Zuma takes Ramaphosa to court again

The uMkhonto weSizwe (MK) Party will challenge President Cyril Ramaphosa’s appointment of acting Police Minister Firoz Cachalia in the Gauteng High Court on Tuesday, 26 August.

It will also challenge the President’s establishment of a commission of inquiry into allegations of a capture of the criminal justice system. The MK Party sees both as legal and procedural violations.

This follows former-President Jacob Zuma’s party bringing the matter before the Constitutional Court a day before Cachalia’s appointment, represented by senior counsel (SC) Anton Katz and Dali Mpofu (SC).

However, the apex court dismissed the case as it did not fall within its jurisdiction because the party did not have direct access.

Instead, it suggested the political party start its legal challenge in the High Court.

After KZN Lieutenant General Nhlanhla Mkhwanazi made several allegations that a criminal syndicate had captured South Africa’s law enforcement and intelligence structures, Ramaphosa announced a commission of inquiry to investigate the claims.

The President appointed former Deputy Chief Justice Mbuyisile Madlanga to lead the investigation.

The allegations also implicated then-Police Minister Senzo Mchunu, with Mkhwanazi claiming that he had colluded with criminals to disband the Political Killings Task Team, something he outright denied.

As a result, Mchunu was placed on a special leave of absence pending the investigations, with Ramaphosa announcing that Firoz Cachalia would replace him as acting Minister.

However, this meant South Africa would technically have two Ministers assigned to the Police portfolio. 

After Cachalia was sworn in on 1 August, Ramaphosa said he was aware of the issue and would soon address it.

“I know there is a technicality about seeming to have two Ministers in the same portfolio, and that is a matter I do believe is going to be resolved within a short space of time,” Ramaphosa said  

The day before, in its challenge in the Constitutional Court, the MK Party argued that while the President can appoint or dismiss ministers, this does not extend to suspending them or assigning their duties to individuals not in the cabinet.

“The president cannot assign the powers or functions of Minister Mchunu to a non-member of the cabinet. The appointment of Cachalia is ultra vires the Constitution,” argued Mpofu.

“Our submission is that the president will always have the discretion to dismiss or not to dismiss. But there is no power for the president to suspend ministers in the Constitution,” Katz added.

In response to the MK Party’s case, the President’s legal team, led by Kate Hofmeyer SC, argued that the case was brought to the wrong forum and should have been filed in the High Court.

Hofmeyer also argued that the applicants failed to justify why the Constitutional Court should hear the matter directly or claim exclusive jurisdiction.

“This is such an important issue, and they devoted two paragraphs to it,” Hofmeyr remarked, referencing the applicants’ founding affidavit.

She warned that if the court accepted the case, it could open the door to every presidential power challenge being brought directly to the apex court, which “would make a mockery of the prior jurisprudence of this court.”