REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
REPORTABLE: YES/NO
OF INTEREST TO OTHER JUDGES: YES/NO
.) VISE .
SIGNATURE
• 0 CJ/12 l~o?. ............ ·······7··
DATE
JACOB GEDLEYIHLEKISA ZUMA
UMKHONTO WESIZWE PARTY
and
PRESIDENT CYRIL MATAMELA RAMAPHOSA
MIN ISTER SENZO MCHUNU
ACTING MINISTER FIROZ CACHALIA
JUSTICE MBUYISELI MADLANGA ADCJ
SESIBALOYISC
SANDILE KHUMALO SC
JUDGMENT
CASE NO : 136722/2025
First Applicant
S econd Applicant
First Respondent
Secon d Respondent
T hird Respondent
Fourth Respo ndent
Fifth Responden t
S ixth Respo ndent
THE COURT: (MOLOPA-SETHOSA J, MOSHOANA J and LABUSCHAGNE J)
Introduction
[1] Ours is a nascent constitutional democracy. Given its nascency, and in order
to ensure organic growth of constitutionalism and adherence to the law, judicial
oversight of the rule of law is an absolute necessity. The preservation of legality is the
province of the High Court. The exercise of statutory executive power must be put
under perennial check by the judiciary. It does not axiomatically follow that because
the executive once acted in a particular manner, the next executive action requires the
Courts applying the same standard applied by the executive in the recent past. The
role of the Courts is to apply the law and not to approve some practices not predicated
on the letter of the law. Consistency is an element of fairness1 and not rationality.
[2] The rationality of a decision or exercise of public power is a reference to the
quality of it being based on reason rather than emotions. There is no mag ic wand in
the word 'irrationality'. In simple terms, an irrational exercise of statutory power is one
that is arbitrary, ie. where the means employed are not rationally linked to the purpose
of the power exercised.
[3] The above said, the present application concerns itself with the exercise of
certain constitutional powers by the President of the Republic of South Africa. The
exercise of those constitutional powers was necessitated by the unprecedented
explosive revelations made by Lieutenant General Nhlanhla Mkhwanazi ("General
Mkhwanazi") on 6 July 2025. The explosive nature of the revelations compelled the
President of the Republic of South Africa to abruptly curtail an overseas trip. It is
common cause that the first respondent, the President of the Republic of South Africa,
exercised effectively three constitutional powers; namely; (a) placed the Honourable
Minister Mchunu on leave of absence; (b) established a commission of enquiry; and
(c) appointed the Honourable Minister Cachalia as a Minister and temporarily assigned
(c) appointed the Honourable Minister Cachalia as a Minister and temporarily assigned
the policing functions to him. All the above exercises of constitutional powers are being
impugned by the applicants on the basis of legality and rationality.
1
See Sou thern Sun International H otel Interests (Pty) v CC M A (201 0) 31 ILJ 452 (LC ). See also
Saccawu v Irvin & Johnson Ltd [1999) 8 BLLR 741 (LA C).
2
[4] The present challenge took detours before it ended with this Court. Its first
sojourn was the Constitutional Court of the Republic of South Africa. Owing to the
failure to satisfy the requirements of section 167(6)(a) of the Constitution, the
applicants were non-suited. The next sojourn was in the urgent Court of this Division.
Since the applicants failed to meet the requirements of rule 6(12) of the Uniform Rules
of Court, the urgent Full Court refused to hear the merits of the present application.
Background facts and evidence
[5] The applicants are the uMkhonto weSizwe Party ("the MK Party") and the
former President Zuma , who challenge, in review proceedings, four decisions made
by President Ramaphosa.
[6] In terms of the Notice of Motion, the following decisions of President
Ramaphosa were impugned:
"2.1 Establish the Madlanga Commission of Inquiry;
2.2 Placing Minister Senzo Mchunu on leave of absence;
2.3 Appointing Professor Firoz Cachalia as Acting Minister, Minister and/or
membership of the Cabinet (sic); and/or
2.4 Making the public announcements on 13 July 2025 and/or 1 August 2025."
[7] The applicants apply for the decisions to be declared invalid, illegal, null and
void and/or unconstitutional for being inconsistent with the Constitution, in breach of
the applicants' fundamental rights and/or the relevant provisions of Chapter 5 of the
Constitution and/or the rule of law.
[8] The applicants also seek an interim suspension of the aforesaid decisions
pending the granting of just and equitable relief in terms of section 172(1)(b) of the
Constitution.
[9] As highlighted at the start of this judgment, the applicants initially brought the
application in the Constitutional Court, but the matter failed as it did not engage the
Constitutional Court's exclusive jurisdiction and the applicants were denied direct
access. The matter was then referred to a Full Court of this Division, which heard
3
argument on urgency and ruled that the matter lacked urgency. Ultimately, the matter
emerged before us in order to hear the merits of the challenge.
[1 O] On the papers, there are two preliminary applications. The first is a strikeout
application in terms of rule 6(15) of the Uniform Rules predicated on allegations of
duplicated annexures introduced into the answering affidavit by the first respondent.
[11] The second is an interlocutory application to file a further affidavit pertaining to
events that occurred from 1 August 2025 onwards, which application was opposed. At
the commencement of the hearing, the applicants informed this Court that they are not
proceeding with the two preliminary applications. None of the parties raised the issue
of the costs arising from the jettisoned applications. Resultantly, the present judgment
shall not deal with any of the issues attached to these abandoned applications.
[12] The genesis of the present application is that on 6 July 2025, General
Mkhwanazi, who is the Provincial Commissioner of Police in the Province KwaZulu
Natal, convened and addressed a media conference in Durban in wh ich he made
public explosive allegations about the existence and operation of a sophisticated
criminal syndicate that has allegedly infiltrated law enforcement, intelligence structures
and the judiciary in South Africa.
[13] General Mkhwanazi also alleged that the Honourable Minister Mchunu , the
Minister of Police, interfered with sensitive Police investigations and colluded with
businesspeople, including a murder accused, to disband the Political Killings Task
Team ("PKTT").
