CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 206/25
In the matter between:
JACOB GEDLEYIHLEKISA ZUMA First Applicant
UMKHONTO WESIZWE PARTY Second Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent
MINISTER SENZO MCHUNU Second Respondent
MINISTER GWEDE MANTASHE Third Respondent
FIROZ CACHALIA Fourth Respondent
ACTING DEPUTY CHIEF JUSTICE
MBUYISELI MADLANGA Fifth Respondent
Neutral citation: Zuma and Another v President of the Republic of South Africa and
Others [2025] ZACC 21
Coram: Kollapen J, Majiedt J, Mathopo J, Mhlantla J, Musi AJ, Rogers J,
Savage AJ, Theron J and Tshiqi J
Judgment: Mathopo J (unanimous)
Heard on: 30 July 2025
Order issued on: 31 July 2025
2
Reasons issued on: 3 October 2025
Summary: Exclusive jurisdiction under section 167(4)(e) of the Constitution
— direct access under section 167(6)(a) of the Constitution —
conduct of the President — distinction between exercise of
constitutional powers and failure to fulfil constitutional obligations
— pleaded case insufficient to ground exclusive jurisdiction or
direct access — no order as to costs
REASONS FOR ORDER
MATHOPO J (Kollapen J, Majiedt J, Mhlantla J, Musi AJ, Rogers J, Savage AJ,
Theron J and Tshiqi J concurring):
Introduction
[1] On 31 July 2025 this Court issued an order that its exclusive jurisdiction was not
engaged and refusing direct access. The Court reserved its decision as to costs.
Paragraph 3 of that order stated that reasons would follow in due course. These are the
reasons. At issue in this matter on the merits are three crisp questions. First, may the
President place a Minister on leave of absence without express constitutional authority?
Secondly, does section 91(3)(c) of 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?
[2] These questions arose when the first respondent, President Cyril Matamela
Ramaphosa, announced four interrelated decisions on 13 July 2025: placing the second
respondent, Minister Senzo Mchunu (Minister Mchunu), on leave of absence;
appointing the fourth respondent, Professor Firoz Cachalia (Professor Cachalia) as
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Acting Minister of Police in terms of section 91(3)(c) of the Constitution with effect
from 1 August 2025; appointing Minister Gwede Mantashe, the third respondent, as the
Acting Minister of Police until Professor Cachalia assumed office; and establishing a
judicial commission of inquiry (Commission) to be chaired by the fifth respondent, the
then Acting Deputy Chief Justice Mbuyiseli Madlanga (Madlanga ADCJ). The
applicants challenge the first, second and fourth decisions (the impugned decisions).
Only the President and Minister Mchunu filed papers in opposition to the application.
References in this judgment to the respondents are to these two respondents.
[3] The applicants, Mr Jacob Gedleyihlekisa Zuma and the uMkhonto weSizwe
Party, impugned all three decisions as constitutionally impermissible. They contend
that: the President has no power to suspend a Minister ; a non-Cabinet member cannot
serve as an Acting Minister; and that the judiciary cannot investigate itself. They sought
this Court’s intervention on an urgent basis by invoking our exclusive jurisdiction in
terms of section 167(4)(e) of the Constitution , which reserves for this Court the
competence to determine whether “Parliament or the President has failed to f ulfil a
constitutional obligation”. Alternatively, the applicants sought direct access under
section 167(6)(a) of the Constitution on the basis that exceptional circumstances exist
and it is in the interests of justice to grant such access.1
[4] The preliminary issue that arises is the jurisdictional basis on which this Court
may adjudicate this matter. And, more pertinently, whether the applicants have met the
requirements for this Court to entertain the challenges mounted against the respondents
on the merits, either under our exclusive jurisdiction in terms of section 167(4)(e) or by
way of direct access under section 167(6)(a) of the Constitution. This is a threshold
way of direct access under section 167(6)(a) of the Constitution. This is a threshold
question. To provide proper context for the jurisdictional analysis that follows, I briefly
1 Section 167(6) of the Constitution provides:
“National legislation or the rules of the Constitutional Court must allow a person, when it is in
the interests of justice and with leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other court.”
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outline the factual background and the parties’ submissions before turning to the
dispositive jurisdictional issues which resulted in this Court making the order
previously mentioned.
Background
[5] On 6 July 2025, Lieutenant -General Nhlanhla Mkhwanazi (General
Mkhwanazi), the KwaZulu-Natal Provincial Commissioner of the South African Police
Service, held a media briefing ostensibly convened to address the work of the
Political Killings Task Team (PKTT). In it, he made serious allegations concerning the
existence of a sophisticated criminal syndicate that had allegedly infiltrated law
enforcement, intelligence, and judicial structures in South Africa. These allegations
implicated, among others, the erstwhile Minister of Police, Minister Mchunu.
