Issued by Lusanda Mahkuntsu on behalf of the FW de Klerk Foundation on 12/12/2025

Introduction

This case concerned whether the Constitutional Court had jurisdiction to hear a challenge brought by former President Jacob Zuma and the uMkhonto weSizwe Party (“MKP”) against certain decisions of President Cyril Ramaphosa. They argued that President Ramaphosa had acted outside of his constitutional powers when he suspended the Minister of Police, appointed an acting minister from outside Parliament and, when he had established a judicial commission chaired by a sitting judge. The Court, however, did not decide the lawfulness of these actions. Instead, it focused on whether the matter fell within its exclusive jurisdiction or warranted direct access. This case note examines why the Court found that it did not.

Facts

On 13 July 2025, President Cyril Ramaphosa placed the Minister of Police, Senzo Mchunu, on a leave of absence. This followed allegations that a criminal group had infiltrated the police and courts. Thereafter, the President appointed Professor Firoz Cachalia, who was not a member of the Cabinet, as the Acting Minister of Police. The President established a judicial commission of inquiry, chaired by Acting Deputy Chief Justice Mbuyiseli Madlanga. This commission is now known as the “Madlanga Commission”, and it was created to investigate the allegations.

On 18 July 2025, Former President Jacob Zuma and the MKP challenged these decisions by the President on the following basis:

• The President had no constitutional authority to suspend a minister;
• An acting minister cannot be appointed from outside Parliament; and
• It was unconstitutional for a sitting judge to chair a commission investigating the judiciary, because this was irrational (and thus contrary to the rule of law).

Zuma and the MKP approached the Constitutional Court directly, alleging that the President breached section 83(b) of the Constitution. This section requires the President to uphold and respect the Constitution. They argued he ignored this duty when he made the decisions they were challenging.

They asked the Court to use its exclusive jurisdiction under section 167(4)(e) of the Constitution and, if not, to give them direct access under section 167(6)(a) of the Constitution. Section 167(4)(e) means only the Constitutional Court may decide if the President has failed to meet a constitutional duty. Section 167(6)(a) allows people to approach the Court directly, but only in special cases.

Issues

The Court identified three main issues (see paragraph 1 of the judgment):

• May the President place a Minister on leave of absence without express constitutional authority?
• Does the Constitution empower the President to appoint an Acting Minister from outside Cabinet to exercise the powers and functions of a Minister who remains in office, but is unable to perform his duties? And lastly,
• May a Judge chair a commission of inquiry investigating allegations that implicate the judiciary itself?

However, before it could decide the above, the Court first had to decide the threshold question, namely did it have the jurisdiction to hear these issues (see paragraph 4 of the judgment)? This required the Court to decide if Zuma and the MKP had proven that:

• The Court exclusive jurisdiction, or alternatively,
• The Court gives them direct access to it, the apex court, without them first having gone through the lower courts (the High Court and Supreme Court of Appeal) to ventilate the issue.

Law

The Constitution sets clear rules for how the President must act. Sections 83(b) and 96(2) require the President to uphold the Constitution, act honestly and follow the oath of office. Sections 91(2) and 91(3) give the President the power to appoint and dismiss the Cabinet members, but this must still be done lawfully.

Under section 84(2)(f), the President may set up commissions of inquiry to investigate matters of public concern. If a person believes that the President has failed to fulfil a constitutional obligation, section 167(4)(e) gives the Constitutional Court the exclusive power to address that issue. Lastly, section 167(6)(a) allows people to take a matter directly to the Constitutional Court when it is in the interest of justice.

Application

Exclusive jurisdiction (paragraphs 20 through 45)

If Zuma and the MKP could prove that the President had failed to meet a constitutional duty, this would engage the Court’s exclusive jurisdiction. However, Zuma and the MKP’s arguments were scant and devoid of material evidence to sustain a claim of the Court’s exclusive jurisdiction. The Court’s exclusive jurisdiction was thus not engaged.

Specifically, the Court found that they had failed to:

• Identify how the President failed to comply with specific constitutional obligations; and
• Plead the specific constitutional duty that the President allegedly failed to fulfil.

The Court explained that exclusive jurisdiction must be interpreted narrowly to avoid skipping the High Court’s jurisdiction to scrutinise the constitutionality of either the President’s or Parliament’s conduct (section 172(2)(a) of the Constitution). The Court emphasised that its exclusive jurisdiction would only be triggered where the President fails to perform a mandatory obligation. By contrast, the sections that Zuma and the MKP relied on gave the President discretionary powers, they did not impose mandatory obligations. Zuma and the MKP sought to characterise the President’s decisions as a failure to fulfil his constitutional obligations, but the substance of their case is that they disagree with the way in which he exercised his discretionary powers.

Direct access (paragraphs 46 through 53)

Turning to direct access, the Court reaffirmed that it is granted only in exceptional circumstances where it is in the interests of justice. The relevant factors are: The importance of the issue, urgency, potential factual disputes, availability of relief in another court and time and cost considerations (see Zondi v MEC for Traditional and Local Government Affairs).

Applying these factors, the Court held that several considerations weighed against direct access:

• The issues were new and complex and would benefit from first being heard in the High Court, which could develop the record and reasoning; and
• Zuma and the MKP had failed to justify bypassing the High Court and could have sought urgent interim relief there.

The Court said that the alleged urgency did not justify skipping normal procedure, because the High Court was allowed to make an order regarding just and equitable relief after a declaration of invalidity (section 172(1)(b)). Citing Mkontwana v Nelson Mandela Metropolitan Municipality, the Court noted that the importance, or complexity, of a matter does not by itself justify direct access.

Hence, the interests of justice did not favour direct access and the application failed on both jurisdictional grounds.

Conclusion

The Constitutional Court unanimously held that its exclusive jurisdiction was not engaged and that direct access was not justified. The matter was dismissed. The Court made no order as to costs, which means each party was responsible for their own legal costs.