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Zuma and MK Party to contest president's decision to suspend Mchunu in apex court

Zuma and MK Party to contest president's decision to suspend Mchunu in apex court

The Herald3 days ago
The MK Party has gone to the Constitutional Court seeking to have President Cyril Ramaphosa's decision to suspend police minister Senzo Mchunu revoked.
This comes after KwaZulu-Natal police commissioner Nhlanhla Mkhwanazi's explosive allegations that Mchunu was interfering with police investigations.
In an address to the nation last Sunday, Ramaphosa announced he had suspended Mchunu, was appointing law academic Prof Firoz Cachalia as acting police minister effective from August 1 and setting up a judicial commission of inquiry to be headed by acting deputy chief Justice Mbuyiseli Madlanga to investigate the allegations.
On Tuesday he appointed minister of mineral and petroleum resources Gwede Mantashe as acting minister of police with immediate effect until Cachalia takes office.
In court papers the party challenged Ramaphosa's decisions as 'irrational', 'invalid', and inconsistent with obligations in the constitution and presidential oath of office, calling for the three executive decisions to be set aside.
'Declaring that the conduct or decisions of the president to establish the judicial commission of inquiry is irrational and/or inconsistent with the obligations in section 83(b) of the constitution and/or the presidential oath of office, read with sections 84(2)(f), 177, 178(4) and/or 180 of the constitution and is invalid,' the court papers read.
Former president Jacob Zuma is the first applicant and the MK Party the second applicant, while respondents cited in the application are Ramaphosa, Mchunu, Mantashe, Cachalia and Madlanga.
In the urgent application the party has asked Ramaphosa to make 'constitutionally compliant decisions within 15 days'.
It has given the respondents until 10am on Monday to indicate if they will oppose the application and until 5pm on Tuesday to lodge their response. The party will then file its reply by Thursday and parties should deliver heads of argument by Friday.
The court action came as MK Party supporters marched to the Union Buildings and police headquarters in Pretoria on Friday to hand over memorandums calling for Mchunu to be prosecuted and Mkhwanazi protected.
Similar marches were held nationally during the week and the MK Party has said it will continue with the protests.
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MK party's ConCourt challenge to Mchunu's removal raises important constitutional law issues
MK party's ConCourt challenge to Mchunu's removal raises important constitutional law issues

Daily Maverick

time9 hours ago

  • Daily Maverick

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

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. DM

Ramaphosa axes Nkabane as Higher Education Minister after Seta appointments saga
Ramaphosa axes Nkabane as Higher Education Minister after Seta appointments saga