[14] On 6 July 2025, the Honourable Minister Mchunu issued a media statement,
indicating his intention to review General Mkhwanazi's allegations and to take
appropriate action.
[15] On 9 July 2025, the Honourable Minister Mchunu issued a media statement,
explaining his lack of knowledge of one Mr Matlala and that one Mr Brown Mokgotsi
was only known to him as a comrade.
4
[16] On 10 July 2025, the Office of the Chief Justice, through the Media Liaison
Officer: Private Office of the Chief Justice, issued a media statement in response to
General Mkhwanazi's "accusations about wrongdoing in the Judiciary".
[17] On 11 July 2025, the Honourable Minister Mchunu received a letter from the
Acting Registrar of Members ' Interests, informing him of the complaint lodged by
Members of Parliament from the Democratic Alliance (DA) and the Economic Freedom
Fighters (EFF) for the alleged breach of Code of Ethical Conduct and Disclosure.
[18] On 13 July 2025, the President signed President's Act 250/2025, placing the
Honourable Minister Mchunu on leave of absence with immediate effect, until further
notice.
[19] On 13 July 2025, President Ramaphosa addressed the nation and issued a
media statement. President Ramaphosa announced:
19.1 The establishment of a Judicial Commission of Inquiry, chaired by
Acting Deputy Chief Justice Mbuyiseni Madlanga.
19.2 That the Commission will investigate the role of current or former
officials in certain institutions who may have aided or abetted the
alleged criminal activity, failed to act on credible intelligence or internal
warnings, or benefited financially or politically from a syndicate's
operations. These institutions include SAPS, NPA, SSA, the Judiciary
and Magistracy.
19.3 That in order for the Commission to execute its functions effectively,
he has decided to put the Minister of Police on leave of absence with
immediate effect.
19.4 That he has decided to appoint Professor Firoz Cachalia as Acting
Minister of Police.
19.5 That he is appointing Professor Cachalia in terms of section 91 (3)(c)
of the Constitution.
5
[20] On 13 July 2025, the Honourable Minister Mchunu issued a media statement,
expressing his support for the President's announcement of 13 July 2025.
[21] On 14 July 2025, the MK Party issued a media statement, "Dismissing and
rejecting the illegitimate and unconstitutional announcement by Cyril Ramaphosa. "
[22] On 15 July 2025, the applicants, through their attorneys, wrote a letter of
demand to President Ramaphosa to demand inter alia that the announcement of 13
July 2025 be withdrawn by no later than 18 July 2025. President Ramaphosa was
informed that, if he fails to meet the demand, the applicants will approach the
Constitutional Court on an urgent basis.
[23] On 15 July 2025, the President's Office acknowledged receipt of the letter of
demand.
[24] On 16 July 2025, the applicants, through their attorneys, sent a courtesy letter
to the Chief Justice to inform her and the Constitutional Court about an imminent
application in connection with the allegations made by General Mkhwanazi. The Chief
Justice was informed that the proposed date for the urgent hearing was 28 July 2025.
[25] On 18 July 2025, the Parliamentary Portfolio Committee on Police and Justice
announced that they would recommend the establishment of an ad hoe committee to
look into the allegations made by General Mkhwanazi.
[26] On 18 July 2025, the President responded to the applicants' letter of demand
and refused to meet the demands of the applicants.
[27] On 18 July 2025, the applicants filed an urgent exclusive jurisdiction,
alternatively direct access application with the Constitutional Court.
[28] On 20 July 2025, the Constitutional Court issued directions and directed the
respondents to file their answering affidavit on or before 22 July 2025 and the
applicants to file their replying affidavit on 24 July 2025. On 21 July 2025, the
6
Honourable Minister Mchunu submitted affidavits to the Acting Registrar of Members'
Interests. On 23 July 2025, President Ramaphosa filed his answering affidavit in
opposition to the applicants' application.
[29] On the same day, the Honourable Minister Mchunu filed his answering affidavit
in opposition to the applicants' application. On 24 July 2025, the applicants filed their
composite replying affidavit.
[30] On 25 July 2025, the Constitutional Court issued further directions setting the
matter down for a hearing on Wednesday , 30 July 2025, at 11 :00.
[31] On 30 July 2025, the application was argued before the Constitutional Court.
[32] On 31 July 2025, the Constitutional Court found that the matter does not
engage its exclusive jurisdiction and the application for direct access was refused.
[33] On 31 July 2025, Professor Cachalia was appointed Minister without Portfolio
in the exercise of powers emanating from section 91 (3)(c) with effect from 1 August
2025, in terms of President's Act 278/2025.
[34] On 31 July 2025, the Presidency invited the media to the swearing-in ceremony
of the Minister-Designate, Professor Firoz Cachalia.
[35] On 1 August 2025, President Ramaphosa addressed the swearing-in
ceremony. President Ramaphosa announced that he has decided to appoint Professor
Cachalia as Minister of Police, the portfolio indicated in the signed President's Act
282/2025. It reads:
"PRESIDENT'S ACT NO . 282/2025
In terms of section 98 of the Constitution of the Republic of South Africa, 1996, I
hereby appoint Mr Firoz Cachalia as the acting Minister of Police and assign to him
generally the powers and functions of the Minister of Police, with effect from 1 August
2025.
7
The appointment of Mr Gwede Mantashe as acting Minister of Police in terms of
President Act No. 246 of 2025 is hereby terminated.
Given under my Hand and the Seal of the Republic of South Africa at Pretoria on this
1 st day of August, Two thousand and twenty-five."
[36] Professor Cachalia elected to do the affirmation. After the swearing-in
ceremony , Professor Cachalia and President Ramaphosa conducted separate media
interviews .
[37] In his media interview, President Ramaphosa indicated that he knows there is
a technicality about seem ing to have two Ministers in the same portfolio, but that this
issue would be resolved within a short space of time.
[38] In the separate media interview, Professor Cachalia indicated that "in the time
I am Minister, I will be able to take the country forward ... "Professor Cachalia indicated
that he was appointed Minister, not Acting Minister, and that the idea of an acting
appointment is not provided for in the Constitution.
