In her latest bid, Mentor has now asked the high court in Pretoria to dismiss Zuma’s application that he has sole powers as president of the country to appoint a judge to investigate him.
Last year, Mentor, former public protector Thuli Madonsela, the DA, EFF and UDM successfully petitioned the same court to prevent Zuma from blocking the release of the damning State of Capture report. Following the court verdict, the report was released in November last year.
Last month, the high court granted Zuma a stay to establish a judicial commission of inquiry until he is allowed to give his reasons that he would suffer prejudice or harm if powers to appoint a judge were given to Chief Justice Mogoeng Mogoeng.
The ruling prompted Mentor and the EFF to file papers arguing that the president was implicated in the report and should not have any role in the appointment of a judge. The case has been set down for trial today and is expected to last until Thursday.
The trial looks set to argue whether a sitting president who is being accused of wrongdoing has powers to set up a commission of inquiry to investigate and legally, without any bias, find a fair verdict.
The court proceedings follow Madonsela’s report, which implicated Zuma and his son Duduzane in alleged illegal dealings with the Guptas. The report also found that Duduzane had substantial shares in Tegeta, which bought the Optimum Coal Mine from Glencore, allegedly using funds from Eskom to purchase the mine.
Madonsela also pointed out various illegal dealings involving other state-owned entities (SOEs), but said her office had a limited budget to investigate such claims.
In her recommendation she said a commission of inquiry should be established and a judge of such a commission should be appointed by the chief justice.
Zuma disagreed with Madonsela’s argument on the appointment of a judge. In his papers, Zuma argued that Justice Mogoeng did not have the powers under the constitution, saying such a relief was “unconstitutional and invalid”.
Zuma also argued in his papers that there was no basis on which to suggest that a judge selected by him would not be independent and impartial.
Mentor and the EFF - who both filed their papers on October 4 - vehemently disagree.
In her reply, Mentor said: “The Constitutional Court has recognised that judicial officers may perform administrative tasks. This is provided that such tasks are not inconsistent with their judicial functions.
“Thus, the Constitutional Court has implicitly recognised that it is lawful for judges to perform administrative tasks not specifically provided for in the constitution and where such tasks do not conflict with their judicial functions.”
According to Mentor, the purpose of the probe was to ensure that the outcome was fair.
“The president’s interests are clearly implicated by the State of Capture report. He is at the centre of the allegations regarding the Gupta family’s involvement in the appointment of cabinet ministers.
“In addition, his son’s business interests are also heavily implicated by the allegations regarding the award of contracts by SOEs to Gupta-owned businesses.
“If he were (to be) given free rein to select the judge to preside over the commission of inquiry, a reasonable apprehension of bias may arise undermining the legitimacy of the inquiry in the eyes of the public.
“The direction that the chief justice select the judge who is to preside over the commission of inquiry is therefore clearly rational. The president’s argument to the contrary must therefore be rejected,” Mentor said.