By Lehlohonolo Lehana.
Constitutional Court denies Jacob Zuma and his MK Party direct access in its bid to set aside president Cyril Ramaphosa’s decision to place minister of police Senzo Mchunu on special leave.
The MK Party approached the court on an urgent basis to set aside the president’s decision to place Mchunu on special leave and to appoint an acting police minister Firoz Cachalia.
The president’s appointment of Cachalia, who at the time was not a member of the cabinet, as acting police minister triggered a backlash from the MK party, which claims the move is unconstitutional.
Early this month, Ramaphosa put Mchunu on special leave pending the outcome of an inquiry chaired by Acting Deputy Chief Justice Mbuyiseli Madlanga into allegations against the minister — made by KwaZulu-Natal police commissioner Nhlanhla Mkhwanazi — that he colluded with criminal syndicates and interfered in sensitive police investigations.
Ramaphosa’s legal team argued on Wednesday, that the case was in the wrong jurisdiction and should be sent to the high court.
Kate Hofmeyr SC, representing the president, said the applicants had failed to make a compelling case for either exclusive jurisdiction or direct access to the apex court.
“This is such an important issue, and they devoted two paragraphs to it,” Hofmeyr said, referring to the applicants’ founding affidavit.
“If this court in this judgment widens its jurisdictional ambit to take this case, it will likely mean that all powers that are granted to the president under the Constitution will come here and only here as this court of first and final instance. And that would make a mockery of the prior jurisprudence of this court.
The case raised constitutional questions about the scope of presidential powers, the legitimacy of judicial inquiries and whether the country’s highest court is the right forum for such matters.
The MK party, represented by Anton Katz SC, and Zuma’s representative, Dali Mpofu SC, argued that the case could take years before it was adjudicated in the high court, warning that by then, “there would be no country left”.
In its heads of argument the party maintained that the court was well within its right to preside over the matter.
“This application falls squarely within the exclusive jurisdiction of this court. The applicants allege the President has failed to fulfil his constitutional obligation to uphold, defend and respect the constitution as the supreme law of SA, argued Katz.
Justice Steven Mathopo handed down the order: “The application does not engage the court’s jurisdiction and no case has been made out for direct access. The following order has been made. Direct access has been refused. Costs are reserved.”
Mathopo said the reasons would be handed down at a later stage.
While the commission’s terms of reference were published last week, Madlanga said the rules of the commission would be published in due course.
Madlanga will be assisted by advocate Sesi Baloyi SC and advocate Sandile Khumalo SC as co-commissioners.
Advocate Terry Motau SC will be the commission’s chief evidence leader. Other evidence leaders include advocates Adila Hassim, Matthew Chaskalson, Mahlape Sello SC, Lee Segeels-Ncube, Ofentse Motlhasedi and Thabang Pooe.
The commission’s chief investigator is Dr Peter Goss, Dr Nolitha Vukuza is the commission secretary, and its head of communications is Jeremy Michaels.