The lawyers of the Economic Freedom Fighters (EFF) have written a letter to President Cyril Ramaphosa stating that he does not have the power to place the minister of police, Senzo Mchunu, on a leave of absence.
England Slabbert Attorneys Inc. lawyer Angelike Charalambous said that Ramaphosa is empowered to only exercise powers conferred upon him in terms of the Constitution of the Republic of South Africa.
This comes after KwaZulu-Natal police boss Lieutenant-General Mkhwanazi alleged that Mchunu interfered in critical police investigations. Mkhwanazi also accused Mchunu of allowing his associates — who are not in the employ of the SAPS — to interfere in police work.
Section 91(2) of the Constitution
“The president’s powers in respect of the appointment and dismissal of the Cabinet are set out in section 91(2) of the Constitution, which states that: ‘the President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them’.
“The import of this section is that the Constitution empowers the president to appoint ministers, to assign them powers and functions, and gives him the discretion to dismiss them. 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’,” said Charalambous.
She said that it was ostensible that the real reason for the leave of absence relates to the gravity of the allegations made and the need to safeguard the integrity of the government while the commission of inquiry proceeds.
“It was the president’s decision to place the Hon. Mchunu, MP, on a leave of absence, not the other way round. The effect of the leave of absence is to strip the Hon. Mchunu MP of the powers and functions previously assigned to him. This is akin to a precautionary suspension by an employer. Although the Hon. Mchunu, MP is not an employee.
No power to suspend minister
“The president does not have the power under the Constitution to suspend a minister or place them under a leave of absence. If he has lost confidence in their ability to fulfil the obligations he has assigned to them, his power is to reassign them a different portfolio, reshuffle, or dismiss them from the cabinet,” said the lawyer.
She added by saying that the consequence of Ramaphosa’s decision to appoint acting ministers such as the ANC chairperson, Gwede Mantashe, and Professor Firoz Cachalia to the position still borders serious concerns, as Mchunu will still remain as a member of the cabinet, despite him being removed from his ministry post.
“Our client is specifically concerned at the fact that a minister without powers or functions would be entitled to additional remuneration 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,” she said.
Charalambous also said that what Ramaphosa did by not sending Mchunu packing was a grave concern.
Same salary for two people
“This unlawfulness is compounded by the fact that Professor Cachalia, if/when appointed, will also be entitled to the same minister’s salary and other perks and benefits, including the appointment of special advisors and staff.
“The taxpayer would be paying twice but for one person to do the job of Minister of Police whilst the other is not required to do anything at all.
“In our client’s respectful view, this is an abuse of the president’s constitutional authority. And it makes a mockery of good governance,” she said.
The EFF, through its lawyer, said that Ramaphosa should clarify whether he intends to appoint Cachalia as an acting member of cabinet or not. It stated that this was an impression created by the state president’s address.
Decision is irrational
“The president’s decision not to dismiss the Hon. Mchunu, MP, is irrational. And it breaches the doctrine of legality. Considering that the allegations are of such a serious nature that the president effectively removed him from office in all but name.
“It is mutually destructive for the president to, on one hand, remove the minister in the manner described, because of the seriousness of the allegations. Whilst at the same time deny that these allegations warrant the Hon. Mchunu’s dismissal,” said Charalambous.