[6] In response to these revelations, and on 13 July 2025, the President announced
the impugned decisions. On 18 July 2025, the applicants launched this application on
an urgent basis, seeking to impugn all three decisions as constitutionally impermissible.
They asserted that in announcing the impugned decisions, the President failed to fulfil
a constitutional obligation imposed on him. In the main, the applicants sought a
declarator that the President had no constitutional power to place a Minister on leave of
absence, that his appointment of an Acting Minister was ultra vires (beyond his legal
powers), and that the establishment of the Commission as constituted was irrational.
They pressed for urgent relief, arguing that the continued implementation of the
impugned decisions would cause ongoing constitutional harm and undermine the rule
of law.
[7] On Friday, 25 July 2025, the Chief Justice issued directions setting the matter
down for hearing on Wednesday, 30 July 2025. On Thursday 31 July 2025, this Court
made an order in the following terms:
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“The Constitutional Court has considered the application for exclusive jurisdiction and
direct access. It has concluded that the application does not engage the Court’s
exclusive jurisdiction and no case for direct access has been made out.
Order:
1. Direct access is refused.
2. Costs are reserved.
3. Reasons for this order shall be given at a later date.”
[8] This Court cannot consider the merits of the applicants’ substantive challenges
if its exclusive jurisdiction is not engaged and if direct access is not warranted .
Accordingly, these reasons focus solely on these threshold issues.
Before this Court
Applicants’ submissions
[9] The applicants advanced two grounds which, they contend, engage this Court’s
jurisdiction and serve as the basis for their challenge to the impugned decisions. The
first is that the impugned conduct falls squarely within the exclusive jurisdiction of this
Court in terms of section 167(4)(e) which provides that “[o]nly the Constitutional Court
may decide that Parliament or the President has failed to fulfil a constitutional
obligation”. The applicants argue that the President has failed to fulfil his constitutional
obligation to uphold, defend and respect the Constitution as the supreme law of Sout h
Africa, citing the President -specific obligation imposed by section 83(b) read with
sections 91(2), 91(3), 98, 84(2)(f), 177, 178(4) and 180 of the Constitution.
[10] The applicants further rely on alleged breaches of the Presidential Oath of Office
as contained in section 96(2) of the Constitution, read with Schedule 2 thereof. This
was, however, first mentioned in the applicant’s replying affidavit. To buttress their
argument regarding the President’s failure to fulfil a constitutional obligation , the
applicants rely on Von Abo.2 They submit that section 167(4)(e) is engaged as soon as
2 Von Abo v President of the Republic of South Africa [2009] ZACC 15; 2009 (5) SA 345 (CC); 2009 (10) BCLR
1052 (CC).
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a party alleges that the President has failed to fulfil a constitutional obligation, and that
the impugned decisions involve crucial political questions with important poli tical
consequences that touch on sensitive areas of separation of powers.
[11] The second groun d, pleaded in the alternative, is that the applicants should be
granted direct access in terms of section 167(6)(a) of the Constitution. In support of
this alternative basis, they argue that th is application concerns an urgent matter of
utmost public importance; involves crisp constitutional issues requiring no factual
adjudication; that no useful purpose would be served by taking the matter to lower
courts given its inevitable referral to this Court; and that they have strong prospects of
success. The applicants submit that the implications of the impugned decisions on the
public purse are likely to be catastrophic with every day that passes, and that there is
likely to be prejudice to the public interest and good governance if the application is not
heard by this Court.
[12] On the merits, the challenges mounted against the President’s decisions are
three-pronged. First, the applicants argue that there is no empowering provision for the
President to place a Minister on leave of absence, characterising it as suspension with
pay without legal authority. In particular they contend that section 91(2) only gra nts
powers to appoint and dismiss, not to suspend . They also challenge the decision on
grounds of rationality. They contend that it is irrational to retain a Minister responsible
for policing in circumstances where allegations of breach of his constituti onal
responsibilities are brought against him. The applicants contend the President’s
decision demonstrates bias toward Minister Mchunu based on their political alliance,
contrasting the treatment with the summary dismissal of Deputy Minister Whitfield3 for
travelling abroad without permission. They argue that this inconsistency reveals
travelling abroad without permission. They argue that this inconsistency reveals
favouritism and irrationality.
3 Mr Andrew Whitfield is the erstwhile Deputy Minister of Trade, Industry and Competiti on. On 25 June 2025,
he was removed from office in terms of section 93(1) of the Constitution.
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[13] Secondly, the applicants challenge the appointment of Madlanga ADCJ to chair
the Commission, arguing that it is inappropriate for the judic iary to investigate itself
given that General Mkhwanazi’s allegations implicate judicial officers. They contend
that this violates the common law rule against bias, expressed in the maxim nemo iudex
in sua causa (no one should be a judge in their own case ), and that only the Judicial
Service Commission has constitutional authority to investigate judicial misconduct.
