Advocate Tembeka Ngcukaitobi for EFF and Advocate Dali Mpofu representing UDM and Cope argued that the president can't appoint a judge of his choice to head the commission of inquiry into the state capture. Picture: ANA

Pretoria – President Jacob Zuma cannot appoint a judge of his choice to head the commission of inquiry into the state capture, the North Gauteng High Court heard on Tuesday.

"No one can be a judge in their own court, he wants to be everything," Tembeka Ngcukaitobi, for the Economic Freedom Fighters (EFF) said.

Ngcukaitobi said Zuma did not wake up one morning and suddenly decide that he was going to investigate his own friends. 

"The trigger was the public report."

Read: #StateCapture: Madonsela lacked funds to make conclusive findings

Last year, former public protector Thuli Madonsela Madonsela recommended that a commission of inquiry be established by Zuma but that the judge should be chosen by the Chief Justice Mogoeng Mogoeng.

Zuma has maintained that Madonsela overstepped her boundaries and had no right to tell him that he must  appoint a judge to head up the inquiry.

He also asked for an order sending the State of Capture report back to the public protector for further investigation.

In reference to this statement, Ngcukaitobi said the person appointed to head the state capture inquiry must be independent and must also be perceived to be independent.

"The president's words are not enough to assure us the he will give us an independent inquiry."

He said Zuma indicated three times in Parliament that he accept there was a need for a commission of inquiry and he cannot complain about it now.

Also read: Vytjie Mentor turns up the heat in Zuma #StateCapture probe

"The president must be held to the statement he made in Parliament."

Judge Phillip Boruchowitz pointed out to Ngcukaitobi that the public protector made observations without making concrete findings. 

"Are these enough to justify an inquiry," he asked.

Ngcukaitobi said there was enough for the public protector to make recommendations of remedial actions if she suspected impropriety.

Ngcukaitobi went on to say that it was never essential for the public protector to make findings before ordering remedial action citing that her suspicions were enough.

Advocate Dali Mpofu, for the United Democratic Movement and Congress of the People, reiterated Ngcukaitobi's argument that it would be meaningless to the public if Zuma was allowed to be a judge and jury in his own case.

"A finding that exonerates him will never find credibility if he is the judge and jury in his own case," Mpofu said.

He argued that there was not such thing as prerogative and said that it only exited in monarchies.

He said Madonsela's observations were serious enough to trigger further investigations. 

"These are not observations merely in the air."

Mpofu is expected to continue with his presentations on Wednesday.