01-08-2025
ConCourt dismisses MK Party's case on Mchunu, Madlanga commission
The president's counsel, Kate Hofmeyr SC, said this case did not involve constitutional obligations of the president but was about whether he had exercised his constitutional powers. It was a 'stock standard' challenge to the conduct of the president, which belonged in the high court, she said, adding that the constitution is clear that when it came to conduct of the president, the ConCourt was an appeal court — it should not be the first and last court to hear and decide.
Earlier on Wednesday Zuma's counsel, Dali Mpofu SC, was questioned by several judges on which constitutional obligation the president had failed to fulfil in this case. He said the president had failed to uphold and defend the constitution. This, coupled with his failure to fulfil other obligations, brought it within the court's exclusive jurisdiction, he argued.
Mpofu was pressed by some of the justices as to exactly which other obligations the president had failed on. He said when the president was given powers, such as the power to assign acting functions, they went hand in hand with obligations. So when the president assigned the police minister's powers to Cachalia, he had an obligation to ensure these powers were assigned lawfully.
On direct access, Hofmeyr said 'many cases involve matters of grave constitutional significance', but the constitutional scheme directed that they begin in the high court.
The ConCourt had spoken in earlier judgments of its crippling workload, she said. 'If this court can be the court that every litigant comes to when it alleges there has been some irregular exercise of power by the president, all the other cases that legitimately must be here get shifted down the roll.' This had implications for the administration of justice, she added.
Unless the ConCourt 'sets its limits in this case, we would say the administration of justice more broadly may be imperilled', said Hofmeyr.
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