“Why does he have a problem with Chief Justice appointing the judge, and does he not trust the wisdom and decision of the Chief Justice?”
This is the thrust of the Democratic Alliance’s argument in Pretoria High Court, as it goes head to head with President Jacob Zuma on whether the president can legally delay establishing a commission of inquiry into state capture.
The question was pitched by Advocate Anton Katz, SC, acting for the DA. He said that Zuma was basically seeking an order preventing the previous Public Protector Thuli Madonsela’s remedial action in her “State of Capture” report.
The party is engaged in a legal tussle, opposing Zuma’s counter-application which seeks a delay in establishing a commission of inquiry into state capture.
This is pending his review application to have the public protector’s remedial actions set aside.
“He is seeking a stay against his own compliance with remedial action taking by the Public Protector,” Katz argued.
He went on to argue that granting such a “restraining order “against the public protector’s remedial action would be an intrusion into the realm of the statutory constitutional powers that the public protector holds.
He added that the public protector was a constitutional body and that the court should be careful in granting, what he referred to as, a “restraining order”.
The DA has also asked the High Court to hand down a declaratory order that Zuma is violating his constitutional duty by delaying the implementation of the remedial actions.
Review rendered moot
The party is also seeking an order that Zuma establish the inquiry, pending the review to have the remedial action set aside.
Katz was critical of Zuma’s argument that if he established the commission before the review was heard, that the review would then be rendered moot.
He said this was irrelevant, as case law showed that a review is not grounds for a stay of execution of administrative duties.
Katz reasoned that Zuma’s argument – that if he establishes the commission before the review is heard, that the review would then be rendered moot – was irrelevant, as case law showed that a review was not grounds for a stay of execution of administrative duties.
Zuma has launched a separate review application against Madonsela’s recommendation that he establishes a commission of inquiry and that Chief Justice Mogoeng Mogoeng choose a judge to preside over it.
Madonsela made the recommendation in her “State of Capture” report into whether Zuma’s friends, the controversial Gupta family, had undue influence on the executive.
Appointing a judge
Katz told the court that the Zuma’s only issue with the remedial action was that Mogoeng would suggest which judge presides over the inquiry.
“Why does he have a problem with chief justice appointing the judge and does he not trust the wisdom and decision of the Chief Justice,” said Katz.
The review is set to be heard in October.
The public protector’s legal team reiterated the DA’s argument about Zuma’s counter-application for the stay, and said Zuma’s issue was with the appointment of the judge.
Advocate Hamilton Maenetje, representing the public protector, also told the court that Madonsela had made observations, and not findings, and that the observations should be delved into during the inquiry.
The application continues.