[39] On 4 August 2025, the applicants, through their attorneys, sent a letter of
demand to the President, giving him until 8 August 2025 to meet the demands of the
applicants.
[40] On 8 August 2025, the President responded to the applicants' letter of demand ,
refusing to meet any of their demands.
[41] On 12 August 2025, the applicants filed their application in this Division seeking
to review and set aside the decisions of the President announced on 13 July and 1
August 2025.
[42] On 18 August 2025, the President filed his answering affidavit in response to
the applicants' case. On 20 August 2025, the Honourable Minister Mchunu filed his
answering affidavit. On 25 August 2025 , the Acting Judge President informed the
8
parties that the matter is not suitable for the urgent court and will not be heard on 26
August 2025, and that the matter will instead be case managed.
[43] On 27 August 2025, the parties attended a case management meeting and the
Acting Judge President allocated the application before the Full Court on 18
September 2025, leaving 19 September 2025 open as a second day of hearing, if
necessary.
[44] On 29 August 2025, the first applicant filed an application in terms of rule 6(5)(e)
to be granted leave to file a further affidavit.
[45] On 8 September 2025, the President filed a notice opposing the first applicant's
application for leave to file a further affidavit.
[46] On 9 September 2025, the first applicant filed his replying affidavit in the
interlocutory application.
[47] On 10 September 2025, the second case management meeting took place and
all issues pertaining to the rule 6(5)(e) application were referred to the Full Court.
[48] The Full Court heard the application on 18 September 2025. Subsequently, in
a written judgment, the Full Court struck the application off the urgent roll and reserved
the issue of costs.
Evaluation
[49] In order to properly locate the legal dispute in the present application, the best
place to begin is to establish what the relevant constitutional powers of the President
are.
Powers of the President
[50] The President is the Head of State and of the National Executive. All executive
powers vest in the President (section 85(1) of the Constitution) and are exercised by
him and his Cabinet (section 85(2) of the Constitution).
9
[51] The President's power to appoint and dismiss Ministers is pivotal in the present
application. The President is expressly empowered to appoint Ministers, assign them
their powers and functions, and may dismiss them (section 91 (2) of the Constitution).
Also, the President is empowered to select no more than two Ministers from outside
the Assembly (section 91 (3)(c) of the Constitution). Temporary assignment of
functions is governed by section 98 of the Constitution. And in order to have legal
effect, all the President's decisions need to be reduced to writing (section 101 (1) of
the Constitution).
[52] It must be so that the third source of power in section 84(1) is a wide power,
actuated by the necessity to perform the functions assigned to the President either by
the Constitution or by some other legislation. Contrary to the submission of Mr Mpofu
SC , appearing for the first applicant, long before the AmaBhungane case, the
Constitution had already created space for the so-called "necessity power".
[53] It is significant to highlight at this stage that section 84(1) expressly provides
that the President's sources of power are; (a) the Constitution; (b) legislation; (c) those
necessary to perform the functions of Head of State and head of national executive.
These necessary powers are referred to below as the "third source". It bears
mentioning that in terms of section 83(1 )(a), the President is the Head of State and
head of the national executive. A Head of State is the chief public representative of a
country. He or she is indeed, as submitted on behalf of the President, the Chief
Executive Officer (CEO) or Managing Director (MD) of the Republic of South Africa.
As a Head of State, the President is obligated to (a) uphold; (b) defend; and (c) respect
the Constitution as the supreme law of the Republic.
[54] Technically, an implied power is a power that owes its existence to the express
power. In other words, such power can only co-exist and not exist on its own. On the
power. In other words, such power can only co-exist and not exist on its own. On the
contrary, this third source is expressly legislated. In our considered view, it permits the
President to do something unexpected but effective in response to a problem. We
hasten to mention that there must always be a demonstration that the "something"
done is necessary,ie. causally linked to the performance of constitutional functions. In
10
: · ..
this particular instance, the need for the power to suspend a Minister has come into
sharp focus.
[55] In our view, arising from this third source, a President is empowered to do
anything that is necessitated by the performance of the functions assigned to a
President. Pertinent to the present application, one of the functions solely assigned to
the President by section 91 (2), in relation to Ministers, is to dismiss them. In order to
perform that function, it may be necessary for the President to take an interim step
(which includes placing a Minister on leave of absence), en route to the performance
of the function to dismiss. We conclude that the third source may be used to action the
interim step.
[56] Undoubtedly, any of the decisions of the President, sourced from any of the
three sources of power, are executive actions. In Minister of Defence and Military
Veterans v Motau and Others.2 the interplay between rationality and legality was
formulated as follows:
'The principle of legality requires that every exercise of public power, including
every executive .act, be rational."
[57] The above simply decrees that the President does not have unfettered powers.
It cannot be so, as submitted by both applicants' counsel, that the President has a free
hand to hire and fire Ministers at will. In this regard, this Court is reminded of the
seminal judgment of the Supreme Court of Canada in Canada (Minister of Citizenship
and Immigration) v Vavilov,3 where the following was expressed sagaciously by the
Court:
" ... Where the impact of a decision on an individual's rights and interests is
severe, the reasons provided to that individual must reflect the stakes. The
principle of responsive justification means that if a decision has particularly
harsh consequences for the affected individual, the decision maker must
explain why its decision best reflects the legislature's intention."
2 [2014) ZACC 18; 2014 (5) SA 69 (CC ); 2014 (8) BCL R 930 (CC) at para 69.
3 2019 sec 65, [20191 4 scR 653.
11
[58] The above sentiments sufficiently gainsay a subm ission of hire and fire at will.
The minimum threshold for all executive actions is rationality.4
Rational exercise of powers
[59] The President's powers are constrained by rationality. In other words, the
exercise of power by a President, irrespective of the source, must be not be arbitrary,
non-whimsical, and adorned with reasons. When a decision is challenged on the
grounds of rationality, courts-are obliged to examine the means selected to determine
whether they are rationally related to the objective sought to be achieved.5 It is not the
duty of courts to second-guess what the decision make r could do. The court merely
assesses whether there is a rational link between the means chosen to achieve some
public good.
