By Simon Nare
President Cyril Ramaphosa has defended his decision to place embattled Police Minister Senzo Mchunu on a leave of absence, arguing that as much as he has the power to hire and fire ministers, he is equally empowered to place them on leave.
Ramaphosa’s legal representative, Advocate Ngwako Hamilton Maenetje, told the Constitutional Court on Wednesday that contrary to arguments by opposing parties, the president could place a minister on leave if he was facing serious charges that needed to be investigated.
The uMkhonto weSizwe Party has dragged the president to the highest court in the land after Ramaphosa refused to accede to its demands to fire Mchunu. He has appointed Firoz Cachalia as acting minister.
Mchunu has been placed on special leave pending the outcome of a Judicial Commission of Inquiry into allegations — made by KwaZulu-Natal police commissioner Nhlanhla Mkhwanazi — that he colluded with criminal syndicates and interfered in sensitive police investigations.
Maenetje admitted that the executive power of the president did not include expressed powers to place a minister on leave or to suspend a minister.
However, he invited the court to determine the implied power that authorised the president to place Mchunu on leave for the period of the investigation.
Maenetje said a distinction should be drawn between Mchunu’s request to be placed on special leave and the decision by the president to place him on special leave.
He added that Mchunu had accepted the decision to be placed on special leave.
Maenetje argued that the president was within his right to rely on ancillary powers to place Mchunu on special leave.
He said the apex court must rule on the implied powers which Ramaphosa had used to take the action against Mchunu.
“That existing power can be implied power or ancillary power because it could be a primary implied power. Or it could a power implied because it is ancillary incidental to the primary power,” Maenetje said.
Advocate Kate Hofmeyer, also arguing for Ramaphosa, said the Constitutional Court had no jurisdiction to rule on the matter.
“This matter does not fall within this court’s exclusive jurisdiction. Very few matters do, and this is not one of them,” she said.
Hofmeyr also argued that even if the apex court was to entertain the MKP case, it was common cause that Ramaphosa enjoyed broad discretion to appoint and dismiss ministers.
“That power, plainly, includes the lesser power of placing those ministers on leave while serious allegations of impropriety are being investigated. The Constitution gives the president the power to decide how to manage his Cabinet.
“The wisdom of the choices he makes is to be judged by the democratic process and not the courts,” Hofmeyr argued.
However, MKP legal representative Advocate Dali Mpofu said placing the minister on special leave was unconstitutional.
He argued that the president was only empowered to hire and fire ministers, and could not treat them as if they were employees.
“By the way, there is no such thing as placing someone on leave of absence. So, you can’t have a power to do something that is senseless. Leave of absence by definition is something that you ask for.
“It’s not something that can be imposed on you. So, leave of absence is something that is granted. The power to place someone on leave of absence is non-existent on its own right without it being linked to the power to dismiss,” argued Mpofu.
The court reserved judgment on the matter.
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