[14] Lastly, the applicants argue that the appointment of Professor Cachalia as Acting
Minister violates sections 91(3) and 98 of the Constitution , since he was neither a
Cabinet member nor a Member of Parliament when he was assigned ministerial
functions.
Respondents’ submissions
[15] The President contends that this Court’s jurisdiction is not engaged. He submits
that this case is not about his alleged failure to fulfil a constitutional obligation but a
challenge to the impugned decisions which the applicants disagree with. The President
argues that the applicants essentially differ with him about the manner in which he has
elected to manage the investigation of the allegations made by General Mkhwanazi, and
the leadership of law enforcement agencies while that investigation is underway.
[16] Relying upon EFF I,4 the President contends that section 167(4)(e) of the
Constitution does not permit the a pplicants to bypass the High Court on a matter that
involves a challenge to the lawfulness of the exercise of decision -making powers, as
opposed to a case involving his failure to fulfil a constitutional obligation. If no such
case can be advanced, so the submission went, then the result must be that this Court’s
exclusive jurisdiction is not engaged.
4 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National
Assembly [2016] ZACC 11; 2016 (3) SA 580 (CC); 2016 (5) BCLR 618 (CC).
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[17] Regarding direct access, the President argue s that the considerations advanced
by the applicants do not constitute the exceptional circumstances necessary t o warrant
direct access to this Court. That the application involves matters of public importance
that may ultimately be referred to this Court does not, on its own, justify the approach
to this Court without first ventilating the matter before the High C ourt. Moreover, the
President argues that approaching any court at this stage is premature, given that at the
time of deposing to his affidavit, the terms of reference for the Commission had not yet
been gazetted and would only be gazetted by the end of t hat week. Furthermore, the
President’s act of appointing Professor Cachalia had not yet been finalised and
executed.
[18] Minister Mchunu submit s that he would abide the decision of this Court in
relation to whether the application is urgent and whether this Court should entertain it
based on exclusive jurisdiction or direct access. On the merits, however, he argues that
the African National Congress (which decides on the step-aside rule)5 is not cited as a
party to this litigation. It was therefore inappropriate for the applicants to make veiled
and speculative assertions as to why the step-aside rule had not been applied in respect
of him, when the relevant political party who may make such a decision had not b een
cited.
[19] Minister Mchunu also contend s that the applicants’ approach amounts to
clutching at straws in attempting to draw parallels between his situation and that of the
erstwhile Deputy Minister Whitfield. The cases differ fundamentally , he says : there
was no dispute that Deputy Minister Whitfield had in fact travelled to the United States
without the approval of the President and had publicly and repeatedly admitted this
transgression. In contrast, Minister Mchunu has denied the allegations made by General
5 The “step-aside rule” refers to an internal policy of the African National Congress adopted at its 54th National
Conference in December 2017, implementing earlier resolutions from 2015. The rule provides that:
“ANC leaders and members who are alleged to be involved in corrupt activities should, where
necessary, step aside until their names are cleared.”
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Mkhwanazi and has not been given a fair opportunity to have those allegations tested.
The comparison was, so it was contended, therefore misplaced.
Discussion
Exclusive jurisdiction
[20] The threshold issue for determination, as earlier mentioned, is whether this Court
has exclusive jurisdiction to entertain the applicants’ challenge and, if not, whether
direct access should be granted . This requires us to examine what the applicants have
pleaded in their founding papers, and to determine whether the ir pleaded case engages
either this Court’s exclusive jurisdiction under section 167(4)(e) or warrants direct
access under section 167(6)(a) of the Constitution.
[21] This Court’s approach to jurisdiction is well -established. As Gcaba6
authoritatively explained—
“[j]urisdiction is determined on the basis of the pleadings, . . . and not the substantive
merits of the case . . . . In the event of the Court’s jurisdiction being challenged at the
outset (in limine), the applicant’s pleadings are the determining factor. They contain
the legal basis of the claim under which the applicant has chosen to invoke the court’s
competence.”
[22] With the above features of the jurisdiction of this Court in mind , it is necessary
to place in context the pre cise nature of the applicants’ challenge as pleaded in the
founding affidavit. What emerges from a careful reading of the founding papers is a
case that challenges the lawfulness of specific decisions that the President has made.
What is notably absent, however, is anything more than a broad allegation that the
President is alleged to have failed to comply with specific constitutional obligations .
6 Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) at
para 75, citing Chirwa v Transnet L td [2007] ZACC 23; 2008 (3) BCLR 251 (CC); 2008 (4) SA 367 (CC) at
paras 155 and 169. See also Makhanya v University of Zululand [2009] ZASCA 69, [2009] 4 All SA 146 (SCA)
at paras 34 and 71.
