By Lehlohonolo Lehana.
The Constituional Court has reserved judgement in an urgent application brought by Jacob Zuma and his uMkhonto we Sizwe Party challenging President Cyril Ramaphosa over the decision to place Police Minister Senzo Mchunu on leave of absence.
Zuma and the MK Party are challenging the lawfulness of the President’s decision to place Mchunu on a leave of absence, the appointment of Professor Firoz Cachalia as the Acting Minister of Police as well as the decision to establish a Judicial Commission of Inquiry.
The inquiry was established to probe the allegations made by Lieutenant General Nhlanhla Mkhwanazi of collusion between organised crime syndicates and public office bearers, which implicates a number of people, including Mchunu.
Zuma and the MK Party, however, argue before the apex court that the said decisions are unlawful and irrational and that there is “no empowering provision for the President to place a Minister on leave of absence”.
Advocate Dali Mpofu appearing for Zuma and the MK Party said section 98 of the Constitution only allowed transferring duties between existing Cabinet members, while section 91(3)(c) allowed only permanent non-MP ministers, not interim appointments, making the acting appointment unconstitutional.
“There’s no such thing as placing a person on leave of absence. So, you can’t have power to do something that’s just senseless. Leave of absence, by definition, is something that you ask for. It’s not something that can be imposed on you, “said Mpofu.
“The problem with this President is that he wants to have his cake and eat it. Is it in the best interests of the people to have two police ministers, with one sitting at home while the other serves in an acting position?”
Also appearing for MK and Zuma, Advocate Anton Katz argued that the Constitution does not grant the President the power to suspend ministers or appoint acting ministers. He told the court that the only plausible reason for placing Mchunu on “special leave” was to allow him to retain his perks as an MP despite having no official responsibilities, something he said was constitutionally irrational.
“Why would he be given leave of absence without dismissal? The only rational reason is that he keeps his benefits.There is no other reason; he is not exercising any powers or functions, “said Katz.
Justice Rammaka Mathopo, however, pushed back, expressing concern that acting on allegations like those made by Mkhwanazi, could set a dangerous precedent.
Mkhwanazi made explosive allegations of criminal syndicates and political meddling in the police service, which a judicial commission of inquiry established by Ramaphosa and led by Acting Deputy Chief Justice Mbuyiseli Madlanga will probe.
“If the President were to act on allegations, I am just worried that we could be plunging this country into some sort of situation that is difficult to contemplate because if allegations were to be made by persons in the same calibre as Lieutenant Mkhwanazi, maybe against five or 10 Cabinet, ministers, it means on your construction they have to be either be reshuffled or sent home,” said Mathopo.
Katz replied: “You hit the nail on the head. Suggesting that if 10 Cabinet ministers were implicated by somebody in a similar or senior position to that of Mkhwanazi, it was clear they would be placed on special leave, potentially leading to 20 new individuals being appointed in acting roles.
“We would be in serious trouble if he [Ramaphosa] could do what he’s done — that is to suspend when there are allegations made every single time.”
Both Mpofu and advocate Mpati Qofa-Lebakeng, representing the MK party, criticised the financial burden of maintaining multiple ministers and establishing a commission of inquiry that could cost millions, if not billions, of taxpayers’ rands.
Ramaphosa’s lawyer, advocate Ngwako Maenetje, said it wasn’t that simple. The President had decided to put Mchunu on leave while the Madlanga commission looked into the allegations, which Mchunu had denied.
“The President says he is not in a position to decide, exercise the discretion to dismiss without those allegations being investigated. And we would submit that that need for investigation in that context is to enable the President to discharge that power to dismiss in a manner that is consistent with the Constitution,” said Maenetje.
Also acting on behalf of the President, advocate Kate Hofmeyr argued the matter should not have been brought before the Constitutional Court at all, but rather before the high court, the proper forum for such disputes under the Constitution.
Hofmeyr suggested that both the MK party and its leader, had failed to make a case for why the court had exclusive jurisdiction to hear their case, warning that allowing such a case at this level would open the floodgates for any dispute involving presidential powers to land at the apex court.
The MK party also attacked the legitimacy of the Madlanga commission, arguing that because Mkhwanazi’s allegations implicated the judiciary in corruption, it was inappropriate for a sitting judge to preside over the inquiry.
Justice Leona Theron asked why the party opposed a judge chairing the commission. Mpofu clarified that the party did not oppose the inquiry itself, only that it be led by a judicial officer.
Theron warned that the MK party risked a cost order because of unsubstantiated conspiracy claims in its court papers. Mpofu responded that Ramaphosa had addressed those allegations and had not requested a costs order himself.
Wrapping up the proceedings, Justice Nonkosi Mhlantla said the court reserved judgment.