Former president Jacob Zuma’s lawyers and those representing his successor, President Cyril Ramaphosa, spent the whole day in the Constitutional Court on Wednesday arguing the merits of police minister Senzo Mchunu’s leave of absence.
Zuma and his MK party argued the minister should have been dismissed and not placed on special leave to make way for a commission of inquiry investigating claims Mchunu disbanded a police task team on political murders in KwaZulu-Natal when it was close to exposing suspects behind high-profile killings.
They also claimed Ramaphosa’s decision to put Mchunu on a leave of absence pending the work of a commission of inquiry into allegations made by KwaZulu-Natal police commissioner Lt-Gen Nhlanhla Mkhwanazi was wrong and should be set aside.
The allegations of impropriety forced the president to put Mchunu on special leave and appoint Firoz Cachalia as an acting minister of police in his place for the life of the commission.
Cachalia is expected to start work on August 1.
The applicants pleaded for the court to set aside the establishment of the commission meant to probe allegations of criminal infiltration in the security cluster, including the judiciary.
Ramaphosa appointed acting deputy chief justice Mbuyiseli Madlanga to chair the inquiry alongside advocates Sesi Baloyi and Sandile Khumalo.
Judge Steven Majiedt asked Mpofu why the court was qualified to decide on the matter if no judge has the right to preside over the commission because the judiciary is implicated.
“Why is this case in court if the entire institution is in the dock? How are we qualified to hear this case but another judge, a member of this institution, is disqualified, why?”
Mpofu initially said: “I won’t answer that question.” Later he said: “You are qualified because you swore when you were being admitted as a judge to apply the constitution of the republic.”
Majiedt said he did not understand Mpofu’s answer because their case was disqualifying the judiciary as a whole on the matter concerning the commission.
Mpofu was also quizzed on the argument that the president had no legal power to place Mchunu on leave. When asked whether the president had no power other than to appoint and dismiss ministers, Mpofu said the president had implied powers. He argued the president might grant leave but not force someone to take leave as “he did with Mchunu”.
MK party lawyer Anton Katz was of a different view, saying the president did not have prerogative powers. “There is no power to suspend. There is a power to appoint and dismiss, nothing in-between,” he said.
Mchunu’s lawyer, advocate Griffiths Madonsela, said the president was legally empowered to suspend ministers.
Section 98 of the constitution, which empowers the president to appoint an acting minister when a minister is absent, legally empowered the president to place a minister on leave, Madonsela said.
On the appointment of Cachalia, Mpofu said the president acted unlawfully because he quoted the wrong section of the constitution when he announced Cachalia would be appointed as an acting minister.
The president’s lawyer, Ngwako Maenetje,said Ramaphosa detailed he would appoint Cachalia as a minister first using 91(3)(c) and thereafter appoint him as an acting minister according to section 98.
He said the sentence that Mpofu read referred to said “sections”, but section 98 must have fallen away during the writing of the urgent submission.
Maenetje said throughout the president’s papers he explained the legal process to appoint Cachalia would rely on both sections.
When Mpofu was asked by the judges if there was something wrong if the president appointed Cachalia using both sections, he said no. But he was adamant the president did not follow that process.
Kate Hofmeyr, also acting for the president, rejected Zuma’s case based on the crucial point of exclusive jurisdiction. She said the applicants put up the weakest legal arguments on the most important part of the case.
“Cases that involve this court’s exclusive jurisdiction come to this court first and last, and no other court may opine on those issues,” she said.
Mpofu conceded the case could have been argued in a high court but said it would take years for full ventilation, adding that “there would be no country left” if the case was not immediately argued at the apex court.
Hofmeyr said should the court accept the case falls within its exclusive jurisdiction it would have “very serious” consequences for the court.
“That will make a mockery of prior jurisprudence of this court.”
The court reserved its decision on the matter.
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