MK party’s ConCourt challenge to Mchunu’s removal raises important constitutional law issues

Any invalidation further down the line of Prof Azhar Cachalia’s appointment as acting police minister would also render his decisions invalid. Things could get messy.

The muted public response to the news that the uMkhonto Wesizwe (MK) party has asked the Constitutional Court to invalidate the decision by President Cyril Ramaphosa to place Police Minister Senzo Mchunu on a leave of absence and to appoint Professor Firoz Cachalia as acting minister of police, as well as the decision to establish a judicial commission of inquiry to investigate the allegations made by Lieutenant General Nhlanhla Mkhwanazi, is somewhat surprising.

Even more surprising is the speed with which the court responded to the application, and the extremely tight deadlines the court set. On Sunday, a mere two days after the application was launched, the Chief Justice issued directions to all parties with an interest in the matter to file affidavits by no later than Monday (for amici) or Tuesday (for respondents), with the applicants having to file replying affidavits by Thursday.

I can’t recall any other matter in which the court has given respondents or amici two days or less to file their answering or intervening affidavits.

This is even more surprising because it is not clear whether the matters raised by the MK party are within the exclusive jurisdiction of the court, or whether the application was not premature because the appointment of Cachalia had not yet happened.

A third surprise is that the MK application does raise some genuine and important constitutional law issues, and largely avoids the usual mix of conspiracy theories, ad hominem attacks and complaints about victimhood normally found in the party’s legal papers (its arguments in support of its challenge to the appointment of the commission of inquiry do include hints of the usual attempts to discredit the judiciary).

Let me explain.

Legal nonsense

The MK party contends, first, that Ramaphosa’s decision to place Mchunu on a leave of absence is irrational because “it is tainted by bias, blatant inconsistency and other unfairness in the form of favouritism”.

This argument is a legal nonsense.

As any competent second-year student would know, a rationality review is not concerned with whether the decision was fair, wise or biased, but rather whether the decision was rationally related to the legitimate purpose being pursued.

As head of the executive, the President enjoys an extraordinarily wide political discretion on the appointment and firing of ministers, on assigning functions to them, and on managing the Cabinet. As a matter of law, he may (and is expected to) pursue even blatantly self-serving political goals when doing so. It is for the electorate, not the courts, to hold him politically accountable for these decisions.

A persuasive argument

However, the MK party also contends that the decision was invalid because it was ultra vires. This was so because there is nothing in the Constitution that authorises the President to place a minister on a leave of absence. “Leave of absence”, it contends, is just “a fancy phrase for suspension with pay.”

I find this argument rather persuasive.

It is a well-established constitutional principle that the President can only exercise powers entrusted to him by the Constitution and by legislation, although section 84(1) of the Constitution states that these powers include those “necessary to perform the functions of the national executive”. The President might therefore argue that the power to place a minister on a leave of absence was necessary for him to perform his functions as head of the executive, but I don’t find this convincing.

It would be politically convenient for the President to have such a power, as it would allow him to signal to the gullible public that he is taking action while not upsetting the members of his party — the audience that matters to him more than any other.

But it is not clear why it would be necessary for him to have such a power to do his job. There is, after all, nothing stopping the President from dismissing Mchunu now, and reappointing the minister later if the allegations against him turned out to be incorrect.

The appointment of acting ministers

MK also contends that the appointment of Cachalia as an acting minister was invalid, although the argument it advances in support of this contention is, at best, difficult to follow.

But I would argue that there is a strong argument to be made that the appointment of Cachalia would be unconstitutional and invalid because the Constitution does not authorise the President to appoint acting ministers. (While I believe Cachalia would make an excellent minister of police, he can only serve as minister of police if he is lawfully appointed as such.)

Section 91(2) of the Constitution authorises the President to appoint “the Deputy President and Ministers”, while section 91(3)(c) of the Constitution (which the President relied on) allows him to appoint “no more than two Ministers” who are not members of the National Assembly.

It is silent on the appointment of acting ministers, nor does section 91(1) mention acting ministers. It states that the “Cabinet consists of the President, as head of the Cabinet, a Deputy President and Ministers”. Does this mean Cachalia would be an acting minister and thus not a member of the Cabinet?

Moreover, section 98 of the Constitution, which provides for situations where it becomes necessary for someone to “act” as minister on behalf of a colleague, makes clear that only a “Cabinet member” can be assigned the power or function of another member “who is absent from office or is unable to exercise that power or perform that function”.

In other words, the President may assign the powers and functions of the minister of police to another “Cabinet member”, thus somebody lawfully appointed as a minister, but may not assign these powers to the non-existent position of “acting minister”, not least because “acting ministers” are not members of the Cabinet.

To ensure the lawful appointment of Cachalia to serve as minister of police, the President would have to appoint him as an ordinary member of the Cabinet who would, like all other ministers, serve as a minister until he is dismissed or he resigns.

If Mchunu’s “leave of absence” is found to be valid, the President could then assign the powers of police minister to Cachalia as an existing member of the Cabinet.

This means that even if the court invalidates the appointment of Cachalia, it might not have any practical effect as far as the appointment is concerned, as nothing would stop the President from fixing the problem by appointing Cachalia as a permanent Cabinet member.

I am not a fan of political parties rushing to court to challenge the validity of decisions by the President or other elected functionaries or institutions that require the exercise of political discretion, especially when this will have little practical effect.

However, this might be an exceptional case in which court intervention is not a bad thing. This is so because any invalidation of the appointment down the line would also render all the decisions taken by the “acting minister” from the time of his appointment invalid, unless the court directs otherwise. Things could get messy if the court does not intervene.

‘Judicial capture’

The MK party’s third contention, namely that the decision by the President to establish the judicial commission of inquiry was irrational because it was headed by a judge who would have to investigate the claims of “judicial capture”, is at best misguided.

I assume the applicants are aware that this part of their case is hopeless, and suspect that it was included to provide a platform for MK leaders to continue their campaign to discredit the judiciary and pre-emptively lay the groundwork for discrediting any findings the commission of inquiry might make.

The MK party contends that, given Mkhwanazi’s vague allegations, we cannot assume that any judge is either guilty or innocent of the charges of judicial capture “until it has been properly and independently investigated, confirmed or refuted”.

This means the President has appointed a judge who could potentially have to investigate himself. It would also amount, according to MK, to the judiciary investigating itself. The party further argues that it would be in breach of the Constitution for the commission to investigate the allegations of judicial capture as the Constitution only empowers the Judicial Service Commission (JSC) and/or the Magistrates Commission to investigate judicial conduct.

As the leader of the MK party should know from personal experience, the first claim does not hold water. Judges are presumed to be impartial and have a duty to recuse themselves from hearing a matter if they are conflicted.

A party which has evidence to the contrary should apply for the recusal of the specific judge. Our courts have long dismissed vague and unsubstantiated claims of this sort, and I have no doubt that Justice Mbuyiseli Madlanga would do the same if such an application were made for him to recuse himself.

As for the second argument, the JSC (and no other body) is authorised to investigate the conduct of individual judges against whom specific allegations have been made, but there is nothing in the Constitution that prohibits a commission of inquiry from looking into allegations of judicial capture or corruption, provided that any such investigation does not threaten the independence of the judiciary.

It is not a foregone conclusion that the Constitutional Court will decide to hear the case, nor is it clear what the President might do if it emerges that valid constitutional concerns will scupper his scheme to smuggle a highly competent person into his otherwise underwhelming Cabinet.

I for one, hope the President reverses course and decides to appoint  Cachalia as a Cabinet minister in the normal constitutionally compliant way.

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