Suspended Police Minister Senzo Mchunu. (@Senzo_Mchunu/X)
The constitutional court has reserved judgment on an urgent application brought by the uMkhonto weSizwe (MK) party and its leader, Jacob Zuma, challenging President Cyril Ramaphosa’s decision to put Police Minister Senzo Mchunu on special leave and appoint Firoz Cachalia as acting minister.
The case, which was argued on Wednesday, raised constitutional questions about the scope of presidential powers, the legitimacy of judicial inquiries and whether the country’s highest court is the right forum for such matters.
Early this month, Ramaphosa put Mchunu on special leave pending the outcome of an inquiry chaired by Acting Deputy Chief Justice Mbuyiseli Madlanga into allegations against the minister — made by KwaZulu-Natal police commissioner Nhlanhla Mkhwanazi — that he colluded with criminal syndicates and interfered in sensitive police investigations.
The president’s appointment of Cachalia, who at the time was not a member of the cabinet, as acting police minister triggered a backlash from the MK party, which claims the move is unconstitutional.
Ramaphosa’s legal team argued that the case was in the wrong jurisdiction and should be sent to the high court. Kate Hofmeyr SC, representing the president, said the applicants had failed to make a compelling case for either exclusive jurisdiction or direct access to the apex court.
“This is such an important issue, and they devoted two paragraphs to it,” Hofmeyr said, referring to the applicants’ founding affidavit.
“If this court in this judgment widens its jurisdictional ambit to take this case, it will likely mean that all powers that are granted to the president under the Constitution will come here and only here as this court of first and final instance. And that would make a mockery of the prior jurisprudence of this court.”
Hofmeyr maintained that the constitutional scheme required such disputes to be initiated in the high court, which can deal with urgent matters more efficiently. Justice Rammaka Mathopo queried whether dismissing the case on technical grounds might be seen as judicial abdication, but Hofmeyr said it would reinforce the integrity of the court’s jurisdiction.
Asked by Mathopo what would happen if the application was dismissed, Hofmeyr responded: “He [Cachalia] will take office and the Madlanga inquiry will continue. That is the consequence, Justice Mathopo, when litigants go before the wrong forum … If you go before the forum that didn’t have jurisdiction, you suffer this consequence.
“Forum shopping cannot be rewarded,” she said, reiterating that urgent matters should begin in lower courts before reaching the apex court.
Justice Steven Majiedt asked Hofmeyr whether the alleged implications for national security and judicial integrity in the matter justified bypassing the high court.
“Now the argument is that this is a matter of important rational concern, which as an ordinary citizen it is,” he said. “But legally … why doesn’t this case warrant direct access, given that it goes to national security and implicates the judiciary?”
Ramaphosa’s senior counsel, Ngwako Maenetje SC, defended the president’s choice to appoint Cachalia, a former MP and constitutional law expert, as acting police minister while Mchunu is investigated.
“The president says he is not in a position to exercise the discretion to dismiss without those allegations being investigated,” Maenetje said, referring to the serious but untested claims brought by Mkhwanazi.
The MK party, represented by Anton Katz SC, and Zuma’s representative, Dali Mpofu SC, argued that Ramaphosa overstepped his constitutional authority. They maintained the president can appoint or dismiss ministers, but not suspend them or delegate their functions to someone outside the cabinet.
“The president cannot assign the powers or functions of Minister Mchunu to a non-member of cabinet. The appointment of Cachalia is ultra vires the Constitution,” Mpofu said.
He maintained that Mchunu had been forced to go on special leave, contrary to claims of it being voluntary.
Katz echoed Mpofu’s submission that the Constitution does not give the president powers to suspend ministers.“Our submission is that the president will always have a discretion to dismiss or not to dismiss. But there is no power for the president to suspend ministers in the Constitution.”
Mathopo said the interpretation advanced by the MK party could force presidents to fire ministers prematurely based on untested claims, which he said could have “chaotic” consequences.
The MK party also attacked the legitimacy of the Madlanga commission, arguing that because Mkhwanazi’s allegations implicated the judiciary in corruption, it was inappropriate for a sitting judge to preside over the inquiry.
Justice Leona Theron asked why the party opposed a judge chairing the commission. Mpofu clarified that the party did not oppose the inquiry itself, only that it be led by a judicial officer.
Theron warned that the MK party risked a cost order because of unsubstantiated conspiracy claims in its court papers. Mpofu responded that Ramaphosa had addressed those allegations and had not requested a costs order himself.
Justice Jody Kollapen argued that the Judicial Service Commission is the proper forum for addressing complaints against judges, and suggested that Mkhwanazi’s claims appeared to be generalised allegations rather than formal grievances.
Majiedt challenged Mpofu on how the court could preside over a case that includes accusations against itself. “How does this court hear a matter where the judiciary is being attacked, and yet it is this same judiciary being asked to adjudicate the matter?”
Theron questioned the MK party’s decision to approach the constitutional court directly, asking why the high court was not the appropriate first step. Mpofu argued that the matter was of “utmost public importance”, citing protests and financial implications, including the cost of the commission and the confusion of having “two police ministers”.
Outside court, MK youth leader Bonginkosi Khanyile told supporters that the party was “protecting South Africa from the gangsterism being perpetuated by politicians in government”.
He called for Mchunu to be arrested rather than placed on leave at taxpayers’ expense. MK deputy president Lincoln Machaba said he was awaiting direction from the party’s leaders on the next step.