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The founding affidavit is scant and devoid of material evidence to sustain a claim of
this Court’s exclusive jurisdiction. As this Court said in Molusi:7
“The purpose of pleadings is to define the issues for the other party and the court. And
it is for the Court to adjudicate upon the disputes and those disputes alone.”8
[23] The applicants were required to plead their case with the necessary specificity to
enable the respondents to appreciate the nature of this claim and prepare their defence
accordingly. An assertion without adequate supporting averments that our exclusive
jurisdiction is engaged falls short of meeting the requirements set out in
section 167(4)(e) of the Constitution. Accepting the applicants’ pleaded case would set
the jurisdictional bar unacceptably low and open the floodgates to unmeritorious claims.
The applicants’ case is fundamentally concerned with the lawfulness of the exercise of
presidential powers rather than the failure to fulfil constitutional obligations. This
distinction is crucial for jurisdictional purposes.
[24] While they broadly invoke section 83(b) of the Constitution (the President’s duty
to uphold, defend and respect the Constitution ), and section 96(2) of the Constitution
(the President’s duty to abide by his Oath of Office), the applicants’ actual complaint is
directed at how the President exercised his discretionary powers under sections 91(2),9
91(3),10 98,11 and 84(2)(f)12 of the Constitution. The fundament of their claim for this
7 Molusi v Voges N.O. [2016] ZACC 6; 2016 (3) SA 370 (CC); 2016 (7) BCLR 839 (CC).
8 Id at para 28.
9 Section 91(2) provides that “[t]he President appoints the Deputy President and Ministers, assigns their powers
and functions, and may dismiss them”.
10 Section 91(3) of the Constitution reads:
“The President—
(a) must select the Deputy President from among the members of the National Assembly;
(a) must select the Deputy President from among the members of the National Assembly;
(b) may select any number of Ministers from among the members of the Assembly; and
(c) may select no more than two Ministers from outside the Assembly.”
11 Section 98 deals with the temporary assignment of functions. It reads:
“The President may assign to a Cabinet member any power or function of another member who
is absent from office or is unable to exercise that power or perform that function.”
12 Section 84(2)(f) provides:
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Court’s exclusive jurisdiction, as set out in their founding affidavit, was pleaded in these
terms:
“The announcement and the specific decisions contained therein constitute the body of
conduct the nature of which clearly falls squarely within the exclusive jurisdiction of
this Court in terms of section 167(4)(e) of the Constitution of this Court on an ur gent
basis. The main thrust of this application concerns the cause of action that the President
failed to fulfil constitutional obligations which fall or rest exclusively within his
constitutional remit.
That conclusion is indisputable if one considers th e allegations made in this affidavit
holistically and against the parameters set out in the relevant case law, including the
well-known Nkandla and My Vote Counts cases upon which reliance will be placed in
the unlikely event of exclusive jurisdiction being disputed.”
[25] From a careful reading of these paragraphs, there is nothing in the applicants’
pleaded case that engages this Court’s exclusive jurisdiction. The paragraphs contain
no identification of a constitutional obligation specifically placed on the President.
Instead, in an attempt to bolster their argument during the hearing the applicants placed
much stock on section 83(b) of the Constitution. The interpretation of this section on
its own does not raise a constitutional issue which engages this Court’s exclusive
jurisdiction. This section is only triggered if the alleged constitutional obligation which
the President has failed to fulfil is set out.13
[26] Section 91(2) of the Constitution does not impose a duty on the President, b ut
confers a discretion. The applicants accordingly do not allege that the President failed
to fulfil a duty imposed on him by that section. The analysis shows that this case
concerns the exercise of a discretion rather than a specific constitutional obl igation
“The president is responsible for—
. . .
“The president is responsible for—
. . .
(f) appointing commissions of enquiry.”
13 EFF I above n 4 at para 33.
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placed on the President. The specified constitutional obligation that the President
allegedly failed to fulfil is not pleaded.
[27] Section 167(4)(e) of the Constitution provides that only this Court may decide
that the President has failed to fulfil a constitutional obligation. The specific
constitutional obligation must be alleged and pleaded. This Court has consistently held
that this provision must be narrowly and restrictively construed. There are compelling
reasons for this approach. This section must be read and understood in conjunction with
section 172(2)(a) of the Constitution which gives other courts jurisdiction over the
conduct of the President. 14 It gives other courts authority to scrutinise the
constitutionality of the President’s and Parliament’s conduct, and this includes acts or
omissions which are subject to courts’ review. On the other hand, w here an allegation
is made that Parliament or the President failed to fulfil a constitutional obligation this
would trigger this Court’s exclusive jurisdiction. A review of the applicants’ evidence
in their founding affidavit reveals that they were aware of the implications of
section 172(2)(a) of the Constitution and the remedies available to them , and yet they
elected not to exercise that option (to approach the H igh Court). This is not without
consequences.
