The dust has not yet settled in a legal bid by former president Jacob Zuma against his successor, President Cyril Ramaphosa, to have police minister Senzo Mchunu’s leave and the appointment of Firoz Cachalia as acting minister set aside.
Zuma and his MK party also want the establishment of a commission meant to probe allegations of criminal infiltration in the security cluster chaired by former acting deputy chief justice Mbuyiseli Madlanga to be set aside.
After suffering a loss in July to have the Constitutional Court rule on the matter on an urgent basis Zuma, in a joint application with his party, has turned to the high court in Pretoria to deliver a verdict in a legal showdown.
The urgent application will be heard in Pretoria on Tuesday. It raises questions about the correct legal interpretation of constitutional provisions and the president’s legal powers.
The top court dismissed the application because it did not engage the court’s exclusive jurisdiction and no case was made out for direct access.
“To the extent that the president sought and was allowed to opportunistically hide behind those technicalities [jurisdiction and lack of convincing arguments for direct access] to escape much-needed judicial accountability for the unjustifiable multiple breaches of the rule of law, there are no more hiding places,” he argues in his legal papers.
Timeline: Zuma vs Ramaphosa
- July 13: Mchunu put on leave; Cachalia named acting minister; inquiry launched.
- July 31: Constitutional Court rejects Zuma’s direct-access bid.
- August 4: MK Party sends Ramaphosa legal queries.
- August 13: Zuma files urgent High Court application.
- Mid–August: Analysts split on legality of case.
- August 24: Legal bid ongoing ahead of court battle.
- August 26: High Court hearing set.
The challenged decisions by Ramaphosa were triggered 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 likens Mkhwanazi to former intelligence boss Arthur Fraser, an allay of his, who went public about the alleged theft of hundreds of thousands of dollars hidden in furniture on Ramaphosa’s Phala Phala game farm in Limpopo.
“The serious and unprecedented revelations of alleged criminality made by Mkhwanazi, as another highly qualified whistle-blower, in the tradition of intelligence chief Arthur Fraser, can no longer be ignored or swept under the carpet at the request of the president.”
In his papers Ramaphosa counters the sentiment the allegations were “swept under the carpet”, saying they did the opposite by establishing a commission to expose the depth of the allegations in public.
Zuma insists the president’s appointment of Cachalia was unlawful and further contends the professor of law did not state his full name when taking the oath on August 1.
The MK party leader argues the appointment of Cachalia would be a “waste” of taxpayers’ money.
“The so-called minister has assumed office and will be making decisions which affect the security of the people of SA. The appointment is in breach of sections 91, 96 and 98 of the constitution.”
Zuma advances the same arguments he did in the top court — that Ramaphosa “abused his powers” when placing Mchunu on leave because there is no legal provision to place a minister on leave.
“It is not rationally possible for the president to have the purported power to place a minister on special leave,” he contends.
“The purported implied power to place a minister on leave is a factual oxymoron, legal absurdity and logical impossibility.
“Nor can there be any rational justification for having two ministers in the same portfolio, one in office and the other on a ‘paid holiday or vacation’.”
Ramaphosa, in his answering affidavit, argues he followed the law on all three decisions.
On the appointment of Cachalia, the president relied on section 91(3) (c) of the constitution to appoint the new minister. The provision allows the president to appoint a minister from outside parliament.
“I appointed him [Cachalia] as a minister as entitled to do in terms of section 91 (3) (c) of the constitution. Following that appointment, I assigned to minister Cachalia the powers and functions attached to the minister of police, with the result that he became the acting police minister as envisaged in section 98 of the constitution.”
The president argued the point of technicality, fought by Zuma, that in his announcement on July 13 he stated he would appoint Cachalia and later cited 91 (3) (c) — which does not provide appointment of an acting minister but for a minister — was legally unsound.
Ramaphosa argues the announcement had no legal implications because on paper he followed the correct procedure.
He denies by not firing Mchunu he was rendering a favour to a political ally.
“I understand that section 91 gives me the power to dismiss ministers.
“My understanding is that this power of dismissal includes all of the career incidents of ministers, and that I am afforded a wide berth as to how to deal with ministers.
“This includes, among other powers, the power to place a minister on special leave.”
Ramaphosa argues if he was not empowered to suspend a minister pending an outcome of a probe, it would cause chaos in the executive leadership.
“I would be compelled in all cases regardless of the circumstances to dismiss that minister simply on the basis of allegations against him or her, even if they may, on investigation, turn out to be unfounded.”
He also defends the decision to establish the commission.
“The Madlanga commission is expected to conclude within six months. At that point, I will have clarity on the as-yet untested allegations against minister Mchunu and will take appropriate action arising therefrom.”
The president wants the application to be dismissed by the high court.
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