Constitution does not permit Ramaphosa to be undecided in Mchunu case, say MKP lawyers

THE Constitution does not grant President Cyril Ramaphosa the power to suspend. He can only appoint or dismiss and there is nothing in between.

That was the argument advanced by lawyers representing Jacob Zuma’s uMkhonto weSizwe before the Constitutional Court on Wednesday.

The party is challenging Ramaphosa's decision to place Police Minister Senzo Mchunu  on leave of absence and the appointment of Firoz Cachalia in an acting position.

Ramaphosa placed Mchunu on special leave after serious allegations by KwaZulu-Natal police commissioner Nhlanhla Mkhwanazi that he colluded with a criminal syndicate, accepted illicit payments, interfered in investigations and disbanded a specialised task force into political killings.

The MKP wants Mchunu fired, while also contesting Cachalia’s appointment as acting police minister.

Central to the case are questions about the limits of presidential power, the legality of acting appointments and whether Ramaphosa acted rationally when he established a judicial commission of inquiry into serious allegations of criminal infiltration of law enforcement agencies.

Lawyers representing the MKP argued that Ramaphosa has no right to appoint more than one minister of police at the same time.

MKP legal counsel, Mpati Qofa-Lebakeng, argued that the country's ailing economy cannot afford to have more than one minister and two acting ministers at the same time.

“We have dealt with cost implications related to three ministers of police and two deputy ministers. We are saying in the context of an economy like ours, there is no rational decision that would warrant the President having three Ministers of Police in his Cabinet. The cost implication does not limit itself only to the Minister of police's portfolio. It also goes to the second leg of costs that are occasioned by the establishment of the Commission of Inquiry. We are saying, just on that point alone, there is no way that the cost would be justifiable when the President has taken the decision which has already been alluded to," she argued.

Also, arguing on behalf of the MK Party, Dali Mpofu stated that no President could appoint a minister from outside those who are already in Cabinet.

"We can agree that it is wrong," Mpofu said.

Anton Katz, also on behalf of the MKP argued that Chapter 5 of the Constitution grants no power to suspend, only to appoint or dismiss, saying there was nothing in between.

"There is no vacancy when it comes to ministers, and for this purpose, I want to refer you to Chapter 5 of the Constitution. This part of the Constitution, its wording, content, and purpose, tells us one thing and one thing only: that there is no power to suspend. It is to appoint, dismiss, and nothing in between," he stated.

Arguing for Ramaphosa, Kate Hofmeyr said that the Constitutional Court was the last court of resort, arguing that the MKP had abused the process when it approached the apex court to challenge this matter on an urgent basis.

The powers to assign and appoint ministers also lie with the President, who has done right by the Constitution in this regard, she maintained.

"Former Chief Justice Mogoeng Mogoeng spoke out about the monopoly of this court. This court must be concerned about taking this matter. The President has both the powers and an obligation, and he has the right to exercise these powers subject to the strictures of the law," she argued.

Advocate Griffiths Madonsela, arguing for Mchunu, said his client was 'ambushed' by Mkhwanazi's accusations. He said the MKP's response to these allegations was to 'draw their spears' and to 'crucify him'.

Judgment was reserved.

Cape Times