[28] The Constitution distinguishes disputes related to the conduct of the President
from those where he has failed to fulfil a constitutional obligation. In SARFU I,15 this
Court held that “a narrow meaning should be given to the words ‘fulfil a constitutional
obligation’ in section 167(4)(e)”,16 so as to avoid any conflict with the power given to
the High Court and Supreme Court of Appeal on all questions concerning the
constitutional validity of the conduct of the President. I accept that it may be difficult
in some instances to determine the precise scope of what that narrow meaning should
in some instances to determine the precise scope of what that narrow meaning should
14 Land Access Movement of South Africa v Chairperson of the National Council of Provinces [2016] ZACC 22;
2016 (5) SA 635 (CC); 2016 (10) BCLR 1277 (CC) at para 6.
15 President of the Republic of South Africa v South African Rugby Football Union [1998] ZACC 21; 1999 (2) SA
14; 1999 (2) BCLR 175 at para 25.
16 Id.
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be in each case. That question was left open in SARFU I.17 However, in Doctors for
Life,18 this Court adopted and resorted to a narrow construction in order not to constrict
the powers of the lower courts to test legislation and the conduct of the President for
constitutional compliance.
[29] The distinction between exercising constitutional powers and failing to fulfil
constitutional obligations is crucial. Section 167(4)(e) addresses only the latter
category. When the President exercises a power – even if that exercise is challenged as
improper – the inquiry concerns a positive act rather than an omi ssion or failure. The
challenges advanced by the applicants fall squarely into the former category. Their
contention that the President lack ed authority to suspend Minister Mchunu or appoint
Professor Cachalia, and that his appointment of Madlanga ADCJ was irrational, raises
familiar questions of administrative review that apply uniformly across the exercise of
public power. The constitutional imperatives of rationality and legality bind all organs
of state and public functionaries alike. Any “failure” to comply with these standards is
not a failure to comply with a constitutional obligation uniquely imposed on the
President, but rather a breach of general constitutional principles binding on all holders
of public power.
[30] President-specific constitutiona l obligations are readily identifiable by their
mandatory character: provisions that provide that the President “must” act in specified
circumstances.19 A failure to perform any of these mandatory, President -specific
obligations would engage this Court’s exclusive jurisdiction under section 167(4)(e).
By contrast, section 84(2) and other provisions confer discretionary powers on the
President using permissive language that indicates that the President “may” exercise
those powers. While the conferring of a power may in certain circumstances be coupled
those powers. While the conferring of a power may in certain circumstances be coupled
with a duty to exercise it, this would only arise where, on a proper construction of the
17 Id.
18 Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC) ;
2006 (12) BCLR 1399 (CC).
19 These include sections 49(2), 50(1), 79(1), 79(4), 79(5), 108(3), 174(6), 177(2), 178(2), 193(4), 194(3)(b),
196(12), 201(3), 201(4), 202(1), 203(2), 207(1) and 209(2) of the Constitution.
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power in question, it is a power coupled with a duty. The present case does not involve
such a failure. The applicants’ complaint in this case is not that the President failed to
exercise his powers, but rather that he exercised them irrationally or ultra vires. Such
complaints concern the manner of exercising constitutional powers, not the failure to
fulfil constitutional obligations, and fall within the standard review jurisdiction of the
High Court under section 172(2)(a).
[31] Cases that engage this Court’s exclusive jurisdiction come to this Court first and
last. No other court may opine on those cases. This is one re ason for construing
exclusive jurisdiction narrowly rather than broadly. As this Court recognised in
Fourie:20
“Not only is the jurisprudence of this Court greatly enriched by being able to draw on
the considered opinion of another court. Proper evidenti al foundations, where
appropriate, can be laid. Issues, both in relation to substantive law and appropriate
orders to be made, are crystallised out for focused research and attention.”21
[32] Second, section 167(4)(e) must be interpreted in light of section 167(5), which
recognises confirmatory jurisdiction for this Court in matters involving conduct of the
President. If section 167(4)(e) were to be construed broadly to encompass all challenges
to presidential conduct, it would render section 167(5) nugatory insofar as it concerns
presidential power.
[33] Third, matters that fall within exclusive jurisdiction under section 167(4)(e)
impact on the separation of powers in a different way from standard challenges to
presidential conduct. As this Court held in EFF I,22 exclusive jurisdiction is not
engaged where all that is alleged is conduct of the President that conflicts with
20 Minister of Home Affairs v Fourie [2005] ZACC 19; 2006 (1) SA 524 (CC); 2006 (3) BCLR 355 (CC).
21 Id at para 39.
21 Id at para 39.
22 EFF I above n 4. See also President of the Republic of South Africa v Tembani [2024] ZACC 5; 2024 (9) BCLR
1152 (CC); 2025 (2) SA 371 (CC) at paras 100-1.
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constitutional principles such as the rule of law binding on all persons vested with public
power.
[34] The applicants attempt to anchor their ju risdictional argument by relying on
EFF I and My Vote Count s.23 This reliance is fundamentally misplaced and
demonstrates a misunderstanding of the legal principles established in those decisions.
