The Constitutional Court on Thursday dismissed former president Jacob Zuma and his MK Party’s case challenging President Cyril Ramaphosa’s decision to put police minister Senzo Mchunu on leave of absence, appoint Prof Firoz Cachalia as acting police minister and establish the Madlanga commission.
In handing down the apex court’s unanimous order, justice Rammaka Mathopo said the application did not engage the court’s jurisdiction. Also, no case had been made out for direct access to the Constitutional Court. Full reasons for the order would follow.
The decision clears the way for the president to appoint Cachalia, an appointment that was due to be made on Friday, and for the commission to proceed with its work.
In court on Wednesday the president’s legal team argued the case should not be entertained by the court and ought to have been brought to the high court.
Zuma and the MK Party went directly to the ConCourt on the grounds that it had exclusive jurisdiction and there are some matters only the ConCourt can decide, including a decision that the president has “failed to fulfil a constitutional obligation”. Failing that, they argued that even if the apex court did not have exclusive jurisdiction, the circumstances here were exceptional enough to warrant hearing it directly.
The president’s counsel, Kate Hofmeyr SC, said this case did not involve constitutional obligations of the president but was about whether he had exercised his constitutional powers. It was a “stock standard” challenge to the conduct of the president, which belonged in the high court, she said, adding that the constitution is clear that when it came to conduct of the president, the ConCourt was an appeal court — it should not be the first and last court to hear and decide.
Earlier on Wednesday Zuma’s counsel, Dali Mpofu SC, was questioned by several judges on which constitutional obligation the president had failed to fulfil in this case. He said the president had failed to uphold and defend the constitution. This, coupled with his failure to fulfil other obligations, brought it within the court’s exclusive jurisdiction, he argued.
Mpofu was pressed by some of the justices as to exactly which other obligations the president had failed on. He said 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 these powers were assigned lawfully.
On direct access, Hofmeyr said “many cases involve matters of grave constitutional significance”, but the constitutional scheme directed that they begin in the high court.
The ConCourt had spoken in earlier judgments of its crippling workload, she said. “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, she added.
Unless the ConCourt “sets its limits in this case, we would say the administration of justice more broadly may be imperilled”, said Hofmeyr.
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