Captured Court dismisses MK Party application

As expected, the Constitutional Court in Johannesburg has as effectively dismissed the case brought by MK Party challenging President Cyril Ramaphosa's decision to appoint a non-Member of Parliament.
The Constitutional Court has dismissed the urgent application for direct access to have police minister Senzo Mchunu's leave and the appointment of Firoz Cachalia as acting minister set aside.

In dismissing the application, the court said the case does not engage its jurisdiction and therefore direct access was refused.
The decision was made on Thursday after the MK Party brought an urgent application challenging Ramaphosa's move by placing Police Minister Senzo Mchunu on special leave and announced Professor Firoz Cachalia as the acting Police Minister.
This is the same Constitutional Court that granted Justice Zondo direct access and allowed Zuma to be jailed without trial.

Zondo was not asked why he did not go to the magistrate's court first.
MK Party argued that the move was unconstitutional, flagging serious legal and procedural violations.

Mchunu was removed following allegations explosive allegations of political interference and unlawful conduct were made by KwaZulu-Natal Police Commissioner Lt-Gen. Nhlanhla Mkhwanazi.

On Wednesday, at the apex court, MK Party's legal representative Dali Mpofu SC described Ramaphosa's actions as "unconstitutional and ultra vires."

He told the court that Ramaphosa overstepped his constitutional powers by placing Mchunu on "leave of absence" and then delegating his ministerial duties to someone outside Cabinet.

According to Mpofu, these actions contravened Section 98 of the Constitution, which governs the appointment of acting ministers when a Cabinet member is absent or incapacitated.

"The appointment of Cachalia is plainly unlawful," Mpofu said.

"Section 98 mandates that only a Cabinet member may be appointed to act in another's place. Ramaphosa's failure to comply is a breach of a constitutional obligation."

Before the court released its ruling, MK Party said it would not be surprised if the Constitutional Court rules in favour of President Cyril Ramaphosa after "unlawfully" placing Police Minister Senzo Mchunu on special leave — accusing the judiciary of being "captured" and complicit in political manoeuvring.

MK Party insisted the move was unconstitutional, flagging serious legal and procedural violations.

"Well, we know that, as you heard KZN Police Commissioner Lt-Gen Nhlanhla Mkhwanazi saying, the judiciary is complicit and implicated. So, that alone is telling," said MKP national spokesperson, Nhlamulo Ndhlela.

MKP had hoped that the court would consider the merits of the case and not politicise the issue. 

Citing sections 91 and 98 of the Constitution, Ndhlela contended that only a current member of Cabinet can temporarily assume the powers of the police minister. "Section 98 is very clear," he argued.