[60] Assuming that the President ultimately dismisses the Honourable Minister
Mchunu , an executive action, when challenged, the route to place the Honourable
Minister on leave of absence w ill be considered as a means the President selected en
route the exercise of the executive action. Then , and even now , the role of a court is
not to say to the President, he should have docked his salary instead of placing him
on leave of absence. The role is simply this; is the means selected - placing the
Honourable Minister on leave of absence - rational with reference to the purpose of
the power to dismiss or not dismiss.
The imp ugnability, legality and rationality of the announcem ents mad e by the
President.
[61] Although there are four decisions sought to be challenged, the public
announcements on 13 July and 1 Aug ust 2025 cannot be categorised as decisions
capable of being reviewed. The decisions that have legal effect in terms of section
101 (1) of the Constitution are those in the President's Acts 250/2025, 278/2025 and
282/2025.
4
Pharmaceutical M anufacturers A ssociation of South Africa and Another: In re Ex Pa rte President of the Republic
of South Africa and Others [2000) ZAC C 1; 2000 (2) SA 67 4 (CC); 2000 (3) BCLR 241 (CC) at para 85.
5 A/butt v Centre for the Study of Violence and Reconciliation and Others [201 OJ ZACC 4; 201 O (3) SA 293 (CC);
2010 (5) BCLR 391 (CC ) at para 51.
12
[62] The announcements do not have legal effect as they merely reference the other
decisions. In essence, only the first three decisions in the notice of motion are the
subject matter of the present application. The view this Court takes is that not every
word coming out of the mou th of a sitting President constitutes an executive decision.
The announcements , intentions or desires of a President become a subject of judicial
review if they meet the requirements of section 101 (1) of the Constitution. Accordingly,
the announcements are not impugnable and cannot be tested by this Court regarding
their legality or rationality. Courts do not operate like politicians. In the political space ,
politicians are free to be critical of each other's political expressions or statements.
The inchoateness is laid bare by the fact that, save for placing Minister Mchunu on
leave of absence on 13 July 2025 , no written decisions existed for the other
announcements. The decisions came later.
[63] In making a similar point, the Supreme Court of Canada in Highwood
Congregation of Jehovah's Witnesses (Judicial Committee) v Wa// 2018 SCC 266 had
the following to say:
"Not all decisions are amenable to judicial review under a superior court's jurisdiction. Judicial
review is only available where there is an exercise of state authority and where that exercise
is of a sufficiently public character. Even public bodies make some decisions that are private
in nature - such as renting of premises and hiring of staff - and such decisions are not subject
to judicial review ... In making these contractual decisions, the public body is not exercising ·a
power central to the administrative mandate given to it by Parliament' but rather exercising
private power ... Such decisions do not involve concerns about the rule of law insofar as this
refers to the exercise of delegated authority. Second, while it remains true that 'almost all
powers exercised by public authorities today have a statutory basis', it is important to
powers exercised by public authorities today have a statutory basis', it is important to
recognise that public authorities can function based on powers that do not owe their existence
to enactments. The Crown has powers of a natural person and can conduct some of its affairs
without relying on statutory powers. Indeed, even some fairly sophisticated administrative
regimes have operated without any comprehensive statutory framework. Where a public
authority is operating under powers that do not arise from an enactment, remedies under
section 2(2) (b) of the Judicial Review Procedures Act will not be available, though remedies
6 Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v Wall 2018 sec 26
(hereafter the Highwood case).
13
under section 2(2) (a) will remain available if the public authority's activities have sufficient
public character.7"
The legality and rationality of the decision of the President to place the Honourable
Minister Mchunu on leave of absence.
[64] The labelling and colouring of the President's action towards the Honourable
Minister Mchunu is of no moment. In whatever name it goes by, it remains an executive
act, which, as stated before, may later serve as a means towards the bigger decision
of dismissal, if the rationality of the bigger decision is impugned. The first applicant
takes issue with the term "placing" a person on leave. The link to a precautionary
suspension is recognised, but is alleged to be on a different footing from a voluntary
stepping down. Counsel for the Honourable Minister Mchunu was at pains to convey
that the leave of absence is something to wh ich his client had agreed. It was not
unilaterally imposed.
[65] Valiant as this contention might be, it does not detract from the need to establish
a presidential right to do what he did to the Honourable Minister Mchunu . If there were
no such right, then the Honourable Minister Mchunu 's agreement wou ld not validate
an illegality.
[66] The applicants contend that a Minister is a political appointee who serves in
Cabinet at the pleasure of the President. Appointing and dismissing Ministers is a
constitutional executive act. A Minister is not entitled to an interview before
appointment, and is not entitled to due process, including audi alteram partem, when
dismissed, so went the submissions on behalf of the applicants. In fact, a Minister who
is dismissed does not have a right to reasons why he or she is dismissed, so went the
contention. That flows from a category of executive decisions specific to Ministers, so
it is suggested. However , the decisions (to appoint and dismiss) can be assailed on
the basis of rationality.
Highw ood case 26.
14
[67) Inasmuch as we agree with regard to the precarious tenancy of Ministers in a
Cabinet, we strongly take the view that in a constitutional order, more is required of
decisions to appoint and dismiss ministers. This is consistent with the approach of
Rogers J (as he then was) in Democratic Alliance v President of the Republic of South
Africa.8
"It is difficult to imagine a power closer to the heartland of the President's personal
preferences than the power to appoint and dismiss ministers and deputy ministers; it
is by its nature highly discretionary. It may well be that the exercise of these powers
can be impeached on the ground of irrationality but the threshold for judicial
interference is likely to be very high".
[68) To do nothing would be irrational due to the political fallout and the public outcry
that would follow. To dismiss Minister Mchunu outright based on untested allegations
could be assailed as irrational. There must be a power to protect the public confidence
in the executive and to investigate whether there are grounds for a dismissal. A power
to suspend, as a precursor to a decision to dismiss or not, in terms of section 91 (2), is
available under the third power contemplated in section 84(1 ), ie. implied as necessary
for the President to exercise his powers to appoint or dismiss ministers.