Daily Maverick

time10 hours ago

  • Daily Maverick

Ramaphosa axes Nkabane as Higher Education Minister after Seta appointments saga

Buti Manamela has been announced as the new Minister of Higher Education and Training. President Cyril Ramaphosa has removed Minister of Higher Education Nobuhle Nkabane from his Cabinet. Nkabane's sacking comes amid allegations of corruption over the appointments of the chairpersons of the 21 Sector Education and Training Authorities (Seta) boards that included ANC members. In a statement on Monday night, 21 July, the Presidency announced that Ramaphosa had appointed Buti Manamela as the new Minister of Higher Education and Training. Manamela was previously deputy minister of Higher Education and Training. 'President Cyril Ramaphosa has removed Dr Nobuhle Nkabane from the role of Minister and Higher Education and Training and has, in terms of Section 91 (2) of the Constitution of the Republic of South Africa, appointed Mr Buti Kgwaridi Manamela, Minister of Higher Education and Training. Mr Manamela was, until this appointment, serving as Deputy Minister of Higher Education and Training, a role he held from the 6th administration,' read the statement. Ramaphosa has appointed Dr Nomusa Dube-Ncube as deputy minister. 'Dr Dube's long government leadership experience includes serving as MEC for Cooperative Government and Traditional Affairs and Premier of the Province of KwaZulu-Natal, amongst other roles,' the statement said. Ncube was among the Seta board chairpersons who were to be appointed by Nkabane. Nkabane later withdrew the contentious appointments after a public outcry. President @CyrilRamaphosa has, in terms of Section 91 (2) and Section 93 (b) of the Constitution, appointed Mr. Buti Kgwaridi Manamela and Dr Nomusa Dube-Ncube, as Minister and Deputy Minister of Higher Education and Training, respectively. — The Presidency 🇿🇦 (@PresidencyZA) July 21, 2025 In a statement announcing her departure, Nkabane thanked the President 'for entrusting her with the responsibility' of serving as Higher Education Minister. 'It has been a privilege to lead this important portfolio, and I am grateful to the sector and the people of South Africa for their support and for allowing me to serve in this capacity. I remain committed to the service of our people and the advancement of our country's development,' she said. Nkabane was sworn in as Higher Education and Training Minister on 3 July 2024. Her removal brings to an end a tumultuous tenure, marred by allegations of corruption and accusations that she misled Parliament amid the contentious Seta boards appointments that sparked public outrage and legal and parliamentary scrutiny. Minister @Dr_NobuhleN would like to take this opportunity to sincerely thank the President of the Republic of South Africa, H.E. Cyril Ramaphosa, for entrusting her with the responsibility to serve as Minister of Higher Education and Training. — HigherEducationZA (@HigherEduGovZA) July 21, 2025 Several of the 21 Seta board chairpersons appointments were linked to ANC politicians, including Gwede Mantashe's son, Buyambo Mantashe, who had been appointed chairperson of the Manufacturing, Engineering and Related Services Seta. Other contentious appointees were Dube-Ncube and former ANC KwaZulu-Natal provincial deputy chairperson Mike Mabuyakhulu. This led to MPs demanding that Nkabane account to the parliamentary committee on higher education over the appointments. However, Nkabane provided responses that misled Parliament – claiming that she established an independent panel to assist her in making the appointments and that no corruption was involved. Nkabane disclosed the names of five panellists who assisted her – advocate Terry Motau SC as chairperson, her chief of staff Nelisiwe Semane, Seta director Mabuza Ngubane, the department's deputy director-general Rhulani Ngwenya and adviser Asisipho Solani. However, in shocking revelations, Motau revealed that he had never been formally appointed to chair the panel. He said Nkabane was aware that he was not part of the panel. Semane, Ngubane and Ngwenya also denied their involvement. On Friday, 18 July, Nkabane snubbed the parliamentary committee meeting and avoided accountability over the independent panellists' issue and the process of appointing the chairpersons. Only Ngubane and Motau appeared to testify and said that Nkabane had indeed misled Parliament. Previously, Daily Maverick reported that Ramaphosa asked Nkabane to report to him about her behaviour in Parliament, including chewing food while responding to questions from MPs about the now withdrawn Seta appointments. Reactions The DA has laid charges against Nkabane that include fraud and statutory offences under section 26 of the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act 4 of 2004. The party welcomed Ramaphosa's axing of Nkabane. However, DA national spokesperson Karabo Khakhau told Daily Maverick that Ramaphosa had taken too long and that people deserved better. 'Our call as the Democratic Alliance has been to make sure that the appointment of people to Seta's spaces is detoxed from cadre deployment so that we're able to see the realisation of the true mandate of the Seta state itself. So this is what we want to see. Minister Nabane lied, and she committed fraud. 'So even though the President fired her, our case that is now being investigated by the Hawks is still going to be pursued. The same way Tony Yengeni was found guilty, Nobuhle Nkabane must be found guilty. Equally, she must face jail time,' said Khakhau. An ANC statement extended its 'gratitude' to Nkabane for her service, and wished her well. The party welcomed the appointments of Manamela and Dube-Ncube. 'The ANC is confident that this new leadership team will advance access, equity and quality in the higher education sector… These appointments reaffirm our commitment to [a] capable, ethical, and developmental state,' it said. The MK party noted Nkabane's 'necessary' and 'long overdue' removal from office. 'The former minister's failure to account for the irregular and unlawful allocation of the … Seta board positions raised serious questions about the so-called Government of National Unity's governance, their lack of transparency and the severe political interference that has become quite characteristic of the former liberation movement. 'It was evident that the appointments disproportionately favoured individuals with strong ties to the ANC: a pattern that cannot be ignored in a constitutional democracy such as South Africa,' read a statement from the party. DM

Manamela steps in as Nkabane gets the boot
Manamela steps in as Nkabane gets the boot

