The High Court in Pretoria has granted President Jacob Zuma a stay in immediately implementing a judicial commission of inquiry as recommended in the Public Protector's State of Capture report.

This is until his application for a review of that remedial action recommended by the report is heard in October.

"It’s not in the interest of justice to compel the president to implement the remedial action," Judge Motsamai Makume said on Friday morning.

He stated that it would be a waste of resources and court processes since the review application was set to be heard next month.

"[The] applicant has failed to demonstrate the prejudice or harm... [if the] president fails to establish the commission of inquiry as per the report released ten months ago.”

The Democratic Alliance (DA) and the Public Protector were ordered to pay costs of the application.

DA federal council chairperson James Selfe said after the ruling that the party would like the review application to be heard as soon as possible "so we can get to the bottom of what happened... and establish the commission of inquiry".

He said the DA did not technically lose the case as the judge ordered a stay on its application, which effectively meant that if the review was heard and dismissed, then the DA application automatically comes into effect.

"[This means] that the president will automatically have to establish the commission," said Selfe.

Recommendation 

In her report, then Public Protector Thuli Madonsela recommended that Zuma establish a commission of inquiry into state capture and that Chief Justice Mogoeng Mogoeng choose a judge to preside over it. The report looked into whether Zuma's friends, the controversial Gupta family, had undue influence on the executive.

The crux of Zuma's argument against implementing the remedial action of the report was that it would be unconstitutional to do so.

Advocate Ishmael Semenya, for Zuma, previously argued in court that the public protector "does not enjoy the power under the Constitution of telling Zuma to establish an inquiry and [saying] that the Chief Justice will appoint the judge [for the inquiry]".

"That's why the president has consistently and persistently said the remedial action is unconstitutional and will not implement it but take it on review," Semenya said.

The DA argued that Zuma should establish the commission as he is bound to do so by virtue of the Constitution. The DA additionally wanted the court to make declaratory orders that the president acted unconstitutional by not establishing the commission within 30 days. 

Advocate Anton Katz, for the applicants, questioned why Zuma had a problem with the Chief Justice appointing the judge, and whether he did not trust the wisdom and decisions of the Chief Justice.

He said that Zuma was basically seeking a stay against his own compliance with remedial action recommended by the public protector.

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 of that office.