Opposition political parties Wednesday morning asked the high court in Pretoria to give President Jacob Zuma two weeks to set up a commission of inquiry into state capture – the very thing Zuma is in court to prevent.
In terms of a draft order presented to the court by advocate Dali Mpofu, the court would declare that Zuma had failed the Constitution by not already setting up such an inquiry. It would give the chief justice five days to name a judge to head up the inquiry, after which Zuma would have 15 days to establish the commission.
That commission would then have a maximum of six months to complete a report.
The commission would have, at a minimum, the power to compel testimony and conduct search-and-seizure raids.
Mpofu acts for the UDM and Cope, which have aligned themselves with the EFF in their opposition against Zuma’s efforts.
“Given the wide powers of the court we want to ask for relief that would vindicate and protect the rights of the public,” Mpofu told the court.
The draft order also directs Zuma to pay the costs of the litigation out of his own pocket.
Zuma has argued that then public protector Thuli Madonsela could not lawfully have ordered him to set up a commission of inquiry and that he can not be “dictated” to on how such a commission should be established.
But Mpofu again argued that not only was Zuma’s legal position incorrect and untenable, but that the vast importance of state capture required unusual action.
If the Gupta family had indeed known about cabinet appointments before they happened, Mpofu said, that would be “basically, politically and constitutionally, the end of the world. Because at the point at which a private entity that has a business interest that involves the president’s son and his admitted friend starts to appoint Cabinet ministers, we can kiss democracy goodbye”.
Advocate Steven Budlender, for the DA, told the court that it would be “hobbling the public protector” if it were to do as Zuma asks, and find that he could not be compelled to establish a commission of inquiry. Zuma’s argument amounted to saying the public protector could never compel him to take action, said Budlender – even though that is her job.
Budlender also reinforced previous arguments that Zuma simply could not be allowed to select the judge to head a state capture commission due to investigate allegations centred on himself.
The judge appointed to head up the inquiry faces “a momentous task” said advocate Michelle le Roux on behalf of Council for the Advancement of the South African Constitution (Casac).
The approach adopted by Madonsela in her State of Capture report was the only appropriate way, said Le Roux, to return South Africa to “where we were before this plague befell”.