The High Court in Pretoria has dismissed the Democratic Alliance’s (DA) urgent interdict application to force President Jacob Zuma to immediately implement the remedial action recommended by former public protector Thuli Madonsela in her “State of Capture” report.
The president has attacked the remedial action as unconstitutional, dictatorial, offending the separation of powers doctrine and intruding into the sphere of his exclusive executive powers to appoint commissions of inquiry.
Judge Motsami Makume ruled that it would not be in interests of justice for the court to order the president to immediately implement the remedial action in the State of Capture report, as Zuma had lodged an application to review the report.
The review application will be heard in the High Court in Pretoria on 23 October.
Advocate Thuli Madonsela ordered last year that, within 30 days, Zuma must establish a judicial commission of inquiry led by a judge appointed by the chief justice – but the president took her remedial action on review as he wants to be the one to appoint the judge.
In his court application, he argues the remedial action undermines the president’s constitutional authority to institute commissions of inquiry.
Judge Makume said it would not be in the interest of justice to grant the order sought by the DA because once the president had appointed such a commission or even before he did so, he would be entitled to challenge the decision compelling him to do so.
He said this would result in parallel procedures based on the same issues and would in his view not only be a waste of resources but could very well amount to an abuse of the legal process.
“The review application raises important legal and constitutional issues and is a matter of great public interest on which this court still has to pronounce itself.
“… To compel the president at this stage will not only be tantamount to denying him a hearing or his day in court but it may also be understood to mean that the public protector’s powers are unassailable, irrespective of the content of her decision. That cannot be correct,” he said.
He criticised the DA for being “technical” by insisting that the president should have applied for an application to stay the remedial action before his review, saying the result of an earlier interdict and a stay at this stage would be the same.
The judge said the DA could also not give him a clear answer as to what would happen to the commission if the court review set aside the remedial action.
”The commission may have incurred expenses in setting up offices, issued subpoenas to witnesses and called for written submissions. In my view it will not be in the interest of justice at this stage to compel the president to implement the remedial action.
“…The applicant has failed to demonstrate what prejudice or harm would befall it if the president does not appoint a commission of enquiry now 10 months after the report by the Public Protector.
“Nothing has happened in the last 10 months. It will therefore not make any difference if the commission is appointed after the review shall have been heard, should the president fail in his application to set aside the remedial action,” he said.
The DA’s James Selfe denied that the ruling meant they had lost the battle and said they would be back in court next month to defend the president’s review bid.
– Additional reporting by African News Agency
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