President Cyril Ramaphosa says former president Jacob Zuma wants to score political points against him in his legal challenge at the Constitutional Court against the decision to place police minister Senzo Mchunu on leave.
Zuma filed an urgent application to the apex court on July 18. He wants the court to immediately set aside Ramaphosa’s decision to place Mchunu on leave pending a probe on allegations he is linked to murder accused Vusimuzi “Cat” Matlala.
The court should also set aside the decision to establish a judicial commission of inquiry into alleged infiltration of the security cluster by a sophisticated criminal syndicate, Zuma says in court papers. He made the same prayer on the appointment of acting police minister Firoz Cachalia.
Ramaphosa set up a commission after KwaZulu-Natal police commissioner Lt-Gen Nhlanhla Mkhwanazi alleged police, prosecutors and judicial officers were part of a criminal syndicate controlled by drug cartels.
The apex court on Sunday directed parties to file papers by Tuesday. Ramaphosa did not meet the deadline.
Office of the state attorney’s Lungelo Gumede sent an apology to the court, saying it was impossible to meet the tight deadline and indicated the papers would be filed on Wednesday.
Ramaphosa’s legal team filed the answering affidavit on Wednesday, adding it was done under extreme time constraints.
The president urges the court in his affidavit to dismiss the application saying there is no substantial reason for direct access to the apex court.
“The constitution does not permit the applicants to bypass the high court on a matter that involves a challenge to the lawfulness of the exercise of decision-making powers, as opposed to a case involving my failure to exercise some constitutional duty,” he says.
Ramaphosa says the application is an attempt to score political points.
“The applicants ask this court to draw inferences of impropriety and favouritism where none exist. They do so in a transparent attempt to score political points against me,” he says.
Appointment
Zuma and the MK party initiated the case prematurely because the appointment of Cachalia has not yet been finalised and executed and the terms of reference for the commission have not been gazetted, Ramaphosa says.
The MK party in the 54-page application says no legal provision empowers Ramaphosa to place Mchunu on leave.
The president should have fired Mchunu instead, it argues.
Ramaphosa denies placing Mchunu on leave is unlawful. He says he can’t dismiss ministers based merely on allegations.
“I understand that section 91 gives me the power to dismiss ministers. My understanding is that this power of dismissal includes all the career incidents of ministers, and that I am afforded a wide berth as to how to deal with ministers,” the president says.
“This includes, among other powers, the power to place a minister on special leave or reshuffle the cabinet and assign a different portfolio to a minister,” he says.
Section 91 of the constitution does not make specific mention of special leave.
He says he could not appoint Mchunu to a different department because the allegations against him are serious.
The MK party said Cachalia’s appointment was a violation of section 98 of the constitution which deals with temporary assignment of functions.
The section reads: “The president may assign to a cabinet member any power or function of another member who is absent from office or is unable to exercise that power or perform that function.”
Cachalia is neither a cabinet member nor an MP.
The president appointed Cachalia as an acting minister relying on a section of the constitution that stipulates that he may select no more than two ministers from outside parliament.
The legal challenge has sparked debate whether Ramaphosa was confined to section 98 in appointing Cachalia.
Legally sound
The president says Cachalia’s appointment is legally sound.
“I am entitled to appoint a minister from outside the National Assembly in terms of section 91 (3) (c) of the constitution,” he says.
Ramaphosa also rejected the argument the commission could run for years, contending it will last six months.
The MK party also argues that no judge should preside over the commission of inquiry because Mkhwanazi alleged some members of the judiciary were implicated.
The commission will be chaired by acting deputy chief justice Mbuyiseli Madlanga.
Ramaphosa rejects the arguments as being without grounds.
“The assertion by the applicants that justice Madlanga would essentially be investigating himself is far-fetched and baseless,” he says.
“There is no suggestion by Lt-Gen Mkhwanazi of any impropriety at the level of the justices at the Constitutional Court. The allegations implicating the judiciary all pertain to criminal proceedings.”
Ramaphosa defends the commission of inquiry saying the members are not compromised. He says he appointed Madlanga after being advised by chief justice Mandisa Maya.
“The applicants also suggest the establishment of a commission would be a waste of resources, citing the Zondo commission. The applicant’s criticism is misplaced,” he says adding that assets valued at R10bn have been recovered after the Zondo commission.
The Zondo commission cost the state R1bn.
“In the circumstances, I deny the decision to establish a commission is irrational or reviewable on any other basis.”
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