if that organ of state was the subject of the public protector's investigation and had adverse findings made against it.
In his written argument, Freedom Under Law's counsel, Gilbert Marcus SC, was even more explicit: "The state capture decision is not an example of the public protector directing an organ of state that was not the subject of her investigation, and against which she made no findings of unlawfulness, to perform a discretionary function. On the contrary."
In that case - as the judgment had found - Zuma was one of the subjects of the investigation and the public protector had made a number of damning allegations against him.
Marcus emphasised how crucial the institution of the public protector is - separate from whoever the incumbent is. The highest court "should approach the task of defining the ambit of [the public protector's] powers and duties so that, long after the incumbent vacates office, the institution is able and equipped, and suitably constrained, in the performance of its functions".
Since Madonsela's time, the jurisprudence around the office of the public protector has often developed in a heightened political atmosphere - the litigation on the "State of Capture" report and the Nkandla judgment being two examples.
The atmosphere is even more heightened now with incumbent Busisiwe Mkhwebane, who was accused this week by President Cyril Ramaphosa's lawyers of acting in bad faith against him and abusing her office.
Indeed, the case being heard this week had nothing to do with Zuma. It was a face-off between Ramaphosa and Mkhwebane over her Bosasa report, in which she found that Ramaphosa misled parliament in how he answered a question about a R500,000 payment from Bosasa's Gavin Watson.
Her report went much further than the Watson payment, looking into the entire CR17 campaign which saw Ramaphosa elected president of the ANC in 2017.
Mkhwebane said that millions were received by the campaign, over R200m she said later, and this exposed the president to "the risk of some sort of state capture".
She detailed the movement of monies between the campaign's various bank accounts and directed the speaker of parliament to demand that Ramaphosa disclose details of the donations and the names of the donors.
She found there was merit in a suspicion of money laundering - "a devastating finding to make of the president of any country", Ramaphosa's counsel, Wim Trengove SC, said this week.
The high court set aside Mkhwebane's report in its entirety, and sternly rebuked her for parts of it - in particular saying the finding on money laundering was irrational and "reckless" …
In the Constitutional Court, Trengove argued that there was "not a shred of evidence" for her finding that there was a prima facie case of money laundering.
Timothy Bruinders SC, counsel for national director of public prosecutions (NDPP) Shamila Batohi, argued that Mkhwebane had crossed the line by instructing Batohi to investigate possible money laundering and report back to her - something that is in the discretion of the National Prosecuting Authority (NPA). The constitution and the NPA Act "prohibit any interference with that power of investigation, and they guarantee prosecutorial and investigative independence of the NDPP", he said.
Sikhakhane, who is also Mkhwebane's counsel in the Bosasa case, said Mkhwebane had found only a suspicion of money laundering - because of "the movement of money" - and had simply referred it to the right agency.
After intense questioning from the bench, however, he said this might be a part of the report that the court may want to change, though it was not, he said, a basis to set aside the report as a whole.
The instruction to Batohi was a clear example of the principle set out by Marcus. He added another three:
- The public protector cannot direct another state functionary to act in breach of, or go beyond, its legal powers;
- If the public protector's finding is that an organ of state has acted unlawfully, it is entirely appropriate that it then be directed to do what is required to fix that unlawfulness; and
- When the public protector alerts another organ of state to her report, that organ of state may not simply ignore it.
Judgment was reserved.
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