Zuma says Ramaphosa has no constitutional power to suspend Mchunu

Former president Jacob Zuma and the MK party have responded to President Cyril Ramaphosa’s answering affidavit, which claims that the MK party is attempting to score political points against him through its Constitutional Court challenge to his decision to place Police Minister Senzo Mchunu on leave.

Zuma and the MK party filed an urgent application on 18 July seeking to invalidate Mchunu’s leave of absence and Wits law Professor Firoz Cachalia’s appointment as acting police minister.

Court challenge

They are also challenging Ramaphosa’s establishment of a judicial commission of inquiry to investigate allegations of corruption in the police.

KwaZulu-Natal (KZN) Provincial Commissioner Lieutenant General Nhlanhla Mkhwanazi made explosive allegations during a media briefing this month, accusing Mchunu and Deputy National Commissioner for Crime Detection, Shadrack Sibiya, of political interference in police operations.

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Dealing with ministers

In Ramaphosa’s answering affidavit on Wednesday, the president argued that the constitution gives him “a wide berth as to how to deal with ministers”.

“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.

“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,” Ramaphosa said.

‘Constitutional power’

In response to Ramaphosa’s answering affidavit, which missed the initial deadlines set by Chief Justice Mandisa Maya, Zuma argues there’s no express constitutional power allowing Ramaphosa to impose special leave on Mchunu.

Zuma said there are details in Ramaphosa’s affidavit that Mchunu will not return as minister of police after the commission of inquiry.

“There is nothing said in the president’s affidavit which justified placing Minister Mchunu on ‘special leave’ and thereby cause him to retain his ministerial title, salary and other perks or privileges at the expense of the long-suffering taxpayer.

“There is simply no potential that he will ever return to the portfolio of Minister of Police, irrespective of the outcome of the commission of inquiry. That unlikely eventuality may also be subject to the ongoing criminal investigations against him, as well as the outcomes of the parliamentary ad hoc committee. The ends do not justify the means. All we are left with are ex post facto and illegal rationalisations,” Zuma said.

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Whitfield and Mchunu

Zuma compared it to Ramaphosa axing former deputy minister of trade and industry Andrew Whitfield.

He argues that while the DA’s Whitfield did not admit guilt, contrary to the president’s claim, the allegations against him were also untested.

“For a police minister or any minister to collude with criminals is objectively more serious than travelling abroad without permission.

“It is also plainly false to state that Mr Whitfield ever admitted the allegations against him. The president has produced no evidence of this,” Zuma argued.

Cachalia as acting minister

In the affidavit, Zuma said Ramaphosa “openly dodges” the clear distinction between the power to appoint a minister and the different power to appoint an acting minister.

“The two are plainly not the same. The obfuscatory reference to the credentials of Prof Cachalia is nothing but deflection. For the record, no issue is taken against the professor’s credentials… The issue is whether he was constitutionally qualified to be appointed by the president. The answer is that he was not.”

Mchunu

Zuma’s affidavit also takes direct aim at Mchunu’s version of events, portraying it as “evasive and legally flawed”.

“The minister’s affidavit is a masterclass in evasion – it skirts the core allegations and offers no constitutional basis for the executive’s conduct. The minister’s affidavit is riddled with deflection and fails to confront the gravity of the allegations raised by Lieutenant General Mkhwanazi.”

Judicial commission

Zuma’s argument about the Judicial Commission of Inquiry focuses on its judicial nature and the risk of bias.

While Zuma does not oppose the idea of a commission itself – and agrees it may be necessary – what he challenges is the appointment of a judge (Justice Mbuyiseli Madlanga) to chair it, given that the judiciary is among the institutions implicated by Mkhwanazi.

“It is irrational and unconstitutional to appoint a judge to chair a commission that is mandated to investigate allegations implicating members of the judiciary. This violates the principle that no one should be a judge in their own cause.”

Impartiality

Zuma wraps up his argument by framing the challenge not as defiance, but as a constitutional safeguard – emphasising fairness and legality in the mechanisms of oversight.

“I make this application not to avoid accountability, but to ensure that the process by which accountability is demanded is itself lawful, impartial, and consistent with the constitution.”

Zuma argued that appointing a judge to lead a commission investigating the judiciary violates the constitutional principle of impartiality – specifically, that “no one should be a judge in their own cause”.

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