President Jacob Zuma's bid to set aside the recommendations of former Public Protector Thuli Madonsela's State of Capture report has failed.
The High Court in Pretoria ruled on Wednesday that the president's application be dismissed and that Madonsela's remedial action remain binding.
Judge-president Dunstan Mlambo also ordered that Zuma pay the costs of the application in his own capacity.
The court found that Zuma was "ill-advised and reckless" in launching a challenge against the remedial action.
Zuma must now appoint a commission of inquiry into state capture within 30 days, and the judge presiding over the probe will be appointed by Chief Justice Mogoeng Mogoeng.
BREAKING: Remedial action is binding, President Zuma must establish commission within 30 days. Judge must be chosen by Chief Justice. Application dismissed with costs.— HuffPost SouthAfrica (@HuffPostSA) December 13, 2017ADVERTISEMENT
Earlier this year, Zuma filed an application with the High Court to have Madonsela's report reviewed and set aside. He argued that her remedial actions encroached on the powers of the executive.
Madonsela said her office did not have the resources to finish the investigation into state capture and recommended a judicial inquiry be set up –– one which was to be appointed by Zuma. But the judge who would preside over the commission, she recommended, should be appointed by Chief Justice Mogoeng Mogoeng.
Mlambo said the rationale that underpins Madonsela's direction that a judge be appointed by the chief justice is clear. He said Madonsela foresaw that the credibility of the inquiry would be compromised if the president were to appoint the judge.
"The president is implicated in the state capture report and is at the centre of the Gupta's family involvement... Any person chosen by the president would therefore not be perceived as independent... The president's insistence that he alone selects a judge is at odds with the legal principle of recusal," Mlambo said.
"The arc of the moral universe is long but it bends toward justice" Martin Luther King Jr quoting Theodore Parker— Adv Thuli Madonsela (@ThuliMadonsela3) December 13, 2017
He said there is no reason why the recusal principle should not apply to the president, and that the chief justice was a "perfectly acceptable and rational choice" to appoint the judge.
Mlambo said the primary question raised was whether the president's constitutional powers to appoint a commission of inquiry could be limited by the public protector's remedial action.
He said the power to appoint commissions vests in the president alone, and only he can exercise that power; but there are constraints to the exercise of this power.
"Powers accorded to the president cannot be viewed in isolation. Account must be paid to the structure and design of the constitution," he said.
"Even though constitution invests power (in the president)... it is not an untrammeled one."
Mlambo said the public protector's remedial action taken in a particular case depends on the nature of the investigations in each case and the findings thereof.
He said Madonsela had the power to determine the appropriate remedy and prescribe the manner of its implementation.
"Remedial action is context-specific. The public protector must, if she is to properly fulfil her constitutional mandate, have the power to direct the president to implement a commission of inquiry," the judge said.
Therefore, the court found that the primary grounds of review –– that it is unlawful for the public protector to instruct Zuma to appoint a commission –– "is without merit and must be rejected".
"The president's argument that she (Madonsela) did not find prima facie evidence is groundless... There is compelling prima facie evidence that the relationship between the president and the Gupta family had evolved into state capture," Mlambo said.
Earlier on Wednesday, Mlambo ordered that Zuma personally pay the costs of his failed attempt to stop the report. He said the president had acted in "flagrant disregard of the duties of the public protector".
The DA has already said that it estimates the costs of the party's legal team alone in this matter to be approximately R1.5-million.