DA uses Nkandla to tackle Zuma on 'Capture' report

President Jacob Zuma is facing a new legal battle, after the DA approached the Constitutional Court to declare that he violated the constitution by not implementing the remedial actions contained in the State of Capture report.

In papers filed in court last month, the DA said Zuma violated his constitutional obligation by not appointing a judicial commission of inquiry within 30 days to investigate allegations of state capture as recommended by former public protector Thuli Madonsela.

According to the DA, Zuma was supposed to appoint the commission before or on December 2 as he was handed the report on November 2. Instead Zuma took the report to the High Court in Pretoria on December 12 for judicial review.

Zuma has until January 15 to respond to the DA's application.

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This is the latest move by the DA to weaken Zuma's presidency. Should the Constitutional Court make another finding against Zuma, his critics within and outside the ANC may use it as another reason he should not finish his term as president of the country.

The party argued that Zuma failed to meet the deadline and that his application for judicial review was submitted late.

"President Zuma has failed to comply with the obligations imposed on him to establish a commission of inquiry as catered for in the State of Capture report within 30 days of November 2 2016. It is clear that President Zuma has breached his constitutional obligations," the DA said in court papers.

"The State Capture report was handed to President Zuma on November 2 2016. [Thirty] days after November 2 is December 2 2016. President Zuma has not complied with the remedial action and has thus committed a violation of the constitution," the DA argued.

Zuma's spokesman, Bongani Nqgulunga, said the Presidency was aware of the application and attending to it.

The DA wants to use the Constitutional Court's landmark judgment on the Nkandla matter to compel Zuma to institute the remedial action.

The court ruled last year that Zuma had failed to uphold the constitution by failing to implement the remedial action of the public protector - which included that he should pay a portion of the taxpayer money spent to upgrade his homestead.

In the latest case, the DA argued that it was not up to Zuma to decide when he was required to implement the public protector's remedial action, and he was constitutionally bound to comply unless a court ruled otherwise.

In filing for a judicial review, Zuma told the High Court in Pretoria that the remedial action recommended was unlawful and interfered with the separation of powers between the executive and the judiciary.

He disputed Madonsela's recommendation that Chief Justice Mogoeng Mogoeng should nominate the judge that the president would have to appoint to chair the commission of inquiry.

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However, the process would be delayed as opposition parties have filed an indication to oppose Zuma's motion.

Zuma, through Ngqulunga, announced on November 25 that he intended to institute review proceedings against the remedial action prescribed by the public protector.

The DA wrote to the president informing him that, in accordance with the prescribed time frame, the date for a review to be instituted was December 2 2016.

"Neither the intention to institute review proceedings nor the launching of review proceedings would absolve the president of the obligation to comply with the public protector's remedial action within the time frames specified in the State of Capture report and in order to stay or suspend the obligation to comply with the public protector's remedial action, President Zuma would need to obtain a court order," the DA argued in papers.

The DA insists Zuma failed to meet the obligations imposed on him to establish a commission of inquiry within 30 days of receiving the report.

"The obligations on the chief justice and those imposed on the National Treasury are dependent on President Zuma establishing a commission of inquiry. No steps can, therefore, be taken to comply with this aspect of the remedial action until such time as President Zuma has complied with his obligations," it said.

hunterq@sundaytimes.co.za