IOL News

time10 hours ago

  • IOL News

Manamela steps in as Nkabane gets the boot

Political parties have expressed approval of the decision to remove Dr Nobuhle Nkabane from her role as Minister of Higher Education and Training. One party has accused her of showing an "unrepentant disregard for what it means to serve the people of South Africa." Nkabane found herself at the centre of a parliamentary storm when she failed to attend a crucial meeting of the portfolio committee on Friday. The portfolio committee had invited Nkabane and the panel members who recommended the now-cancelled appointments of the chairpersons for the Sector Education and Training Authorities (SETA) boards. Advocate Terry Motau and Chief Director for SETA Coordination, Mabuza Ngubane, attended the meeting, but Nkabane was notably absent. Also present were Deputy Ministers Buti Manamela and Mimmy Gondwe, whom the committee wanted to question about their roles in the appointments. However, in a swift response to recent controversies, President Cyril Ramaphosa has appointed Manamela as the new Minister of Higher Education and Training. The decision follows Nkabane's ousting, which she announced in a brief statement on Monday afternoon. Nkabane expressed her gratitude to President Ramaphosa for the opportunity to serve in such a critical role, stating, "I would like to take this opportunity to sincerely thank the President of the Republic of South Africa, H.E. Cyril Ramaphosa, for entrusting me with the responsibility to serve as Minister of Higher Education and Training." Minutes after her statement, Ramaphosa announced Manamela's appointment as well as Dr Nomusa Dube-Ncube, who will be serving as the Deputy Minister of Higher Education and Training. The reshuffling comes as Nkabane faced intense scrutiny, particularly for her alleged misleading of Parliament regarding the process of appointing the SETA board members. Reports emerged indicating that the list of appointees was heavily influenced by affiliations with the African National Congress (ANC), incorporating figures such as Buyambo, the son of Mineral Resources Minister Gwede Mantashe. Last week, Nkabane came under fire after failing to appear before Parliament to account for the controversial appointments. She instead opted to attend a GBV event in the Eastern Cape. Nkabane sent a last-minute apology to the portfolio committee, citing a gender-based violence (GBV) event at a Technical and Vocational Education and Training (TVET) college in the Eastern Cape as the reason for her absence. Her apology was rejected by committee chairperson Tebogo Letsie. Letsie said after receiving the letter, he told Nkabane that he is not accepting her apology because it does not make sense for her to be absent from the meeting. Nkabane was expected to brief members again on the SETA board selection process, which was eventually reversed. Many of the appointees were allegedly linked to the ANC, which raised concerns over political interference and nepotism. Although Nkabane previously told MPs that the selections were made by an 'independent' panel chaired by Advocate Terry Motau, Motau denied any involvement. Political parties were quick in their response to Nkabane's axing. Welcoming the removal of Nkabane, RISE Mzansi said: ''Nkabane epitomised political arrogance and showed an unrepentant disregard for what it means to be in service to the people of South Africa. While she no longer serves as a member of the Executive, she must still be held accountable by the Joint Committee on Ethics and Members' Interests for misleading Parliament and the people of South Africa. ''We trust that long-serving Deputy Minister of Higher Education and Training, Buti Manamela, who has been elevated to the position of Minister, will bring much needed stability and humility to the portfolio, while ensuring that its R142-billion budget contributes to educating and training a new generation of leaders who will create jobs, build the economy and contribute to the intellectual and knowledge base of the country.'' Calling Nkabane's removals a ''stunning blow against ANC cadre corruption,'' DA National Spokesperson, Karabo Khakhau, said: ''Seeing one ANC Minister depart Cabinet under storming clouds of lies, deceit, cadre deployment corruption and a Hawks Investigation is a first step to restoring our faith that the GNU will not tolerate corruption. ''Our demand to President Ramaphosa was for him to take action against the seriously compromised, corrupt and nefarious in the ANC, and the firing of Nkabane is the first step for him.'' uMkhonto weSizwe (MK) Party said in a statement that the removal of Nkabane was "necessary and long overdue". "The former Minister's failure to account for the irregular and unlawful allocation of Sector Education and Training Authority board positions raised serious questions about the so-called Government of National Unity's governance, their lack of transparency and the severe political interference that has become quite characteristic of the former liberation movement." I IOL News Additional Reporting by Staff Reporter

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