Public Protector Busisiwe Mkhwebane is opposing President Jacob Zuma’s application of a judicial review of the state capture findings. Picture: Mike Hutchings/Reuters

Pretoria - Public Protector Busisiwe Mkhwebane is opposing President Jacob Zuma’s application of a judicial review of the state capture findings and will argue that in the extraordinary circumstances of this case, he has a duty to adhere to the remedial action required in the State of Capture report.

Public Protector Busisiwe Mkhwebane said she will bring a counter application - if the court ruled in Zuma's favour - that her office be placed in funds to take the investigation into state capture further. 

Zuma is asking the Gauteng High Court, Pretoria, to set aside former Public Protector Thuli Madonsela's findings that a commission of inquiry must be set up. 

The report was released in November last year, following an unsuccessful legal bid by the president to block its release.

Madonsela said in her report that Zuma had to set up a  judicial commission of inquiry into the findings of the State of Capture Report, but that Chief Justice Mogoeng Mogoeng had to appoint a judge to head the commission.

Zuma was given 30 days to appoint the commission, which had lapsed in December. 

Ten months later the commission was still not appointed and the Democratic Alliance last month asked for a court order compelling Zuma to immediately establish a judicial commission of inquiry.

But Zuma’s camp argued that in light of his pending review application of the State of Capture Report he was under no obligation to set up the inquiry at this stage. 

The court agreed and gave Zuma a lifeline pending the outcome of this week’s review proceedings.

Judge M A Makume earlier said the DA has failed to demonstrate what prejudice or harm it will suffer if the president does not appoint a commission of inquiry now.

“Nothing has happened in the last 10 months. It will therefore not make any difference if the commission is appointed after the review shall have been heard, should the president fail in his application to set aside the remedial action," the judge said.

Kicking off Tuesday's application by Zuma, Advocate Ishmail Semenya, acting for Zuma, argued at length that Madonsela did not have the power to instruct the president to appoint a commission and to instruct him to exercise his power through the chief justice. The power to appoint a commission on inquiry is that of the president, he argued.

Semenya said the Public Protector is an organ of State and limited by the separation of powers. He said the remedial action she called for is thus invalid.

He said the Constitution and the Public Protectors Act confers the powers on the public protector to investigate any conduct in the state's affairs that is suspected to be improper, to report on it and to take appropriate remedial action.

He said in this case the public protector is outsourcing her powers to a commission of inquiry to take her investigation further due to a lack of resources. 

But according to Semenya, a commission of inquiry cannot do this. He said Zuma in any event in Parliament said he will appoint a commission on his own time to investigate all the Gupta related issues and not only the recommendations made in the State of Capture report.

Judge President Dunstan Mlambo questioned Semenya on how the public must view the fact that he had done nothing about it up to now. 

Mlambo said Zuma knew from April last year that the Public Protector was investigating complaints brought against him and organs of state regarding their alleged relationship with the Gupta family. 

In October last year, after a brief meeting with Madonsela, he brought an application to halt the issuing of the report. Mlambo said we are now 18 months down the line and still Zuma had done nothing about the allegations. 

"Serious allegations of state capture were levelled against him. He did nothing other than tell parliament he will institute a commission. Is this what one can expect from a reasonable president in a democracy,"  the judge asked. 

Semenya responded that this avenue was not open to him until he had reviewed and set aside the report. " He was legally incapable of doing so until the review is heard,"  Semenya said.

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