By Simon Nare
The Economic Freedom Fighters is legally challenging President Cyril Ramaphosa’s decision to place embattled Police Minister Senzo Mchunu on special leave other than dismissing him outright as empowered by the Constitution.
In a letter by its lawyers addressed to Ramaphosa, the EFF argues that he did not have the powers to place a Cabinet minister on leave as stipulated in the Constitution.
The England Slabbert Attorneys’ letter marked “extremely urgent”, further argues that rather, the Constitution allows the president to appoint deputy ministers and ministers and assigns them powers and functions. He may dismiss them at his discretion.
“Section 91(2) of the Constitution does not confer on the president a power, whether expressed or implied, direct or indirect, primary or incidental, to place a minister ‘on a leave of absence’.
“It is apparent that the real reason for the leave of absence pertains to the gravity of the allegations made and the need to safeguard the integrity of the government while the commission of inquiry proceeds,” reads the letter.
“If he has lost confidence in their ability to fulfil the obligations he has assigned to them, his power is to re-assign them a different portfolio reshuffle or dismiss them from the Cabinet.”
By placing Mchunu on a leave of absence, the president has effectively stripped the minister of his powers and functions, and this was akin to a precautionary suspension by an employer and Mchunu as an MP was not an employee.
It added that a minister without powers and functions was unlawful, and with the appointment of an acting police minister, who was Prof. Firoz Cachalia from net month, it meant there would be two ministers for the same position with full pay while the other one would not be performing any duties.
In the meantime, Minerals and Petroleum Resources Minister Gwede Mantashe is the acting police minister.
The EFF said it was concerning that a minister without powers and functions would be entitled to pay and benefits of a member of the executive at the expense of the public but without actually performing the job of a Cabinet member.
“It is inconceivable that the Constitution was designed to permit the appointment of Cabinet ministers who do not discharge the power or perform the function of a Cabinet minister, but retain the full pecuniary and potentially political benefits thereof.
“We request the president to confirm whether The Hon. Mchunu, MP, will be exercising any powers and or discharging any functions while on his leave of absence,” it said.
Further compounded by the “unlawful decision”, was the fact that when Cachalia was appointed, he would also be entitled to the same minister’s salary and other perks and benefits including the appointment of special advisors and staff.
“In our client’s respectful view this is an abuse of the president’s constitutional authority and makes a mockery of good governance. Once appointed to the Cabinet, Professor Cachalia will, in law, be of equal rank to The Hon. Mchunu, MP, and be able to discharge the powers or perform any functions assigned to him by the president,” said the letter.
The EFF argued that Cachalia could not be appointed to “act” unless he was a full member of Cabinet.
It demanded that Ramaphosa clarify whether he intended to appoint him as an “acting” member of cabinet or not, as that was the impression created by the president’s address on Sunday.
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