My Vote Counts concerned specific constitutional obligations regarding transparency
and access to information that b ear no resemblance to the generali sed challenges to
presidential decision-making power advanced here.
[35] The position adopted by this Court in EFF I guides our approach to the present
application. In that case, this Court made plain that section 167(4)(e) requires more
than merely invoking section 83(b) coupled with any other constitutional provision that
applies to the President. Mogoeng CJ framed the proposition as follows:
“Section 83 is in truth very broad and potentially extends to just about all the
obligations that rest, directly or indirectly, on the shoulders of the President . . . . An
overly permissive reliance on section 83 would thus be an ever -present guarantee of
direct access to this Court under its exclusive jurisdiction.”24
[36] What EFF I established is that section 83(b) must be coupled with a specific
constitutional obligation in respect of which there has been a failure. In that case, the
constitutional hook was the President’s obligation to act in accordance with the remedial
action of the Public Protector under section 182(1)(c) of the Constitution. The Court
reiterated:
“This means that it is not open to any litigant who seeks redress for what government
has done or faile d to do, merely to lump up section 83 with any other constitutional
obligation that applies also to the President, as one of the many, so as to bypass all
23 My Vote Counts NPC v Speaker of the National Assembly [2015] ZACC 31; 2016 (1) SA 132 (CC); 2015 (12)
BCLR 1407 (CC).
24 EFF I above n 4 at para 31.
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other superior courts and come directly to this Court. Reliance on section 83 coupled
with a section that provides a shared constitutional obligation will not, without more,
guarantee access to this Court in terms of section 167(4)(e) in a matter against the
President.”25
[37] I embrace the above reasoning. The principles established in EFF I are
reinforced by this Court’s earlier decision in Women’s Legal Centre Trust.26 There, this
Court was at pains to emphasise that section 167(4)(e) has an agent-specific focus which
mentions Parliament and the President, and them alone. The Court explained that the
exclusive jurisdiction relates to obligations resting on these agents only, in
contradistinction to constitutional duties they may bear together with other agents.
Applying these established principles to the present case rev eals fundamental
deficiencies in the applicants ’ jurisdictional case. The applicants ’ pleaded case for
exclusive jurisdiction is deficient and cannot pass muster or satisfy the narrow threshold
for exclusive jurisdiction.
[38] The reasoning of EFF I in relation to invoking section 83(b) seems to me to be
equally valid in relation to the applicants ’ invocation of section 96(2) and the
Presidential Oath of Office. Section 96(2)(b) broadly holds that members of the Cabinet
may not “act in any way that is inconsi stent with their office”. The Presidential Oath
of Office, much like section 83(b), provides broad obligations that could be read to
implicate any obligation or act by the President. Invoking the obligation of the President
to uphold his Oath of Office cannot be sufficient on its own, or in conjunction with
section 83(b), to establish this Court’s exclusive jurisdiction under section 167(4)(e).
[39] The President’s contention that the decisions taken by him fall outside our
exclusive jurisdiction under section 167(4)(e) has force. As already stated, it is trite that
exclusive jurisdiction under section 167(4)(e) has force. As already stated, it is trite that
our exclusive jurisdiction is not engaged where the President is said to have exercised
some power in a manner which conflicts with constitutional principles binding on all
25 Id at para 38.
26 Women’s Legal Centre Trust v President of the Republic of South Africa [2009] ZACC 20; 2009 (6) SA 94
(CC) at para 16.
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persons vested with public power – for example where the President exercises a power
arbitrarily, irrationally, for an improper purpose or in bad faith.
[40] The applicants seek to characterise this as a failure by the President to fulfil his
constitutional obligations, but the subs tance of their case is that they disagree with the
manner in which he exercise d his discretionary powers. The President’s conduct is
challenged as irrational and inconsistent with various constitutional provisions, but his
conduct does not arise from obligations imposed specifically and uniquely on the
President by the Constitution in the narrow sense required for exclusive jurisdiction.
[41] The applicants eventually seek refuge in section 83(b) of the Constitution. This
volte face (about turn) cannot assist them. As stated above, section 83(b) on its own is
insufficient to ground exclusive jurisdiction. In their written submissions , the
applicants accept that to trigger section 167(4)(e) a litigant must first demonstrate that
the constitutional or legislative provision relied upon imposes an obligation. Second, a
litigant must demonstrate that the obligation alleged is of the nature contemplated in
section 167(4)(e). What is missing in this case is the kind of specific constitutional
obligation that was present in EFF I. There, the President had a specific obligation to
comply with remedial action taken against him personally by the Public Protector.
