Remedial action infringes on separation of powers: Zuma

The Public Protector's remedial action directing President Jacob Zuma to establish a commission of inquiry into state capture allegations‚ is in breach of separation of powers‚ the president’s lawyers argued on Tuesday.

"The remedial action instructs the president (a member of the executive) to appoint a commission of inquiry. The remedial action to that extent‚ offends against the separation of powers doctrine which is part of the rule of law‚" Ishmael Semenya SC argued on behalf of the president.

Zuma is opposing the Democratic Alliance's application before the Pretoria High Court asking it to declare that he failed to comply with former public protector Thuli Madonsela’s findings because he did not apply for a stay of execution before he took the remedial action on judicial review.

The Public Protector is the second respondent in the application.

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 this is unconstitutional because only the president can establish a judicial commission of inquiry.

Semenya told the court 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.

He contended that there is merit in the president's challenge of the remedial action.