The Constitutional Court has dismissed former president Jacob Zuma’s urgent application for direct access to have police minister Senzo Mchunu’s leave and the appointment of Firoz Cachalia as acting minister set aside.
In dismissing the application, the court said the case did not engage its jurisdiction and therefore direct access was refused.
“The Constitutional Court has considered the application for exclusive jurisdiction and direct access. It has concluded that the application does not engage the court’s jurisdiction and no case has been made out for direct access,” judge Rammaka Mathopo said.
Mathopo said reasons for the unanimous judgment would be given later.
With the case dismissed, there is nothing legally prohibiting Cachalia’s appointment as acting minister on Friday.
The ruling means the MK will have to initiate its legal application at the high court should it wish to proceed.
The court does not usually entertain applications that have not been argued in the high court or Supreme Court of Appeal. Once the apex court has decided on a matter, litigants have no other avenue to appeal.
President Cyril Ramaphosa suspended Mchunu after KwaZulu-Natal police commissioner Lt-Gen Nhlanhla Mkhwanazi alleged that police, prosecutors and judicial officers were part of a criminal syndicate controlled by drug cartels.
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 allegations of criminal syndicate infiltration in the security cluster.
The MK party also wanted the apex court to set aside the decision to establish the commission chaired by acting deputy chief justice Mbuyiseli Madlanga alongside advocates Sesi Baloyi and Sandile Khumalo.
Zuma’s lawyer, advocate Dali Mpofu, argued on Wednesday the case could have been litigated in a high court but said it would take years for full ventilation, adding “there would be no country left” if the case was not immediately argued at the apex court.
Kate Hofmeyr, acting for the president, described the applicant’s case to be legally weak on the crucial point of exclusive jurisdiction.
She said the applicants only “dedicated two paragraphs” in an attempt to convince the court to grant access on the grounds of exclusive jurisdiction.
She warned if the court accepted the case was within its jurisdiction it would have “very serious” consequences for the court.
The acceptance of the case would result in all political cases challenging the president’s legal powers being argued at the court and create a mounting caseload for the highest court in the country.
Hofmeyr said this would negatively affect the court’s main mandate of delivering justice in important constitutional matters.
In arguing for direct access, Mpofu said it would save time and costs, the conduct of the president is “likely to be catastrophic” and claimed the president failed to fulfil his constitutional obligations.
Mpofu, reacting to the court’s decision on Thursday, said he would consult with Zuma on the next step.
“Our client has expressed his shock at this and we will be consulting with him,” he said.
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