Here, no such agent-specific obligation is identified.27
[42] The applicants’ challenge concerns the manner of exercise of powers granted to
the President under sections 91(2), 98, and 84(2)(f) of the Constitution. These are
discretionary powers, and challenges to their exercise fall to be determined under our
standard constitutional scheme , which c ontemplates initial adjudication by the
High Court. The subsequent appellate pathway depends on the outcome at first
High Court. The subsequent appellate pathway depends on the outcome at first
instance. Where the High Court dismisses such a challenge, the matter may proceed
27 This analysis finds further support in this Court’s decision in Tembani above n 22 at para 101, where it was said
that—
“[e]xclusive jurisdiction is likewise not engaged where the President is said to have exercised
some or other power in a manner which conflicts with constitutional principles, such as the rule
of law, binding on all persons vested with public power.”
MATHOPO J
18
through the ordinary appellate hierarchy , either to the Supreme Court of Appeal and
potentially thereafter to this Court, or directly to this Court where the circumstances
warrant such an approach. Conversely, where the High Court upholds a challenge and
declares presidential conduct constitution ally invalid, section 172(2)(d) requires
confirmation by this Court before such an order takes effect, though the affected party
retains the right to appeal the underlying order. This well-established constitutional
architecture ensures proper judicial scrutiny while preserving the hierarchical structure
of our courts.
[43] In conclusion, the broad approach taken by the applicants to the issue of
exclusive jurisdiction without sufficient averments in the pleadings to make out such a
case is legally untenable. Another fallacy in the applicants ’ case is the reliance on
Von Abo as authority for the proposition that because this case has political
consequences it therefore implicates separation of powers and thus trigger s
section 167(4)(e). This proposition canno t be accepted. The mere fact that a case
involves political decisions or has political ramifications does not automatically engage
this Court’s exclusive jurisdiction. What matters is whether a specific constitutional
obligation placed uniquely on the President has been breached, not whether the decision
has political significance. The applicants’ complaint is the manner in which the
President has dealt with the revelations made by General Mkhwanazi. None of the
impugned decisions constitute a failure b y the President to fulfil his constitutional
obligations.
[44] Reliance on the written submissions to remedy the imperfections in the founding
papers is equally unsustainable. A litigant must make their case in the founding papers
and not in subsequent pleadi ngs or submissions. 28 Similarly, the argument by the
applicants in their written submissions that they may request interim relief at the hearing
applicants in their written submissions that they may request interim relief at the hearing
of this matter without any proper case being made out for it in the notice of motion and
founding papers is misconceived. This Court must be satisfied on the basis of evidence
28 Gcaba above n 6 at para 75.
MATHOPO J
19
that a proper case has been made and it is simply not enough to make a bold claim that
the matter falls within our exclusive jurisdiction.
[45] It follows from the above analysis that no case for exclusive jurisdiction has been
made out. Having determined that this Court’s exclusive jurisdiction is not engaged, I
proceed to consider the alternative ground of direct access under section 167(6)(a) of
the Constitution.
Direct access
[46] This Court grants direct access only in exceptional circumstances and if it is in
the interests of justice to grant it.29 The constitutional scheme envisages that challenges
to presidential conduct ordinarily start in the High Court , with this Court exercising
confirmatory jurisdiction under section 167(5) of the Constitution .30 As this Court
made plain in Women’s Legal Centre Trust:31
“[T]he power to grant litigants direct access outside the Court’s exclusive competence
is one this Court rarely exercises, and with good reason. It is loath to be a court of first
and last instance, thereby depriving all parties to a dispute of a right of appeal. It is
also loath to deprive itself of the benefit of other courts’ insights.”
[47] On the range of factors relevant in determining whether direct access is in the
interests of justice, this Court in Zondi32 held that these include—
29 S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) at paras 9 -11; Brink v Kitshoff
N.O. [1996] ZACC 9; 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC) at para 3; and Zondi v MEC for Traditional
and Local Government Affairs [2004] ZACC 19; 2005 (3) SA 589 (CC); 2005 (4) BCLR 347 (CC) (Zondi) at para
12.
30 Section 167(5) reads:
“The Constitutional Court makes the final decision whether an Act of Parliament, a provincial
Act or conduct of the President is constitutional, and must confirm any order of invalidity made
by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has
any force.”
31 Women’s Legal Centre Trust above n 26 at para 27.
32 Zondi above n 29.
MATHOPO J
20
“[t]he importance of the constitutional issue raised and the desirability of obtaining an
urgent ruling of this Court on that issue, whether any dispute of fact may arise in the
case, the possibility of obtaining relief in another court, and time and costs that may be
saved by coming directly to this Court.”33
[48] Applying these principles to the present case, s everal considerations militate
against granting direct access in this matter. First, the novelty and importance of the
issues raised favour initial consideration by the High Court. These are precisely the
circumstances in which this Court benefits from a reasoned judgment of another court
– the applicants, in their written submissions describe the questions as “intricate”. The
applicants state in their founding affidavit:
“Under the wide rubric of just and equitable remedy this Court may be asked to grant
a holding interim order preventing the assumption of office by the Acting Minister
and/or the Commission, pending the delivery of the judgment in the main application.