[69) The argument of the first applicant conflates the question of whether a power
to suspend exists or not with whether the power was rationally exercised. As it shall
be demonstrated below, such a conflation is unwarranted. The doctrine of ultra vires,
as it was known by its common law name , is separate and distinct from rationality. A
decision may be intra vires and yet irrational. An irrational exercise of public power
does not equate to a lack of power.
[70] Before us, the applicants dispute that there is a link between a leave of absence
on the part of Minister Mchunu and the outcomes of the Madlanga Commission. To
on the part of Minister Mchunu and the outcomes of the Madlanga Commission. To
put it as it was vociferously and with apparent sagacity put, the means (placing on
leave of absence) does not justify the end (the decision to dismiss/retain). However,
the applicants are at the wrong end of the stick.
8 [2017) ZAWCHC 34 at para 7.
15
[71] The fact that the findings and recommendations of the Commission are non
binding and may not lead to a dismissal, as it was done with the likes of the Honourable
Ministers Mantashe and Kodwa , is of no mom ent when rationality, as a species of
legality, is judicially assessed. It is the primary postulate on behalf of the applicants
that there is no rational connection between the means (the placing of the Honourable
Minister Mchunu on leave) and the end sought to be achieved (the decision whether
to dismiss or retain the Honourable Minister Mchu nu). It is contended that the latter
decision is not rationally linked to the outcomes of the Commission. We disagree with
this postulation, however elegant and passionately it was pressed before us. Counsel
for the second applicant, wisely, conceded that the Commission would, amongst
others, make factual findings. However , for reasons that are, with respect, unsound in
law, she contended that such factual findings may not assist the President to make a
decision whether to dismiss or retain the Honourable Minister. However , such factual
findings may assist the President, and are thus rationally linked to the ultimate exercise
of the constitutional power to dismiss.
[72] Punting for the quick exercise of the discretionary power to dismiss, the
applicants contend that there is no rational link and there is no legal basis to await
the Mad langa Commission findings. This point is unwarranted. There is no justifiable
evidence to suggest that the President is refusing to exercise the statutory power. The
President simply wishes to proceed cautiously, owing to the fact that, as required by
the Constitution, he owes the Honourable Minister Mchunu procedural rationality.
[73] The applicants' contention is that, as the Minister serves at the pleasure of the
President, the removal of a M inister is a political matter on which audi alteram partem
is not required. The contention is that, as the Honourable Minister Mchunu is not
is not required. The contention is that, as the Honourable Minister Mchunu is not
entitled to a hearing in respect of the allegations made against him, the President's
decision to await the outcome of the Madlanga Commission is not rationally connected
to the question whether he may be dismissed or not. This postulate assumes that a
disciplinary process was envisaged, which would be irrational. The President,
however, wants to be sure that there are grounds for a dismissal.
16
[74] The applicants contend that the President has been advancing mutating
reasons for his decision, as an indication of irrationality. This culminates in the
subm ission that the President has advanced false justifications which indicate bias, an
improper motive and/or bad faith.
[75] This latter point is based on inferential reasoning with reference to other
instances where a Deputy Minister was dismissed - Mr Whitfield. The President
contends that, as Mr Whitfield admitted guilt in travelling overseas without his
permission, that case is different from that of the Honourable Minister Mchunu. The
reason why the Whitfield example is relied upon by the applicants is that the facts
pertaining to his wrongdoing are equally "untested".
[76] The third basis on which this ground is motivated is the contention that the
special leave decision may result in the Honourable Minister Mchunu being suspended
for the remainder of his term of office.
[77] The fourth contention is that the President's reliance on a precedent of having
placed Dr Mkhize on leave of absence is not a justification, but merely an indication
that the matter was not previously raised in a court challenge.
[78] The applicants suggest that there is a fifth reason, namely a special political
relationship between the President and the Honourable Minister Mchunu. It is for that
reason that the President is treating the Honourable Minister Mchunu with kid gloves.
There is allegedly an ulterior motive in his suspension, rather than an outright
dismissal.
[79] All the above contentions are oblivious of the fact that the power to dismiss is
discretionary. It takes the President and the President alone to exercise that
discretionary power. The only available remedy to compel a functionary to perform a
statutory function is to seek a mandamus. 9 Absent that, a case of irrationality is
incapable of being conjured up simply because a functionary failed to exercise
incapable of being conjured up simply because a functionary failed to exercise
statutory power. In East Luther Grand Valley (Township) v Ontario (Minister of
9 See Moll v Civil Commissioner of Paarl ( 1897) 14 SC 463 at 468.
17
Environment and Energy),10 O 'Connor J, placing reliance on Baker v Canada (Minister
of Citizenship and /mmigration),11 expressed the following:
"It follows that a discretionary decision will not be subject to judicial review
merely because a party wishes the discretion had been used to come to a
different conclusion. To do so would be to hold a discretionary decision to a
"correctness" standard. This will result in the abrogation of discretionary powers
legislated by parliament."12
[80] Similarly, to suggest when and how a discretionary power should be exercised,
to dismiss the Honourable Minister Mchunu now, will certainly result in the abrogation
of the discretionary power legislated by parliament. The President responded to the
suggestion of mutation of reasons for his decision to place the Honourable Minister
Mchunu on special leave. In his press statement of 13 July 2025 , the President stated
that: "In order for the Madlanga Commission to execute its functions effectively, I have
decided to put the Minister of Police, Mr Senzo Mchunu on leave of absence with
immediate effect."
[81] Relying on the seriousness of the allegations implicating the Honourable
Minister Mchunu , the President stated in his answering affidavit before the
Constitutional Court that the allegations "have profound implications for public
confidence in the executive and the Police Force as a whole. So I decided that a proper
investigation into the veracity of the allegations was warranted." This was repeated in
the answering affidavit in the proceedings before this Court.
