President Cyril Ramaphosa did not extend a favour to an ANC comrade when he placed police minister Senzo Mchunu on leave instead of firing him, but took a legally sound decision.
This is the argument Mchunu himself has put before the Constitutional Court, as former president Jacob Zuma and the MK party argue that he should have been fired.
The embattled minister filed his court papers on Wednesday opposing the application to have his leave ruled unlawful.
Zuma and MK party’s founding application was penned by the party’s deputy president, John Hlophe. In the papers, the party says there is no legal provision that empowers Ramaphosa to place Mchunu on leave, adding that the president should have instead fired the minister.
Ramaphosa placed Mchunu on leave pending a probe of allegations that he was linked to murder accused Vusimuzi “Cat” Matlala.
Lt-Gen Nhlanhla Mkhwanazi made the allegations, saying Mchunu disbanded the KwaZulu-Natal political killings task team as it was closer to exposing suspects linked to high-profile killings.
MK says the president did Mchunu a favour by not firing him, and in essence misused his powers. Mchunu is Ramaphosa's close ally and was his secretary-general candidate in the 2017 ANC conference, which saw Ramaphosa beat Nkosazana Dlamini-Zuma in the presidential race, MK argued.
“As the police minister, Mchunu recently announced the bizarre decision that the police documents pertaining to the president’s pending and well-known Phala Phala scandal … also be classified and sealed, just like CR17 records. This points to the reciprocal favours that are being exchanged between Mchunu and the president,” the party says.
Mchunu says the Phala Phala issue was not raised by Mkhwanazi, but MK party wanted to introduce “unrelated” matters in the litigation.
“To make myself clear, I did not classify and or seal the so-called Phala Phala report. The report was classified by the executive MD of Ipid, Dikeledi Ntlatseng in the exercise of her discretion as authorised by law,” he says.
Ipid’s decision dominated the headlines in March and Mchunu said there was no political pressure for the report to be classified. In February 2020, millions of dollars were stolen from Ramaphosa’s Phala Phala game farm in Limpopo.
Mchunu also dismissed MK party’s main case that Ramaphosa had no legal provision to place him on leave.
“It would be absurd to suggest that the wide powers of the president to appoint cabinet ministers and to dismiss them any time … suddenly excludes the power to do something drastic, which is to place a minister on suspension or special leave pending an outcome into serious allegations,” he says.
Ramaphosa placed Mchunu on leave based on section 91 of the constitution. The provision does not make specific mention of special leave but gives the president the power to appoint and dismiss ministers.
Ramaphosa said he could not fire Mchunu merely based on allegations. The ANC's step-aside rule is also not applicable in his case, Mchunu says.
“The ANC’s step-aside rule applies only to persons who have been formally charged in a court of law. I have not been formally charged in a criminal court based on the allegations by Lt-Gen Mkhwanazi. There is no charge sheet or indictment against me.”
The minister contends Ramaphosa’s placing him on leave is a legally sound decision.
The MK party says Ramaphosa acted in a biased manner by not firing Mchunu after he fired deputy trade, industry and competition minister Andrew Whitfield for a “relatively minor transgression”.
Mchunu “lied” to parliament about his relationship with Brown Mogotsi, who allegedly enjoyed financial favours from Matlala, the party contends.
Mchunu says he did not misled parliament when asked about his relationship with Mogotsi, saying he was not an associate of his and later in a statement said he knew of him as a “comrade”. He says there is a difference between an associate and a comrade.
Mkhwanazi alleged that on the confiscated phone in prison belonging to Matlala, police found a trail of messages between the murder accused and Mogotsi.
Mchunu said the comparison with Whitfield was baseless. The DA deputy minister was fired after travelling to the US without the president’s approval.
“Whitfield’s case and mine differ toto caelo [completely],” he said, adding that Whitfield admitted to breaking the rules.
“I have denied the allegations made by Lt-Gen Mkhwanazi against me during his sensational press conference. I have not admitted any wrongdoing and have not been given a fair opportunity to have Mr Mkhwanazi’s allegations tested. In these circumstances, to try to compare the present case to that of Whitfield amounts to clutching at straws.”
He also denies he did not communicate with police commissioner Fannie Masemola when he disbanded the KwaZulu-Natal political killings task team.
“What I did was to inform Gen Masemola that I had, after some consideration, concluded the task team is no longer required nor adding value to any policing in SA. I further directed that the political killing task team be disestablished immediately.
“The contention that the task team was disestablished ‘without the knowledge of the police commissioner’ of the police commissioner is thus plainly incorrect.”
He described Mkhwanazi’s allegations against him as “wild”.
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