Anton Katz SC, legal counsel for the DA speaks to the party's federal chairperson James Selfe at the Pretoria high court. Picture: Zelda Venter
Pretoria - Why does President Jacob Zuma have a problem with Chief Justice Mogoeng Mogoeng appointing a judicial commission of inquiry, as set out in the remedial action called for by former Public Protector Thuli Madonsela's State of Capture report? This was the question asked by Anton Katz SC, legal counsel for the DA, during arguments in the high court in Pretoria on Tuesday.
Katz said it does not seem that Zuma has a problem appointing such a commission, but he seems to have a big problem with the Chief Justice appointing the commission.
" Does he not trust the wisdom of the Chief Justice? What is his difficulty? He already said in Parliament that he supports a commission and that he is due to establish one," Katz said. He questioned why Zuma has not yet appointed a commission of inquiry and why he is so vigorously apposing Tuesdays' application by the DA to force him to comply with the remedial action.
Zuma launched a counter application for a stay of the remedial action, pending an application by him next month (October) to review and set aside the State of Capture report.
Zuma argued that if the court now ordered him to appoint a commission if inquiry and the court ruled in his favour next month in  setting aside the State of Capture report, it will render this court's  order moot.
Judge Motsami Makume also questioned what would happen to the commission, if its in the meantime appointed,  in the event of the court setting aside the report next month. 
But Katz responded  that the President failed to adhere to the ruling of the Public Protector for more than six months and that he should be held accountable. He said the interest of justice and the Constitution  required Zuma to adhere to the remedial action called for.
Zuma, in his counter application, said the pending review application automatically suspended the remedial action called for by the public protector. He said an order made by this court in forcing him to comply,  will be moot, if the court next month set aside the report.
Counsel for the Public Protector's office, Hamilton Maenetje SC, argued that the president can and must implement the remedial action even while the review application is pending. He reminded the court that former Public Protector Thuli Madonsela gave Zuma 30 in which to appoint a commission of inquire when she issued her report on November 2 last year. She stated in her report that he had the power to appoint the commission, but the power to appoint the judge heading the commission was not in his hands. This, Madonsela stated at the time, was up to the Chief Justice.
Maenetje argued that the president will not suffer any irreparable harm if he now appointed a commission of inquiry.
"He must comply until the remedial action is set aside. If he does not comply, he takes the law into his own hands. He is not justified to say 'as long as I have a review application pending, I am excused from complying," Maenetje said.
Arguments on behalf of Zuma is due to be presented this afternoon.