[82] The power to place the Minister of Police on special leave derived, so says the
President, from section 91 (2) of the Constitution, which provides:
"The President appoints the Deputy President and Ministers, assigns their powers
and functions, and may dismiss them."
[83] In addition to the third power in section 84(1 ), the pow er to suspend is incidental
[83] In addition to the third power in section 84(1 ), the pow er to suspend is incidental
to the power to dismiss. The President relies in this regard on Mphele v Gov ernmen t
10 2000 Can lll 22361 (ON SC).
11 (1999] 2 SC R 817, 174 D.LR (41h) 193.
12 Id at para 32.
18
of the Republic of South Africa and Another13 and Masetlha v President of the Republic
of South Africa and Others.14 In the latter, Moseneke DCJ held that the power to
dismiss the head of a national intelligence agency was necessarily implied in section
209(2) of the Constitution. The submission by the applicants that the situation that
obtained in Masetlha applies only in respect of employees as opposed to Cabinet
members is without a propelling force. As such, it cannot be accepted by this Court.
The decision in Mphele is that of a single judge. Although, on application of the stare
decisis principle, it is not binding on this Court, this Court unreservedly agrees with it
and gives it its imprimatur.
[84] In AmaBhungane Centre for Investigative Journalism NPC and Another v
Minister of Justice and Correctional Services and Others; Minister of Police v
AmaBhungane Centre for Investigative Journalism NPC and Others,15 the
Constitutional Court endorsed Masetlha but drew a distinction between an implied
primary power and an ancillary implied power. The Court held that an ancillary power
"arises in the context of one power being necessary in order for an unquestionably
existing power to be exercised."16 Of significance, the Court expressed itself in the
following terms:
"So, the interpretative exercise is not confined to the four corners of a statute.
The answer to the question whether an implied primary power exists is yielded
by the usual interpretative exercise that seeks to establish what a statute or a
provision in it means. There is nothing unusual about this .... "17
[85] It follows that implied powers emerge as a result of an interpretative exercise.
Properly interpreted, sections 91 (2) and 98 yield the implied power to place the
Honourable Minister Mchunu on either suspension or leave of absence. In the
answering affidavit, the President described his position as follows:
"My decision in this case was informed by the seriousness of the allegations
"My decision in this case was informed by the seriousness of the allegations
implicating Minister Mchunu. Those allegations raise the question whether
Minister Mchunu has breached his most basic duties, including his oath of office
and the duties under section 96 of the Constitution. They also raise the question
13 1996 (7) BC LR 921 (Ck) at 930 D .
14 [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (CC).
15 [2021] ZACC 3; 2021 (3) SA 246 (CC); 2021 (4) BCLR 349 (CC).
16 Id at para 65.
17 Id at para 71.
19
whether Minister Mchunu has engaged criminal conduct. I therefore considered
it necessary to remove Minister Mchunu temporarily from his position, to take
his current powers away from him, and to do so pending the outcome of an
investigation into his conduct through the Madlanga Commission. I also did not
consider it appropriate for Minister Mchunu to be moved to a different portfolio.
The seriousness of the allegations against Minister Mchunu mean t that he
should not be exercising any powers while on suspension. The allegations have
profound implications for public confidence in the executive and the police force
as a whole. So I decided that a proper investigation into the veracity of the
allegations was warranted."
[86] The implications of the above-stated is that upon conclusion of the
investigations by the Madlanga Commission , the President will decide, based on the
information before him at the time, whether to dismiss the Honourable Minister
Mchunu or not.
[87] The first applicant contends that the President's powers in section 91 (2) are
non-punitive and deprive him of the power to adopt interim measures such as special
leave. As the Minister would not be entitled to argue the absence of audi alteram
partem, being a political appointee, an interim measure in order to consider the
evidence of the Madlanga Commission is not an implied power in terms of section
91 (2). This is stated with reference to Economic Freedom Fighters v Speaker of the
National Assemb/y.18
[88] Counsel for the President contends that the President's right to establish the
veracity of allegations before deciding whether to remove a Minister is what is at stake,
and not the Minister's right to be heard. It is accepted that the Minister is not entitled
to audi alteram partem , but it is contended that the President is entitled to seek
information in order to satisfy himself that the removal of the Minister is warranted.
information in order to satisfy himself that the removal of the Minister is warranted.
This step satisfies the procedural rationality leg of the exercise of the power to dismiss.
There is a conceptual difference between procedural fairness and procedural
rationality. The former concerns itself with affording the affected party an opportunity
to respond to the allegations before an adverse decision is taken. The latter involves
18 [2017] ZACC 47; 2018 (2) SA 571 (CC); 2018 (3) BC LR 259 (CC).
20
itself with the process followed before a decision is made.19 The Honourable Minister
Mchunu is entitled to, at a m inimum , procedural rationality· before the President
exercises the power to dismiss or not.
[89] Section 98 of the Constitution empowers the President to temporarily assign
powers to Ministers. It is contended on behalf of the President that the express power
to assign includes the ancillary or implied power to withdraw powers and functions
from a Minister for a period of time, such as in a precautionary suspension.
[90] The President also relies on section 96 of the Constitution, which requires
Ministers to act in a way that is consistent with their office, not to expose themselves
to a risk of conflict and not to enrich themselves personally. It is contended by the
President's counsel that section 96 imperatives leave scope for the President to
properly inform himself before taking a decision to dismiss a member of Cabinet.
[91] It is contended that the President has, given the seriousness of the allegations
against the Honourable Minister Mchunu , found sufficient reason to withdraw powers
and functions from him pending the outcome of the Madlanga Commission's
investigation. As there is a rational connection between the means and its end, the
challenge to the exercise of the implied pow er must fail.
[92] The contribution of the H onourable M inister Mchunu to the determination of the
issues at hand is of limited value, as he was not the decision maker in respect of the
decisions that are being impugned.
[93] It is clear tha the C onstitution does not provide to the President an express
power to place a Minister on leave or even precautionary suspension.
