DA brought application against Zuma as 'remedial action may take years'

Failure to implement the Public Protector's remedial action on state capture allegations could harm the public's confidence in her office‚ the Democratic Alliance said on Tuesday.

"The Public Protector is only as powerful as the effect of the remedial action. If it is not implemented‚ that could harm the public faith in her office‚" said DA federal executive chairman James Selfe.

Selfe was speaking on Tuesday outside the Pretoria High Court‚ which the party has asked to force Zuma to comply with former public protector Thuli Madonsela's direction that the president establish a commission of inquiry into state capture allegations.

Zuma is in the process of challenging the remedial action in court.

The DA argues that Madonsela's remedial action should be implemented - unless Zuma applies for a stay of execution‚ which he has not done.

Arguing in court on Tuesday for the DA‚ Anton Katz SC said Zuma has to obtain an order of court setting aside the remedial action.

Until such an order is obtained‚ the president is in violation of the law‚ Katz argued.

"In order to prevent his obligation to comply‚ he has to obtain a court order."

By saying that he does not need to comply with the remedial action until the review is finalised‚ the president is helping himself‚ Katz argued.

He contended that Zuma is in default of his constitutional obligation by not complying with the Public Protector's remedial action.

"The law as to when the president could have avoided establishing a commission of inquiry‚ has not arrived and he is in default‚” Katz argued.

The Public Protector‚ cited as the second respondent in the DA's application‚ argued that Zuma cannot take control over the functioning of the commission of inquiry into state capture allegations because he is personally implicated in the matter.

"Any involvement of the president in the aspects of the appointment and functioning of the commission that he seeks to retain through his review application would be in breach of Section 96 of the Constitution‚" Hamilton Maenetje SC argued.

In her remedial action Madonsela directed that a commission of inquiry into the allegations of state capture be conducted and that Chief Justice Mogoeng Mogoeng appoint the sole judge to preside over the commission.

Zuma is arguing that only the president can establish a judicial commission of inquiry‚ meaning that the Public Protector's directive is unconstitutional.

His counsel‚ Ishmael Semenya SC‚ told the court the remedial action was in breach of the separation of powers.

He argued that the Public Protector's remedial action "removes the president's discretion to appoint or not appoint a commission of inquiry".

"This offends against the doctrine of separation of powers and is‚ for this reason‚ unconstitutional."

He argued that the remedial action was not an appropriate remedy to address the conduct complained about in the state capture report.

"The Public Protector has not made any finding on maladministration.

"You cannot exercise the power the constitution says you have if you have not made any findings‚" Semenya argued.

Selfe said the DA had brought the application because the Public Protector's remedial action might take years to be implemented.

This was because "the president has a tendency to take matters on appeal".