ConCourt judgment reserved on legality of Ramaphosa’s actions in wake of Mkhwanazi allegations

President Cyril Ramaphosa is trying to “have his cake and eat it” by appointing Firoz Cachalia as acting minister while keeping his ally, Police Minister Senzo Mchunu, on special leave with full salary and benefits, the Constitutional Court heard on Wednesday.

The uMkhonto weSizwe (MK) party argues that Ramaphosa failed to meet his constitutional responsibilities by opting not to dismiss Mchunu outright, instead placing him on special leave, and appointing Firoz Cachalia, who is not a Cabinet member, as acting minister.

The official opposition in Parliament approached the court on an urgent basis, urging it to rule before Cachalia officially assumes the role on 1 August.

Advocate Dali Mpofu appearing for Jacob 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.

‘Just senseless’

“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.

Dangerous precedent

Justice Rammaka Mathopo, however, pushed back, expressing concern that acting on allegations like those made by the KZN Commissioner of Police, Lieutenant General Nhlanhla 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.

Read more: Timeline of commission of inquiry into Mkhwanazi’s allegations is ‘quite tight’, says Justice Madlanga

“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.”

Financial burden

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.

“We are saying that in an economy such as ours, there is no way that any rational decision would warrant the President to have in his own Cabinet three ministers of police. So the cost implication does not only limit itself to the minister of police’s portfolio,” said Qofa-Lebakeng.

“It also goes to the second leg of costs that are occasioned as a result of the establishment of the commission, and we are saying, just on that point alone, there is no way the cost can become justifiable when the President ought to have simply taken a decision.”

Not that simple

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, Jacob Zuma, 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.

National security

Justice Steven Majiedt challenged this, asking: “Why do you say this case doesn’t warrant direct access, given the fact that it goes to national security and that it implicates a wide range of actors, even the judiciary?”

Hofmeyr replied: “Justice, because many, many cases involve matters of grave constitutional significance, but our constitutional scheme says those start in the high court. The high court is where you go. The high court moves urgently, more easily than this court does.”

Mpofu was of a different view as he 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,” said the MK party.

Wrapping up the proceedings, Justice Nonkosi Mhlantla said the court reserved judgment.

“Colleagues, we need to consider this matter. We are aware of the time constraints; we are going to reserve our decision and we are going to notify the parties as soon as possible as to whatever decision we are going to take,” she said. DM