President Cyril Ramaphosa has discretionary power to suspend or place a minister on leave although it is not an express power in the constitution, a full sitting of the high court in Pretoria has found in dismissing former president Jacob Zuma’s case against his successor.
Zuma’s third try in court to set aside Ramaphosa’s decision to place Senzo Mchunu on leave fell flat when the matter was decided on its merits by judges Letty Molopa-Sethosa, Graham Moshoana and Etienne Labuschagne.
Zuma and the MK party took Ramaphosa to court to overturn the decision to place the police minister on special leave and appoint Firoz Cachalia. Ramaphosa made the decisions in July in the wake of damning allegations by KwaZulu-Natal commissioner Lt-Gen Nhlanhla Mkhwanazi alleging the justice cluster was infiltrated by sophisticated criminal syndicates.
Zuma and MK argued there is no legal provision that empowers Ramaphosa to place Mchunu on leave and the president should have fired the minister instead.
“To dismiss minister Mchunu outright based on untested allegations could be assailed as irrational,” reads the full bench judgment, which was delivered on Tuesday.
“There must be a power to protect the public confidence in the executive and to investigate whether there are grounds for dismissal. A power to suspend, as a precursor to a decision to dismiss or not, in terms of section 91(2) is available under the third power contemplated in section 84(1), ie implied as necessary for the president to exercise his powers to appoint or dismiss ministers.”
The implied power was pinned on a section of the constitution that empowers the president to appoint ministers, assign their powers and functions, and dismiss them. The full bench found suspending a minister is reasonably necessary when it is not apparent whether the facts warrant dismissal.
“The appointment of the Madlanga commission as a step in answering this question indicates that it was a reasonably necessary requirement to appoint the commission to enable the president to, in due course, exercise his constitutional powers.
“It is clear that the constitution does not provide the president an express power to place a minister on leave or even precautionary suspension. Properly interpreted, sections 91(2) and 98 yield the implied power to place minister Mchunu on either suspension or leave of absence.”
Zuma and MK, represented by Dali Mpofu, also sought to overturn the establishment of the commission chaired by retired justice Mbuyiseli Madlanga on the basis that members of the judiciary were implicated by Mkhwanazi. Mpofu argued a judge cannot preside over the commission.
The judgment reads: “The allegations are, however, not against the judiciary specifically but relate to specific instances. As long as the issues fall within the terms of reference of the commission, there is no impediment to an impartial judge presiding over the commission.
“It is not correct to suggest that only the Judicial Service Commission is empowered to investigate allegations of impropriety of judges.
“Basically, there is nothing unlawful or irrational in establishing the Madlanga commission. Accordingly, an attack against its establishment and/or composition falls to be rejected and dismissed.”
The full bench found Ramaphosa rationally applied his mind to the establishment of the commission. “It is a decision that cannot be faulted from a legality and rationality vantage point. In the premises, the entire application falls to be dismissed.”
The full bench also dismissed the contention against Cachalia’s appointment. Zuma and MK argued the appointment was unlawful because Ramaphosa quoted the wrong section of the constitution when he announced the appointment of Cachalia as an acting minister.
The president quoted section 91, which empowers him to appoint ministers, whereas the applicant contends the section is not designed for the appointment of acting ministers.
The dismissal of the case, on its merits, marks the third time Zuma and MK have lost the case. It was initially dismissed by the Constitutional Court in July on the basis that the applicant did not meet the grounds for direct access. Thereafter, it was dismissed in the high court on the basis it did not meet the test for urgency.
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