[94] Se ction 84(1) of the Constitution reads:
19 See Eskom Holdings SOC v Resillient Properties (Pty) Ltd; Eskom Holdings SOC Ltd v Sabie Chamber of
Commerce and Tourism and Others; Ch w eu Local Municipality and Others v Sabie Chamber of Commerce and
Tourism and Others (2020] ZASCA 185; 2021 (3) SA 47 (SCA); (2021] 1 All SA 668 (SCA) at para 85 and Road
Accident Fund v Auditor-General of South Africa and Others [2024] ZAGPPHC 358; [2024] 3 A ll SA 914 (GP).
21
"The President has the powers entrusted by the Constitution and legislation,
including those necessary to perform the functions of Head of State and head
of the national executive"
[95] The interpretation question invoked in these proceedings relates to whether a
power to suspend a Minister is a "necessary" power, that is, necessary in order to
exercise the express power to dismiss a Minister in terms of section 91 (2). As correctly
submitted by Adv Madonse la SC, counsel for the Honourable Minister Mchunu,
section 84(1) provides the President with direct powers to place a Minister on leave of
absence. As already pointed out above, the third source of power expressed in section
84(1) is w ide enough to directly empower the President to place a Minister on leave of
absence.
[96] Additionally, the power to place a Minister on leave of absence may be implied
from the power to appoint as well as the power to dismiss, as contended for by the
President. In AmaBhungane , an ancillary implied powe r was described as "a cognate
implied power, pegged it to, and owing its existence to, some primary power". This
echoes a reasonable necessity test in order to imply such ancillary power.
[97] An implied power necessary to execute a primary power must rise above the
level of expedience. More is required-ie. the necessity of the power in order to execute
the primary function.
[98] In Mncwabe v President of the Republic of South Africa,20 the Constitutional
Court expressed itself in the following terms:
"Implied powers are the exception, not the rule. These powers only come into
existence when they are reasonably necessary to give practical effect to the
express powers laid down in legislation. Axiomatically, an implied power must
draw from an enabling legislative provision. An implied power is ordinarily less
likely to be found where the legislation is aimed at certainty." (Footnotes
omitted).
20 [2023) ZA CC 29; 2024 (1) SA C R 447 (C C); 2023 (11) BCLR 1342 (CC) at para 72.
22
[99] In Mphele, the Court held that the power to suspend a Member of the Executive
Council in the Eastern Cape Government is incidental to the power to dismiss. The
application of this principle to the powers of the President vis-a-vis Ministers has
received academic support.21 As indicated earlier, this Court also endorses Mphele.
[100] In Masetlha, the Constitutional Court considered whether the President was
empowered to dismiss the Head of the Na tional Intelligence Agency despite there
being no express power in the Constitution and the applicable statutory framework.
The Court held that the power to appoint necessarily includes the power to dismiss,
finding as follows:
"In sum , I have found that section 209(2) of the Constitution does confer on the
President an implied power to dismiss a head of the Agency and that the power
includes the power to amend the term of office of the incumbent of the Agency
in such a manner as to end the term. I have also found that section 3(3)(a) of
ISA contains a similar implied power to dismiss."22
[101] The President's decision to appoint, dismiss, and assign powers to Ministers is
highly discretionary, with a very high threshold for judicial interference.
[102] The power to place a Minister on precautionary suspension is an ancillary
power to the President's constitutional power to dismiss a Minister in terms of section
91 (2) of the Constitution. It matters not whether this is described as an ancillary or
implied auxiliary power.
[103] The exercise of a powe r to suspend a Minister is reasonably necessary when
it is not apparent whether the facts warrant the dismissal of a Minister or not. The
appointment of the Madlanga Commission as a step in answering this question
indicates that it was a reasonably necessary requirement to appoint the Commission
to enable the President to, in due course, exercise his constitutional powers.
21 See M urray & Stacey "The President and the National Executive" in W oolman & Bishop (ed) Constitutional law
of Sou th Africa 2nd Edition (Juta & C o Ltd, Ca pe Town 2013) vol 1.
22 M asetlha above n 13 at para 73.
23
[104] The President has explained that he placed the Honourable Minister Mchunu
on leave of absence due to the serious nature of the allegations and the need to protect
public confidence in the executive authority. Further, the President needs to have the
benefit of the Madlanga Commission Report to decide whether he should dismiss the
Honourable Minister or not. This explanation indicates that the suspension of the
Honourable Minister was to enable the President to exercise his power in terms of
section 91 (2) to dismiss a Minister. In essence, he needs to assure himself that there
are sufficient grounds for a dismissal. His decision must, as a matter of law, be rational.
In fact, it must also be procedurally rational.
[105] A delay in exercising a power to dismiss due to the need for certainty by
awaiting the recommendations of the Madlanga Commission is indicative of
procedural rationality.
[106] The argument by the applicants that only the Parliamentary Portfolio Committee
may scrutinise the conduct of a Cabinet Minister (because he is also a Member of
Parliament) loses sight of the fact that the Madlanga Commission has a different
purpose. There is no impediment to the Parliamentary Portfolio Committee proceeding
to investigate the same issues that served before the Madlanga Commission.
[107] The applicants further contend that a judge may not preside over a commission
where allegations against judges are investigated. They rely on the incident of natural
law expressed in the dictum nemo iudex in sua causa. The allegations are however
not against the judiciary specifically, but relate to specific instances. As long as the
issues fall within the terms of reference of the Commission there is no impediment to
an impartial judge presiding over the Commission. It is not correct to suggest that only
the Judicial Services Commission is empowered to investigate allegations of
impropriety against judges.Whilst the Judicial Service Commission (JSC) has been
impropriety against judges.Whilst the Judicial Service Commission (JSC) has been
created to regulate the appointment and conduct of Judges, its proceedings are not
designed to assist the President in the exercise of his constitutional powe rs and
functions in relation to Ministers. The JSC may very well investigate complaints against
Judges within the remit of its judicial powers and functions. However, the exercise of
the JSC's oversight and disciplinary roles is not the only means of enquiry available to
24
the President. Appointing a Commission places the President in control of the time
frame to produce a report. The JSC is not beholden to the President to act
expeditiously to suit the needs of the President. It acts within its own statutory
framework.
