ConCourt reserves judgment in MK Party’s case against Ramaphosa

South Africa’s Constitutional Court has reserved judgment in the urgent application brought by the uMkhonto weSizwe (MK) party and its leader, Jacob Zuma.

The party is challenging President Cyril Ramaphosa’s decision to put Police Minister Senzo Mchunu on garden leave, appoint Firoz Cachalia as acting minister, and the establishment of a judicial commission of inquiry.

The decisions followed KwaZulu-Natal Police Commissioner Lieutenant General Nhlanhla Mkhwanazi’s bombshell allegations of corruption and criminal capture in the police, judiciary, metro police, and correctional services.

Ramaphosa placed Mchunu on special leave pending an investigation led by Acting Deputy Chief Justice Mbuyiseli Madlanga.

The inquiry includes probing allegations that Mchunu colluded with criminal groups and meddled in delicate police cases.

The decision to appoint Cachalia as acting police minister, despite him not being a cabinet member, provoked criticism from the MK party, who argue that the appointment is against the law.

The top court heard arguments on Wednesday, 31 July, with the MK Party seeking to declare the President’s actions unconstitutional.

The MK party, represented by senior counsel Anton Katz, and Jacob Zuma’s legal representative, Dali Mpofu SC, contended that Ramaphosa exceeded his constitutional authority.

They acknowledged that while the president holds the power to appoint or dismiss ministers, they argued that this does not extend to suspending them or assigning their responsibilities to individuals outside the cabinet.

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

Katz echoed Mpofu’s argument, saying that the Constitution does not empower the president to suspend ministers.

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

The MK party also challenged the credibility of the inquiry commission, contending that since Mkhwanazi’s claims involved corruption within the judiciary, it was unsuitable for a current judge to oversee the investigation.

Justice Leona Theron asked why the party opposed a judge chairing the commission, while Mpofu said that it be led by a judicial officer.

Counter arguments

Ramaphosa’s legal team argued that the case was brought to the wrong forum and should have been filed in the high court.

Representing the president, Kate Hofmeyr SC said 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.”

Hofmeyr insisted that the Constitution requires such disputes to begin in the high court, which is better equipped to handle urgent matters.

However, Mpofu argued that the matter was of “utmost public importance”, citing protests and financial implications, including the cost of the commission and the confusion of having “two police ministers”.

Justice Rammaka Mathopo questioned whether dismissing the case on technical grounds risked judicial abdication, but Hofmeyr said it would preserve the court’s jurisdiction.

If the case were dismissed, she said, “he [Cachalia] will take office and the Madlanga inquiry will continue … Forum shopping cannot be rewarded.”

Justice Steven Majiedt asked whether the national security and judicial concerns warranted bypassing the high court.

“Why doesn’t this case warrant direct access,” he asked, “given that it goes to national security and implicates the judiciary?”

Defending the appointment of Cachalia, Ramaphosa’s senior counsel Ngwako Maenetje SC described him as a qualified former MP and legal expert.

“The president says he is not in a position to exercise the discretion to dismiss without those allegations being investigated,” he said.

Meanwhile, Advocate Griffiths Madonsela, arguing for Mchunu, described Mchunu as being “ambushed” by Mkhwanazi’s accusations and said the MKP’s response to these allegations was to “crucify him”.