The political intrigue around the allegations made by KwaZulu-Natal police commissioner Nhlanhla Mhkwanazi has dominated public debate since his bombshell media conference earlier this month. But when the Constitutional Court sits on Wednesday to hear the case between the MK Party and President Cyril Ramaphosa, it will be legal questions that will likely be front and centre: questions of vires — legal powers — and rationality.
Former president Jacob Zuma and the MKP filed an urgent application with the apex court after Ramaphosa announced his course of action in response to Mkhwanazi's allegations, which implicated police minister Senzo Mchunu, several law enforcement bodies and the judiciary in colluding with organised crime.
Ramaphosa made three decisions in the face of the allegations: to establish a judicial commission of inquiry headed by acting deputy chief justice Mbuyiseli Madlanga, to place Mchunu “on a leave of absence”, and to appoint Prof Firoz Cachalia as acting minister of police.
All three of these decisions have been challenged by the MKP as irrational and inconsistent with the president’s oath of office. If the apex court decides it has exclusive jurisdiction to entertain the application, which is disputed, it would be hearing the application as the first and final court. There are no appeals from the Constitutional Court.
In the MKP's court papers, its deputy president, John Hlophe, said Ramaphosa did not have the legal power to place Mchunu on a leave of absence, “which is a fancy phrase for suspension with pay”. The constitution contains no express provision to place a minister on leave of absence or to suspend a minister.
But Ramaphosa said the constitution gave him 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, amongst other powers, the power to place a minister on special leave or to reshuffle cabinet and assign a different portfolio to the minister. It also includes the power to assign no powers to a minister while a minister is on special leave.”
Mchunu made a similar argument: the power to dismiss is necessary in order to exercise the power to appoint, he said. “The same reasoning applies with equal force in relation to the power to place one on precautionary suspension or leave of absence,” he said. It was “absurd” to suggest that the president’s wide powers of appointment and dismissal excluded the power to “do something less drastic”.
However, Hlophe said it would be argued at the hearing that the president’s power to dismiss a minister should not be confused with the dismissal of an employee. The MKP may argue in court that the cabinet is not governed by labour law and Mchunu is not an ordinary employee. In a replying affidavit, Zuma said the power to dismiss was “purely political” and not susceptible to the requirements of labour laws.
Ramaphosa said in his affidavit that such an approach had the potential to destabilise the executive. If he was not empowered to suspend a minister it would “be possible merely for allegations of serious misconduct to be made against a minister, regardless of whether there is any basis for those allegations, and I would have no choice but to dismiss”. This would be an unwarranted reading of his broad executive powers, he said.
The MKP also said the appointment of Cachalia as acting police minister was ultra vires or outside the president's legal powers. The constitution allows the president to appoint two ministers from outside parliament. It also, in a different section, allows the president to assign the powers and functions of one cabinet member to another if the first is absent — in other words, to create an acting minister. But Cachalia is not a cabinet member, so he cannot be made an acting minister, said Hlophe.
This is clearly a contrivance, expressed in indecipherable gobbledygook and at best an ill-fated attempt at ex-post facto rationalisation of an inexplicable mess.
— Affidavit of Jacob Zuma, MKP leader
Ramaphosa’s answer was that Cachalia would be appointed a minister. Then, “upon his appointment as a minister, Prof Cachalia will be assigned minister Mchunu’s powers and functions, as acting minister of police”. A two-step process.
In his replying affidavit, Zuma was dismissive of Ramaphosa’s “newly proposed staggered process”, saying there was no room for it in the constitution. “This is clearly a contrivance, expressed in indecipherable gobbledygook and at best an ill-fated attempt at ex-post facto rationalisation of an inexplicable mess.”
If Ramaphosa persuades the court that he acted within his powers, the MKP will still argue that he acted irrationally. This terrain may be constitutionally delicate. What the president does with his cabinet lies at the heart of executive power. In a 2017 judgment, the Western Cape High Court said it was “difficult to imagine a power closer to the heartland of the president’s personal preferences than the power to appoint and dismiss ministers”. The power was “by its nature highly discretionary”. While there may be grounds for a court to interfere on the grounds of irrationality, “the threshold for judicial interference is likely to be very high”, the court said.
Rationality in law looks at whether there is a connection between the exercise of a power and its purpose. Hlophe said “no legitimate purpose can ... be served by placing Mchunu on leave of absence except to ensure that he retains his salary and perks indefinitely”.
The “extremely feeble” reason given by Ramaphosa — for the judicial commission to execute its function effectively — was illogical, said Hlophe. “The commission will still function effectively even if Mchunu had been dismissed.”
But Ramaphosa said he put Mchunu on leave because of the seriousness of the allegations. “The allegations have profound implications for public confidence in the executive and the police force as a whole. So I decided that a proper investigation into the veracity of the allegations was warranted.”
The MKP frames the rationality inquiry as one of choices: in making the choice between dismissing or suspending, Ramaphosa’s choice was irrational. But Ramaphosa frames the question differently: was there a rational reason for him to put Mchunu out of action while the allegations are investigated? His answer: yes.
