The constitution gives the president “a wide berth as to how to deal with ministers”, said President Cyril Ramaphosa in court papers to the Constitutional Court on Wednesday.
“It is clear that I am empowered to place a minister on special leave when there are serious allegations ... so that those allegations can be properly investigated,” said Ramaphosa.
Ramaphosa was answering the urgent court case brought by former president Jacob Zuma and the Umkhonto we Sizwe Party (MK Party), asking the apex court to declare irrational and invalid the president’s decisions to place police minister Senzo Mchunu on a leave of absence and to appoint Firoz Cachalia as acting police minister.
Ramaphosa made these decisions following the shock allegations by KwaZulu-Natal police commissioner Nhlanhla Mkhwanazi, implicating Mchunu, other law enforcement bodies and members of the judiciary in colluding with high-level crime. Ramaphosa is also establishing a judicial commission of inquiry to investigate Mkhwanazi’s allegations.
Zuma and the MK Party urgently approached the ConCourt on Friday, challenging all three decisions. In their application, the party's deputy president John Hlophe said there was no law that empowered the president to place a minister on a leave of absence — “which is a fancy phrase for suspension without pay.
“The decision is therefore ultra vires [outside the president’s powers in law].”
But Ramaphosa said on Wednesday that the constitution gave him the power to dismiss ministers, which included the power to place a minister on special leave or reshuffle the cabinet and assign a different portfolio to a minister.
It also included the power to suspend a minister — a “necessary incident of the power to dismiss”, said Ramaphosa.
“Where I was not empowered to suspend a minister pending the outcome of an investigation ... I would be compelled in all cases, regardless of the circumstances, to dismiss the minister simply on the basis of the allegations ... even if they may, on investigation, turn out to be unfounded.”
Limiting his power in such a way had the potential to destabilise the executive, he said.
He said his decision was informed by the seriousness of the allegations, which raised the question whether Mchunu had “breached his most basic duties” under the constitution, including his oath of office. “They also raise the question of whether minister Mchunu has engaged in criminal conduct,” said Ramaphosa.
“I therefore considered it necessary to remove Mchunu from his position, to take his current powers away from him, and to do so pending the outcome of an investigation through the commission of inquiry,” he said.
The difference between Mchunu and Andrew Whitfield — who Ramaphosa removed from cabinet in June — was that Whitfield admitted the allegations against him, said Ramaphosa. “The allegations against Mchunu, on the other hand, are untested ... A decision to dismiss him would therefore be on untested allegations,” said Ramaphosa.
On the decision to appoint Cachalia, the MK Party’s case was that Ramaphosa had expressly said his decision was made in terms of section 91(3) of the constitution, which allows for ministers to be appointed from outside parliament.
But, said Hlophe, this section did not provide for the appointment of acting ministers. Instead, the appointment of acting ministers is governed by section 98 of the constitution, he said. But under this section, acting ministers must be members of cabinet.
Ramaphosa said he “deemed it appropriate to appoint a person from outside the existing cabinet” and his decision was taken in terms of section 91(3). Appointing someone from outside cabinet “would remove the possibility of the allegations ... tainting, or being perceived to taint, the SAPS and other agencies”, he said.
He was entitled to appoint a minister from outside the National Assembly and, once Cachalia was appointed as a minister, he would then be assigned Mchunu’s powers and functions, said Ramaphosa.
Ramaphosa acknowledged there would be cost implications but denied that this would be a breach of taxpayers’ rights, as claimed by MK Party. “I deemed this expenditure justifiable in the circumstances, to maintain the legitimacy and integrity of the criminal justice system,” he said.
On the MK Party’s challenge to the judicial commission of inquiry, Ramaphosa said the party's case was “far-fetched and baseless”.
Hlophe had said the appointment of acting deputy chief justice Mbuyiseli Madlanga to lead the commission was unlawful because Mkhwanazi had implicated members of the judiciary. “It is improper for any member of the judiciary to potentially investigate himself or herself,” said Hlophe. He added that the only bodies constitutionally and legally empowered to investigate judicial conduct were the Judicial Service Commission (JSC) and the Magistrates Commission.
But Ramaphosa said Mkhwanazi’s allegations all pertained to criminal proceedings that had not reached the Constitutional Court: “As far as I have been able to ascertain, none of the proceedings to which the allegations relate was ever referred to the Constitutional Court for adjudication. There is simply no suggestion that any of the individuals appointed to the commission of inquiry would be compromised in any way.”
He said the JSC and the Magistrates Commission had specific mandates, but there was no suggestion that an investigation of Mkhwanazi’s allegations would preclude these bodies from exercising their mandates.
Ramaphosa also addressed the MK Party’s allegation that the Zondo commission into state capture was a waste of resources.
He annexed to his court papers a progress report to parliament on the implementation of the recommendations of the Zondo commission, saying assets to the value of R10.93bn had been recovered.
“This indicates a tenfold return on the R1bn cost of the Zondo commission,” said the president.
Eight new laws had also been enacted “to address critical vulnerabilities in procurement, intelligence services, anti-corruption strategy and political funding”, he said.
Ramaphosa also explained why his court papers were a day late. He said his team of counsel was secured between Sunday and Monday and he “gave instructions” to them over the course of Tuesday. He received the first draft on Tuesday evening and revisions were made “overnight”. Even though the papers were supposed to be filed on Tuesday, this was “impossible” and he wrote to the court to explain the situation.
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