MK Party legal representative advocate Dali Mpofu SC on Wednesday insisted that President Cyril Ramaphosa does not have the constitutional power to place any minister on special leave for whatever reason.
This is the main argument Mpofu delivered at the Constitutional Court case opposing Ramaphosa’s decision to place Police Minister Senzo Mchunu on special leave.
After being grilled by the Constitutional Court justices for two hours, Mpofu would make an extraordinary submission right at the end when pressed by Justice Owen Rogers.
Mpofu is representing the official opposition party and its president, Jacob Zuma, in the matter, seeking to declare Ramaphosa’s decision to place Mchunu on special leave unlawful.
The justices were at pains trying to understand what should happen in the event of a minister being unable to perform their duties for one reason or another.
Special leave not provided for
Mpofu was adamant that constitutionally, special leave or leave of absence was not provided for.
In his strongly held view, the president’s prerogative was to hire and dismiss.
But Rogers pushed him to a corner, arguing about what must happen in the event of a protracted sick leave taken by a member of the national executive if the president decides to bring in someone from outside of the cabinet.
“So, there is neither the power to place on special nor the power to grant special leave on request?” asked Rogers.
Mpofu responded: “Justice Rogers, I am saying even if there was a power to grant, which I do not concede, there is certainly no power to place forcefully.”
Rogers pressed on: “So if a cabinet minister gets a cancer diagnosis and wants to take six months off for treatment and requests special leave, you are saying the president’s only permissible response is to dismiss them from the cabinet?”
Mpofu stuck to his guns: “In the best interests of the country, what he can do is to remove that minister and assign those powers to somebody else.”
The justices also tried to ponder a question with Mpofu about other democracies similar to South Africa across the world where ministers could be placed on special leave with express provision by the constitution.
Mpofu was having none of that.
Wasteful expenditure
“We cannot just do it because it is done in other countries; that is why we have our constitution. Otherwise, we might as well just go according to the constitutions of the world.
“Our case is that even if the power to grant exists for argument’s sake, certainly the power to impose a leave of absence on someone who has not asked for it, which is what happened in this particular case, does not exist.”
Mpofu had opened his argument, stressing points about the wasteful expenditure that will be incurred by the commission of inquiry established by Ramaphosa after placing Mchunu on special leave.
He argued that commissions were expensive, useless exercises that never bear any tangible results.
To support his argument, he impressed upon the apex court justices to look no further than the state capture inquiry that was chaired by retired chief justice Raymond Zondo.
Mpofu said it was reasonable to assume that the commission that will investigate corruption in the criminal justice system was likely to follow the same path.
Mpofu warns commissions are expensive
Just like the Zondo commission, he said, the Madlanga commission was also likely to go on indefinitely for four years just like the Zondo commission, and South Africans were simply fatigued of such time-buying exercises, which come with a hefty price tag.
“In the context of this case, is it in the best interest of our people that we have yet another multibillion-rand commission, which may or may not yield any outcomes, so that the community and the public can be sanitised and numbed into forgetting?
“By the time the commission comes in three to four years time, everyone would have forgotten what the issues are,” said Mpofu.
He continued: “Is it in the best interest of our people to have two ministers holding effectively the same portfolio, being paid over the next three to four years two salaries, one sitting at home doing nothing while the other one is acting in his place?
“Closer to home, is it in the best interests of our people to have the president doing all these manoeuvres to the extent that we now have three ministers of police, one on leave of absence, and the other one acting in the place of the acting one? Is that what the people want, on top of the already bloated cabinet?”
Mpofu said the court can only imagine how expensive the Madlanga commission would be given the scale of the work it must do if the Zondo commission ended up costing a staggering R2-billion.
