President Jacob Zuma has filed a conditional counter-application against the Democratic Alliance's (DA's) case to force him to establish a Judicial Commission of Inquiry into allegations of state capture, despite his pending review application against the remedial actions recommended by the Public Protector.
Former Public Protector Thuli Madonsela recommended that Zuma appoint, within 30 days, a commission of inquiry headed by a judge selected by Chief Justice Mogoeng Mogoeng.
Madonsela also added that Mogoeng should provide Zuma with only one name.
Madonsela investigated allegations of undue influence by the Gupta family on the executive and state-owned entities, and had implicated several people, including Zuma and former Eskom boss Brian Molefe.
However, Zuma is challenging the remedial action, arguing that it overrides the president's constitutional powers to appoint a Judicial Commission of Inquiry, as well as the judge who would head it.
The DA approached the North Gauteng High Court in Pretoria to declare that Zuma had failed to comply with the Public Protector's remedial action.
The Presidency said in a statement that Zuma has filed an answering affidavit to oppose the DA's application.
The DA argued that the review proceedings do not suspend the implementation of the remedial action and that Zuma should have, instead, obtained a court order staying the enforcement of the remedial action.
However, Zuma disagrees.
"The legal advice obtained by the president is to the effect that he is in law not entitled to just comply with a report of the Public Protector if there are reasons to doubt its correctness. To do so will amount to a mechanical response; this is irreconcilable with the logic and rights exercisable by a person adversely affected by such a determination," presidential spokesperson Bongani Ngqulunga said.
Public Protector's remedial action
The main dispute between the DA and Zuma was whether the review application launched by the president has the effect of staying the remedial action by the Public Protector, Ngqulunga said.
He said the president was further advised that the implementation of the remedial action in the current form would render the review application academic in its entirety.
"The matter is set down for hearing on September 12 and 13, 2017. The issue for judicial determination is whether or not such a remedial action is stayed by a review application.
"The president has been advised to bring a conditional application so that the real dispute in the review application receives the full attention of the court and further delays are avoided," Ngqulunga said.
Zuma maintains that the legal challenge to the implementation of the remedial action is not made "mala fide".
He is asking that, should the court find that the implementation of the remedial action can only be stayed by a court order, he should be given time to obtain the order.
"It is for this reason that the president thought it apposite to bring a conditional counter-application," Ngqulunga said.