President Jacob Zuma is “helping himself” by not speedily appointing the judicial commission of inquiry to probe State capture as recommend by former Public Protector Thuli Madonsela, the High Court in Pretoria heard on Tuesday.

“That the president [Zuma] has brought his review [application] is not good enough. We submit that what the president is doing in this case, by saying that I have brought the review and therefore I don’t have to comply until my review is finalised, amounts to a licence to self-help. He is helping himself by saying I am reviewing the remedial action and courts have previously said that’s not how it works,” Advocate Anton Katz SC, for the Democratic Alliance (DA), argued.

“Until there is an order of court in place – suspending, setting aside or dealing with it [the Public Protector report] in any way – the president is disregarding the Public Protector’s remedial action willy-nilly in violation of the rule of law. What he is doing amounts to self-help.”

High Court Judge Motsamai Makume was hearing Zuma’s counter-application against the DA’s case to force him to establish the Judicial Commission of Inquiry into allegations of State capture.

In October last year, the then Public Protector Thuli Madonsela recommended that Zuma appoint a commission of inquiry headed by a judge.

The DA approached the court, requesting it to declare that Zuma had failed to comply with the Public Protector’s remedial action.

Zuma has taken Madonsela’s “State of Capture” report, which shed light notably on Eskom’s dealings with the Gupta family, on review because he differs with her directive that a commission of inquiry, headed by a judge appointed by Chief Justice Mogoeng Mogoeng, be appointed to further probe the funnelling of state resources to politically connected businessmen.

Madonsela had given Zuma 30 days to appoint the commission of inquiry, and the DA has gone to court to force him to implement the remedial action. But the president argues that the Constitution gives him alone the right to appoint the head of a judicial commission of inquiry.

Katz argued that Madonsela’s remedial action must be implemented without fail.

“As we are sitting here today, since the 2nd of December 2016 [when the 30 days lapsed], the remedial action remains valid. It’s valid as we are sitting here today, and the president is in violation of that valid administrative action. He will continue to do so until either he complies, which is what we are asking the court to order him to do, or if they are set aside,” said Katz. 

In June, Zuma responded to the DA’s court application with a counter application for a stay on implementing Madonsela’s report pending the outcome of the review, if necessary.

In his arguments for a review, Zuma states that he was not compelled to comply with a report of the Public Protector if he had cause to doubt its correctness.