The president has no power, under the constitution, to suspend a minister, said counsel for the MK Party at the Constitutional Court on Wednesday. “It’s appoint [or] dismiss. Nothing in between,” said Anton Katz SC.
The Constitutional Court was hearing former president Jacob Zuma and the MK Party’s urgent application to declare invalid President Cyril Ramaphosa’s decision to put on “a leave of absence” police minister Senzo Mchunu.
They have also asked the apex court to declare invalid Ramaphosa’s decision to appoint Prof Firoz Cachalia as acting minister of police and to establish a judicial commission of inquiry to investigate the allegations by KwaZulu-Natal police commissioner Nhlanhla Mkhwanazi that Mchunu, several law enforcement bodies and the judiciary colluded with criminal syndicates.
Zuma and the MK Party went urgently to the Constitutional Court, making several arguments — that the president’s actions were outside his legal powers, that they were irrational in law and that his decision on Mchunu was tainted by bias.
In court on Wednesday, the bench closely scrutinised the president’s legal powers. Counsel for the president, Ngwako Maenetje SC, argued that, while there was no express power to suspend or place a minister on leave of absence, the power was implied.
Dali Mpofu SC — representing Zuma — and Katz both agreed there was no such implied power. Mpofu agreed that the president could have some implied powers, “in between” the express powers of appointment and dismissal. But implied powers could only be found to exist if they were necessary for the exercise of those powers given expressly by the constitution. To dismiss, it was not necessary to have the power to suspend.
Katz, on the other hand, argued that there was nothing in between. Questioned by the bench about what the president should do when faced with a situation where there were serious, but untested, allegations against a minister, he said the president could keep the minister in the cabinet or he could dismiss. The broad, discretionary powers given by the constitution also allowed the president to reappoint at will. If Mchunu was cleared, he could simply be reappointed, he said.
He joked that there had even been a cabinet minister for a weekend. This was met with laughter from the court's public gallery, because sitting among them was Des van Rooyen, the minister he was referring to.
But Maenetje argued the power to suspend, or place on leave, was reasonably necessary for the proper and lawful exercise of the power to dismiss. To make a lawful dismissal, there may circumstances where the president needed more information. “Having the power to adopt a procedure to make a properly informed decision must therefore be part and parcel of the greater power to dismiss a minister,” he said in his written argument.
The president’s team also argued that the case should not even be entertained by the ConCourt and ought to have been brought to the high court. Zuma and the MK Party went directly to the Constitutional Court on the grounds that it had exclusive jurisdiction: there are some matters that only the Constitutional Court can decide. These include where the president has “failed to fulfil a constitutional obligation”.
The president’s second senior counsel, Kate Hofmeyr SC, said this case was not about the president failing to fulfil an obligation. It was about how he had exercised his constitutional powers — this was a “stock standard” challenge to the conduct of the president, which belonged in the high court, she said. The constitution was clear that, when it came to the conduct of the president, the ConCourt was an appeal court. It should not be the first, and last, court to hear and decide, she said.
Mpofu was questioned by several judges on which constitutional obligation the president had failed to fulfil in this case. Mpofu said the president had failed to uphold and defend the constitution. This, coupled with his failure to fulfil other “agent-specific” obligations, brought it within the court’s exclusive jurisdiction.
But he was pressed by some of the justices as to exactly which other obligations the president had failed on. He said that when the president was given powers, such as the power to assign acting functions, they went hand in hand with obligations. So, when the president assigned the police minister’s powers to Cachalia, he had an obligation to ensure that these powers were assigned lawfully.
Mpofu argued that, even if the apex court did not have exclusive jurisdiction, the circumstances here were exceptional enough to warrant hearing it directly. But Hofmeyr said that “many, many cases involve matters of grave constitutional significance” but the constitutional scheme directed that they begin in the high court.
She said the ConCourt had spoken in earlier judgments of its crippling workload. “If this court can be the court that every litigant comes to, when it alleges there has been some irregular exercise of power by the president, all the other cases that legitimately must be here ... get shifted down the roll.” This had implications for the administration of justice more broadly, she said.
Unless the ConCourt “sets its limits in this case, we would say the administration of justice more broadly may be imperilled”, said Hofmeyr.
Justice Nonkosi Mhlantla said the court would take a little time before it gave a decision. “It won't be today,” she said.
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