It would be in the interests of justice to grant such relief”.
There is no reason or legal basis why the same order could not be sought in the
High Court. The applicants have failed to adequately explain why they chose to
approach this Court directly rather than seeking relief in the High Court, which would
have been the appropriate forum for their challenge.
[49] Second, there is no urgency , on its own, that necessitates this Court sitting as a
court of first and last instance. Although Professor Cachalia was schedu led to assume
office on 1 August 2025, this Court has regularly dealt with challenges to appointments
after they have taken effect. 34 Moreover, if the appointment is subsequently found to
be unlawful, section 172(1)(b) of the Constitution provides ample sc ope for just and
equitable relief.
33 Id at para 12.
equitable relief.
33 Id at para 12.
34 See, for example, Corruption Watch (RF) NPC v Speaker of the National Assembly [2025] ZACC 15 and
Mncwabe v President of the Republic of South Africa [2023] ZACC 29; 2023 (11) BCLR 1342 (CC); 2024 (1)
SACR 447 (CC).
MATHOPO J
21
[50] Third, and importantly, although a High Court declaration that the President has
acted unconstitutionally would require confirmation by this Court to be effective,
section 172(2)(b) empowers the High Court to grant inter im relief pending our
confirmation. The applicants have not adequately explained why they did not pursue
this available avenue.
[51] Lastly, t he fact that appellate or confirmation proceedings might follow a
High Court judgment cannot undermine what the Constitution says about the proper
allocation of jurisdiction. If cost and delay in moving cases through the courts were
reasons to seek direct access , this Court would unceasingly be approached directly .
That cannot be the constitutional design. The analysis shows that, in the present case,
the interests of justice do not favour direct access. The High Court is well-equipped to
deal with urgent constitutional challenges to executive action. This Court’s increasing
workload, as it has previously observed, requires it to be engaged mostly as a court of
last resort to advance the administration of justice. The importance of the issues in a
case do not, without more, constitute exceptional circumstances and justify th is Court
being a court of first and last instance. Mkontwana35 makes this clear. In that case this
Court observed that it is ordinarily not in the interests of justice for this Court to be a
court of first and last instance. It is precisely for this reason that—
“the importance and complexity of the issues raised would weigh heavily against this
Court being a court of first and final instance. As a general rule, the more important
and complex the issues in a case, the more compelling the need for this C ourt to be
assisted by the views of another court.”36
[52] It follows from the above analysis that this application cannot succeed on either
threshold ground. This is not a matter that falls within this Court’s exclusive jurisdiction
threshold ground. This is not a matter that falls within this Court’s exclusive jurisdiction
under section 167(4)(e) of the Constitution, nor is it one where the interests of justice
favour direct access under section 167(6)(a) of the Constitution.
35 Mkontwana v Nelson Mandela Metropolitan Municipality [2004] ZACC 9; 2005 (1) SA 530 (CC); 2005 (2)
BCLR 150 (CC).
36 Id at para 11.
MATHOPO J
22
[53] In light of the above finding, it is not competent for this Court to opine on the
merits of the applicants ’ challenge to the impugned decisions, and that issue must be
left for the right time and at the appropriate forum should the applicants be so inclined.
Costs
[54] I turn to the question of costs, which were reserved. It is the applicants’ case that
they have raised important constitutional issues about the powers of the President as set
out in the Constitution. They argue that because they sought to vindicate important
constitutional guarantees they should not be unduly mulcted in costs for attempting to
do so, in the event that they are unsuccessful. The respondents disagree and reiterate
that the case as pleaded by the applicants raise s no issue engaging the exclusive
jurisdiction of this Court. Minister Mchunu urges us to show our displeasure at the
conduct of the applicants through an adverse costs order.
[55] Although the applicants ’ case for exclusive jurisdiction and direct access was
unsuccessful, the constitutional questions they sought to raise were not entirely without
merit. The jurisdictional claims, though insufficiently pleaded, were not so manifestly
hopeless as to warrant costs. In these circumstances, Biowatch37 protection is warranted
and each party should bear their own costs. This approach recognises b oth the
constitutional importance of the underlying issues and the procedural deficiencies in the
application.
[56] It is for these reasons that the order of 31 July 2025 was made. There is no order
as to costs.
37 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC).
For the First Applicant:
For the Second Applicant:
For the First Respondent:
For the Second Respondent:
D Mpofu SC and K Monareng
instructed by KMNS Incorporated
A Katz SC, M Qofa -Lebakeng and
Z Makangela instructed by T Mpulwana
and Associates
N Maenetje SC, K Hofmeyr SC,
N Muvangua, N Stein and E Cohen
instructed by Office of the State
Attorney, Pretoria
G Madonsela SC, M Rantho and
M Tsele instructed by RS Bhila
Attorneys