Legal battle: Jacob Zuma and his uMkhonto weSizwe party took President Cyril Ramaphosa to the constitutional court this week. (Delwyn Verasamy/M&G)
The legal team of former president Jacob Zuma and his uMkhonto weSizwe (MK) party took aim at his successor Cyril Ramaphosa in the constitutional court this week, accusing him of double standards in dealing with ministers implicated in corruption or other wrongdoing.
After Wednesday’s arguments, the apex court dismissed the party’s application for direct access to it, ruling that the matter did not fall within its exclusive jurisdiction.
The party had gone to the court to contest Ramaphosa’s placing of Police Minister Senzo Mchunu on special leave of absence, his appointment of Firoz Cachalia as acting minister and the establishment of an inquiry, chaired by acting deputy chief justice Mbuyiseli Madlanga, to investigate allegations against Mchunu by KwaZulu-Natal police commissioner Nhlanhla Mkhwanazi last month.
During the hearing on Wednesday, Zuma’s legal team argued that Ramaphosa’s claims of upholding due process in handling the matter were undermined by his own track record of shielding ministers who had been found by the Zondo inquiry into state capture to have a prima facie case of criminality against them.
Advocate Dali Mpofu, representing Zuma, said the president’s explanation that he was waiting for the outcome of the Madlanga inquiry before acting against Mchunu was consistent with his continued retention and promotion of ministers who were also implicated in serious wrongdoing by the commission of inquiry into state capture.
“There’s no South African, nobody who lives in this country, who can believe that story,” Mpofu said.
He argued that the president was weaponising executive discretion to sideline political opponents while protecting allies, saying Mchunu’s suspension, rather than an outright firing given the gravity of Mkhwanazi’s allegations, demonstrated a selective and politically expedient approach to accountability.
Mkhwanazi accused senior leaders in the police of being part of a criminal syndicate that helped infiltrate the justice system. He added that senior political figures, including Mchunu, were linked to individuals at the heart of the syndicate.
Mkhwanazi also claimed that Mchunu’s disbanding of the province’s political killings task team had effectively neutralised dozens of dockets related to violent and organised crime.
Mchunu has denied any wrongdoing but Ramaphosa placed him on special leave pending the Madlanga commission’s findings.
The MK party insists that Mchunu should have been removed from office, just as Zuma himself, accused to have been at the centre of state capture, was pressured to resign before his term ended, paving the way for Ramaphosa to become president in February 2018.
The party argued the president has no right to merely suspend Mchunu and appoint someone else in his place without outright firing him.
But some legal experts told the Mail & Guardian otherwise, saying Ramaphosa had the prerogative to hire and fire whom he pleased.
They added that suspending Mchunu was the correct decision to ensure that the minister’s right to be considered innocent until proven guilty was not infringed on.
Mpofu said Ramaphosa’s restraint in this case was a façade that collapsed when scrutinised against his treatment of political opponents like Zuma, who was expelled from the ANC after forming the MK party.
He argued that Ramaphosa had been similarly lenient with other allies such as Mineral and Petroleum Resources Minister Gwede Mantashe, who remains in the cabinet despite having been found by the Zondo Commission to have improperly received security upgrades at his home from Bosasa, a company deeply tangled in state capture allegations. The commission recommended that Mantashe be investigated under the Prevention and Combating of Corrupt Activities Act.
Mpofu said the president’s argument that he had not fired Mchunu because the claims against him are still untested holds no water. He pointed out that Ramaphosa had appointed Mantashe to the cabinet when the Zondo Commission had already made findings indicating prima facie criminal liability.
“So if you do wrong, and you are found by a commission to have possible criminal liability, not only are you not going to be punished, but you are going to be promoted. What is that?” Mpofu asked, adding that the use of commissions of inquiry had become a delaying tactic, rather than a sincere effort at accountability.
“It means if Minister Mchunu were to be placed in the same position as Minister Mantashe in three years’ time after the Madlanga Commission finishes its work and the review applications and the appeals and all that happens then we assume the Madlanga Commission says there is prima facie criminality, he would be in the exact same position as Mantashe is now.”
“All the people who were implicated in the Zondo Commission have been appointed by him,” Mpofu added, singling out former minister Zizi Kodwa and current deputy minister David Mahlobo.
Arguing for Ramaphosa, advocate Kate Hofmeyr, a former evidence leader at the Zondo Commission, challenged the MK party’s legal standing and procedural approach. She told the court that Zuma’s legal team had failed to establish any basis for the constitutional court to hear the matter directly.
“This is such an important issue, and they devoted two paragraphs to it,” Hofmeyr said, referring to MK’s attempt to claim the case involved the court’s exclusive jurisdiction.
She emphasised that the apex court was a forum of last resort and could not be approached without first exhausting remedies in the high court, especially when no compelling legal rationale was provided.
Justice Rammaka Mathopo appeared to agree with Hofmeyr, asking pointedly whether the MK had not approached the wrong forum entirely.
Thursday’s ruling by the constitutional court came after four legal experts who spoke to the M&G on condition of anonymity because they were close to the case echoed Hofmeyr’s sentiments.
“It would be improper for the constitutional court to entertain this matter at this stage, as doing so would establish a precedent permitting litigants to bypass the procedural hierarchy of the judicial system and approach the apex court directly, thereby undermining the established principles of judicial process and forum hierarchy,” one said.
The constitutional court said it would give detailed reasons for its ruling at a later date.