Former president Jacob Zuma’s and the MK Party’s urgent high court challenge to the establishment of the Madlanga commission, the placing of police minister Senzo Mchunu on “a leave of absence” and the appointment of Prof Firoz Cachalia as acting police commissioner is scheduled to be heard on September 18 by three judges in the Pretoria high court.
The hearing date was set after a case management meeting with Gauteng deputy judge president Aubrey Ledwaba on Wednesday.
Zuma and the MK Party approached the high court after they were turned away by the Constitutional Court on July 31. After hearing full argument from all sides, the ConCourt decided their case did not fall within its exclusive jurisdiction. It also did not warrant being heard directly by the apex court.
In court papers to the Pretoria high court, Zuma and the MK Party maintained the case is urgent. They want the court to “suspend the operation and/or effectiveness” of President Cyril Ramaphosa’s decisions to establish the commission, place Mchunu on leave and appoint Cachalia.
The matter involves very serious and unprecedented allegations of executive and judicial capture which, if true, constitute a threat to the very democracy prevailing in South Africa
— Jacob Zuma, MK Party leader
However, in his answering court papers, Ramaphosa insisted the litigation was not urgent and that the application should be struck from the roll on this basis.
In court papers, Zuma said the case was “self-evidently” urgent. The Madlanga commission had already begun its work, Cachalia had assumed office and would be making decisions that “affect the security of the people of South Africa”, and Mchunu continued to earn a salary and “enjoy other expensive privileges”.
All these decisions were illegal, said Zuma.
“The matter involves very serious and unprecedented allegations of executive and judicial capture which, if true, constitute a threat to the very democracy prevailing in South Africa,” said Zuma. It is “impossible to imagine a greater catastrophe” if the allegations are true and the matter is not treated urgently..
But in his answering affidavit, Ramaphosa said to jump the queue at court, Zuma and the MKParty must show they would be denied substantial redress if their case were to be dealt with like any other case.
While Zuma made “sweeping allegations” and used “emotive language and conjecture”, there was no basis to conclude he and the MK Party would be denied substantial redress if the case was heard in the ordinary course. It is not uncommon for the courts to adjudicate on the validity of appointments after they had happened, he said.
Ramaphosa added that the urgency here was also self-created. Zuma and the MK Party decided to go to the ConCourt when they should have gone to the high court. Then, after the ConCourt refused their application, they “engaged in unnecessary correspondence with the chief justice”, asking the apex court for reasons for its decision.
This was a reference to a letter from the MK Party’s attorneys, attached to the court papers, which said the ConCourt’s decision was “a failure of justice”. It asked for reasons for the ConCourt’s decision so that the MK Party could apply to the court for it to reconsider its decision.
However, a letter from the ConCourt’s registrar responded that the court could not give a commitment as to when reasons would be furnished, given the justices’ other commitments, including a full roll of cases for hearing in the third term.
Zuma also sent a list of questions to Ramaphosa on August 4 asking him a series of questions, including:
- the exact dates and times Ramaphosa decided to place Mchunu on leave and to appoint Cachalia;
- what a “minister designate” was from a constitutional point of view; and
- whether Cachalia was a “minister”, a “minister designate” or an “acting minister” when he was appointed.
Ramaphosa responded by refusing to answer the questions, saying the information Zuma sought was already in the public domain or court papers. Otherwise, Zuma was the leader of the MK Party, which could ask the questions in parliament, said Ramaphosa.
Zuma said the president’s failure to give reasons had “legal consequences” and following Ramaphosa’s response, the application to the high court was “very promptly” finalised.
But Ramaphosa said this correspondence was “nothing more than a contrived attempt to manufacture new facts that they would be able to rely on in support of an urgent approach to this court. No new facts, however, have genuinely arisen. The substance of this application is identical to the substance of the application that served before the Constitutional Court.”
With a date allocated already, it remains to be seen whether the president's legal team will continue to pursue his urgency argument. In his court papers, he also addressed the merits of the case — along the same lines they were argued in the ConCourt.
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