President Jacob Zuma has violated the Constitution again, the Democratic Alliance (DA) will tell the high court in Pretoria in a hearing scheduled for Tuesday and Wednesday, and he should be forced to launch a commission of inquiry into state capture.
He cannot launch a state capture commission because it was unlawful for former Public Protector Thuli Madonsela to order him to do so, Zuma will respond, and he cannot implement remedial action that is unlawful.
In written representations ahead of this week’s hearing, the legal teams for both sides stress just how simple the question before the court is, in light of Madonsela’s 2016 direction that Zuma must establish an inquiry to delve into the Gupta family’s apparent hold on the state, for which he had a deadline of December 1.
There is only one question for the court to determine, the DA contends: does Zuma’s still-pending application to review and overturn Madonsela’s state capture report absolve him of the responsibility to act on it in the meanwhile? The DA’s answer is equally simple.
“If the President wishes to avoid complying with the report, his only option is to obtain a court order to that effect. He has not done so. Therefore, he must comply,” says the opposition party’s legal team.
Zuma’s position is equally simple, his legal team countered. Remedial action ordered by the Public Protector is generally binding, but in this case is “not only unconstitutional but unenforceable”.
Madonsela overreached her powers, Zuma contends, by ordering him to establish a commission without applying his discretion in doing so. If “a third party” were to go to court to challenge him for establishing such a commission, his legal team said, it would be found irrational because he had acted “at the dictate of another”.
However, for all the apparent simplicity of the arguments, the filings by the two legal teams suggest each side will support its positions with a long list of highly technical arguments. The legal teams rely on many of the same precedent-setting cases, but interpret those cases in dramatically different fashion.
The DA has also indicated that it will argue that Zuma has not put up a defence to its contention that he chose not to approach a court to interdict the effect of Madonsela’s report, and so remains obliged to do as she ordered. Zuma, meanwhile, has indicated that he will argue that the DA’s case is not urgent, and should be dismissed.
“A President acting in good faith in the interests of the country (let alone his own interest in exonerating himself and other members of the Cabinet) would surely welcome the possibility of clearing the dark cloud of state capture hanging over them, said DA federal chair James Selfe in one of the affidavits in the matter. And Zuma’s failure to do so “raises serious questions about his motivations.”
“A President, or anyone else for that matter, is in law, not entitled to just comply with a report of the public protector if there are reasons to doubt its correctness,” Zuma’s legal team said in written argument. And ordering him to do so would be unconstitutional.
Both parties have suggested that they are likely to turn to the Constitutional Court should the high court rule against them.