President Jacob Zuma has today, 12 June 2017, filed a conditional counter application in the “State of Capture” matter brought to the court by the official opposition party Democratic Alliance (DA) who accuses the President of failing to comply with the remedial action taken against him.
Mmusi Maimane’s party brought an application in the Gauteng High Court, Pretoria seeking that it be declared that the President has failed to comply with the remedial action taken against him as set out in paragraph 8.4 by the Public Protector’s report entitled “State of Capture”.
Further, the party seeks an order compelling President Zuma to comply with the remedial action.
DA contends, amongst others, that the institution of the review proceedings by the President does not stay or suspend the implementation of the remedial action but that, in addition to the review proceedings, the President should have obtained a court order staying the enforcement of the remedial action.
Zuma has filed an answering affidavit in which he is resisting the relief sought by the opposition.
The main dispute between the DA and the President is whether the review application launched by the President has the effect of staying the remedial action by the Public Protector.
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.
Absent a review application, the President is not entitled to simply ignore the findings, decisions or remedial action taken by the Public Protector.
The President was further advised that the implementation of the remedial action in the current form would render academic the review application in its entirety.
The matter is set down for hearing on 12 and 13 September 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.
This conditional application was foreshadowed in the President’s answering affidavit. In paragraph 11.5.6 of the answering affidavit the President stated that the legal challenge to the implementation of the remedial action is not made mala fide.
Should the Court hold that the implementation of the remedial action can only be stayed by a court order, the President asked that an appropriate relief would be to afford him an opportunity to obtain such court order, within a time stipulated by the Court and for the review to take its course. It is for this reason that the President thought it apposite to bring a conditional counter-application.
The conditional counter-application is only necessary if the Court finds that a stay of the implementation of paragraph 8.4 of the remedial action as provided in the Public Protector’s report is required.