Pretoria - Judgment was reserved on Tuesday in the Democratic Alliance’s application for an order compelling President Jacob Zuma to implement the Public Protector’s State of Capture remedial action to establish a judicial commission of inquiry, appointed by Chief Justice Mogoeng Mogoeng.
Judge Motsamai Makume said he will try and deliver his judgment as soon as possible, but it will be delivered before Zuma’s legal bid next month to review and set aside former Public Protector Thuli Madonsela’s State of Capture report.
The DA is asking the high court in Pretoria to find that Zuma has violated the Constitution as he has failed to comply with Madonsela’s instructions that he establish a state capture judicial commission of inquiry.
Katz argued that it is common cause that the remedial action is binding and the fact that the review application was looming, did not influence the fact that he was obliged to establish the commission.
Zuma, on the other hand, through his advocate Ishmail Semenya SC, argued that Madonsela overreached her powers when she ordered him to appoint a commission of inquiry.
Semenya said the president did not need to comply with her directive in light of the looming review application, which he felt Zuma had a good chance of succeeding with.
He questioned how the office of the public protector’s office, as a chapter nine institution, could ever instruct the president to appoint a commission. “She even says ‘I will tell you how to do it - by requesting the Chief Justice to appoint the presiding judge. This is a dictatorship of the worst kind.”
The president filed a counter application for a stay of the remedial action pending the outcome of his review application next month, for in case the court ordered that he had to implement the remedial action in the meantime.
Semenya said Madonsela could not force the remedial action on the president.
Anton Katz, arguing on behalf of the DA, in rebuttal to Semenya’s arguments said an order forcing him to appoint the commission in the meantime would not influence his review application.
The judge pointed out to Katz that the president’s stance is “don’t tell me what to do, I will do it.”
Katz responded: “Then he must do it. President Zuma told the people of South Africa in Parliament that he will do it...The only prejudice to the president if he sets up the commission is that the dark secrets which may be there, may come out. He may be embarrassed by what comes out, but this is not prejudicial to him.”