Public protector Busisiwe Mkhwebane is backing President Jacob Zuma's argument that Thuli Madonsela's recommendation that the chief justice should appoint a judge to head the inquiry into state capture is flawed.
In an interview with the Sunday Times this week, Mkhwebane said she believed that any judge, even one appointed by Zuma, would be capable of investigating the Gupta family's alleged influence on Zuma's cabinet, because the judiciary was independent.
Her comments came after she told journalists that although she had filed notice to oppose Zuma's application for a judicial review of Madonsela's report, she had sought a legal opinion on whether to proceed with the action.
This is seen as a clear indication that Mkhwebane is likely to withdraw her notice to oppose Zuma.
"[We are checking] whether we dictate to the president for someone else to appoint or perform the president's functions [to appoint the judge]," she told the Sunday Times on Friday.
"The judiciary is independent. Therefore any judge can perform any duty without fear or favour."
That was the basis of Zuma's application to the High Court in Pretoria to take the controversial state capture report on review.
Mkhwebane has now asked law firm Adams & Adams for a legal opinion on whether the recommendation is constitutional as she says she believes the president should have the powers to appoint the judge.
However, Madonsela specifically said that it should be Chief Justice Mogoeng Mogoeng who provides Zuma with the name of a judge, because that person would also have to investigate the president as part of the commission of inquiry.
Madonsela based her recommendation on a statement Zuma made to parliament when he defended himself for not implementing her recommendations in the Nkandla case.
Zuma said in October 2015: "I could not have carried out the evaluation myself lest I be accused of being judge and jury in my own case."
Madonsela's report revealed how the Guptas offered cabinet posts to ANC leaders and tried to instruct government officials to award lucrative government business to their companies.
