By Lehlohonolo Lehana.
Judgement has been reserved in the uMkhonto we Sizwe party’s bid to revive their legal challenge against the decision to place Police Minister Senzo Mchunu on a leave of absence and to interdict the Madlanga Commission on Inquiry.
In turning to the court on Thursday in an urgent bid, among others, to interdict the commission, the applicants say it is not about challenging the decision to set up an inquiry per se. It is about the decision to set up a judicial commission of inquiry in the present circumstance where the subject matter of the inquiry includes serious allegations of criminality against unnamed members of the judiciary.
The party argues that the functions of the commission will usurp the powers that are constitutionally and exclusively conferred on both the Judicial Services Commission (JSC) and the Magistrates Commission.
The judiciary cannot be both an accused institution and also the investigating institution via one of its members – Judge Mbuyiseli Madlanga – the applicants said in papers before the court.
During the proceedings, advocate Dali Mpofu for MK party, has accused President Cyril Ramaphosa of going beyond his powers by placing Mchunu on a leave of absence.
He argued that Ramaphosa had no right to force leave on Mchunu, calling it a sneaky way to sidestep proper steps like a formal suspension.
Mpofu said that as a president who has the sole prerogative when it comes to appointments to the executive, Ramaphosa didn’t need to have reasons to fire Mchunu.
Mpofu further contended that the appointment of Cachalia, who is not a member of the current Cabinet, violated section 98 of the Constitution, which limits acting ministerial appointments to existing Cabinet members. “You cannot smuggle someone in through the back door,” he said, describing the move as “irrational and unlawful”.
The MK Party wants Ramaphosa’s decisions declared unconstitutional, insisting that the inquiry and ministerial appointment violate fundamental legal principles.
Lawyers for Ramaphosa argued he acted within his rights. Advocate Ngwako Maenetje said the Constitution gives the president wide powers to run the executive, including putting ministers on leave for probes.
Maenetje pushed back saying special leave in this context is a tool for president to use when needed. For Cachalia’s appointment, he argued the Constitution allows outsiders if they meet criteria, filling gaps without grinding things to a halt.
The ruling will determine whether the court can proceed to hear the merits of the case without delay, setting the stage for yet another high political and legal clash.