The crux of President Jacob Zuma's argument against implementing the remedial action of the Public Protector's State of Capture report is that it would be unconstitutional to do so.

On Tuesday Advocate Ishmael Semenya SC, for Zuma said in the High Court in Pretoria that the Public Protector "does not enjoy the power under the Constitution of telling Zuma to establish an inquiry and that the Chief Justice will appoint the judge".

"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.

Zuma was responding to the Democratic Alliance's (DA's) application for an order that he adhere to the Public Protector's remedial actions, establish a commission of inquiry and allow the Chief Justice to appoint a judge for the inquiry.

The DA is also seeking a declaratory order that Zuma's conduct in delaying the establishment of the commission is unconstitutional.

Zuma also launched a counter application for the court to grant him a stay in implementing the commission, until his application for a review of the remedial action (in the hope that the report is set aside) is heard. The review will be heard in October.

"There is no basis to approach the court for an application; the president has the power under the Constitution to appoint a judge to a commission," Semenya argued.

DA application 'dictation of the worst kind'

He said this was enough to throw out the DA's application and that the constitutional power to appoint the judge in a commission is reserved for the president alone.

In her State of Capture report former Public Protector Thuli Madonsela recommended that Zuma establish a commission of inquiry and that Chief Justice Mogoeng Mogoeng choose a judge to preside over it.

Madonsela made the recommendation in her report on investigations into whether Zuma's friends, the controversial Gupta family, had undue influence on the executive.

Semenya said asking for an order that Zuma establish a commission was "dictation of the worst kind" on the part of the DA.

Semenya also made the submission that the Public Protector's office does sometimes get it wrong and cited the office's remedial actions in the report on the South African Reserve Bank, released by current Public Protector Busisiwe Mkhwebane, that the National Assembly must amend the Constitution.

He also said that there was no basis for the court to make a declaratory order stating that the president had acted unconstitutionally as the Constitutional Court had already made such an order.

Establishing inquiry is Zuma's 'presidential duty'

Advocate Anton Katz SC, for the DA, countered that argument, saying that a court can make as many declaratory orders for unconstitutionality as necessary in conjunction with the amount of times that the president acts unconstitutionally.

Earlier, Katz asked 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 former Public Protector Madonsela.

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 the office of the Public Protector.

Katz also asked what dark secrets, if any, may come out if the commission went ahead.

Advocate Hamilton Maenetje, representing the Public Protector, who was opposing the counter application, said if Zuma was unable to establish a commission of inquiry, he was not doing his presidential duty.

Judge Motsamai Makume said all parties made good submissions and he would now have to carefully consider all the submissions made. Judgment was reserved.