[108] The threat to public trust in the Minister of Police and the seriousness of the
allegations against the Honourable Minister Mchunu are sufficient reasons for the
establishment of the Commission. It involves "a matter of public concern" as envisaged
in section 1 (1) of the Commissions Act,23 which Act has been expressly invoked in the
appointment of the Commission. The President will also take guidance from the
Commission Report on whether he should retain or dismiss the Honourable Minister
Mchunu.
[109] The establishment of the Madlanga Commission, in order to assist the
President and to ventilate a matter of public concern, is rationally linked to the exercise
of the President's powers expressed in sections 91 (2), 91 (3)(c), 96 and 98 of the
Constitution read with section 1 (1) of the Comm issions Act. Basically, there is nothing
unlawful or irrational in establishing the Madlanga Commission. Accordingly, an attack
against its establishment and or composition falls to be rejected and dismissed.
The legality and rationality of the appointment of the Honourable Minister
Cachalia.
(11 0] The applicants contend that the Constitution does not provide for the
appointment of an Acting Minister from outside the ranks of members of Parliament.
An appointment in terms of section 91 (3)(c) of the Constitution wou ld therefore be ultra
vires.
(111] The applicants proceed from the vantage point that, at the time Professor
Cachalia was assigned the acting powers of Minister of Police, he was not a Cabinet
Minister. The suggestion is even made that the subsequent appointment of Professor
Cachalia as a Minister was an ex post facto correction of an error pointed out by the
applicants in their letter of demand.
23 A ct 8 of 194 7 as amended .
25
[112] The applicants contend that the appointment of Professor Cachalia is not
rational because having two Ministers in the same portfolio is a waste of public
resources.
[113] The President's Acts referred to below, annexed to the President's answering
affidavit, however, make it clear that Professor Cachalia was first appointed Minister
in terms of section 91 (3)(c) of the Constitution. In a separate Presidential Act a day
later, he was assigned the powers of Minister of Police -in the temporary absence of
Minister Mchunu.
[114] In President's Act 250/2025, dated 13 July 2025, the President placed Minister
Mchunu on leave of absence, with immediate effect, until further notice. We interpose
to deal with a submission that the usage of "until further notice" is indicative of a lack
of a rational link between the placing on special leave and the outcome of the
Commission. We disagree. The required rational link is that of the special leave and
the ultimate exercise of dismissal power. The usage of the phrase until further notice,
is a surplusage that lacks meaningful legal consequences. On the contrary, nothing
meaningful is to be attached to it24. In President's Act 278/2025, dated 31 July 2025,
he appointed Professor Cachalia as Minister without portfolio in terms of section
91 (3)(c) of the Constitution. In President's Act 282/25, dated 1 August 2025, he
assigned in terms of section 98 to Professor Cachalia the powers of the Minister of
Police.
[115] The applicants have therefore approached the court on a factually erroneous
basis. There is no reason to second-guess Presidential Acts, which are numbered in
sequence, and which confirm that Professor Cachalia was a Cabinet Minister when he
was assigned the powers of the Minister of Police.
[116) Further, it is within the President's powers to appoint two Cabinet Ministers from
outside the ranks of members of Parliament.
24 Effectively, the phrase 'until further notice' simply means until an announcement is made (that
something has been changed back to the way it was ).
26
[117] There is therefore no basis to impugn the appointment of Prof Cachalia as
Minister without portfolio and to then assign to him the powers of the Minister of Police.
[118] This is particularly so where the temporary absence of the Honourable Minister
Mchunu is for reasons clearly stated by the President, namely:
118.1 To protect public confidence in the position of the Minister of Police.
118.2 To permit the Mad langa Commission to operate without interruption .
..
In this regard, the Honourable Minister Mchunu would be a witness in
the Commission's proceedings and would need to attend the
Commission proceedings to be apprised of allegations made against
him. He would not have been free to do this if he still had to continue
with his obligations as Minister of Police.
[119] Mr Mpofu SC fervently argued that section 91 (2) of the Constitution must be
interpreted to mean that the appointment of a Minister must symbiotically happen with
the assignment of powers and functions.There are textual pointers in sec 91 indicating
otherwise. The text of section 91 (2) clearly affords the President three sets of powers;
namely; (a) to appoint; (b) to assign powers and functions; and (c) to dismiss. It is
illogical to think that all these powers ought to be exercised simultaneously. There is
a comma used after the power to appoint, which is followed by the usage of "and"
before the power to dismiss in the text of the section.
[120] Commas are crucial for clarity and preventing ambiguity. They are used as
separators and to connect independent clauses. Punctuation may seem trivial in
everyday language, but in the realm of statutory, it holds immense significance.25 On
the proper interpretation of the section using text, context and purpose, there is nothing
that would prevent a President from first appointing and later assigning powers and
functions. Later, in respect of a Minister, if needs be, the President may dismiss the
functions. Later, in respect of a Minister, if needs be, the President may dismiss the
appointed and assigned Minister. Punctuation is part of a statute and cannot be
ignored by Courts when interpreting a statute. Where punctuation discloses a proper
legislative intent or conveys a clear meaning, the courts should give due weight to it.
25 See Ma rcin "Punctuation and the interpretation of Statutes" (1977) 9 CO NN L Rev 227.
27
[121] The usage of a comma in the section illuminates the clear intention of the
legislature that the assignment of powers and functions can, and must, follow an
appointment as a Minister. In order to buttress this point, regard must be had to the
provisions of section 91 (1). The section informs us that a Cabinet consists of (a) the
President; (b) the Deputy President; and (c) Ministers. Of significance, the section
does not state that only "assigned" Ministers form part of the Cab inet. In terms of
section 46( 1) of the Constitution, the National Assembly consists of no fewer than 350
and no more than 400 women and men elected as members in terms of an electoral
system. When this section is read with section 91 (3)(b), these women and men are all
potential M inisters. It is from this Assembly that a President may select Ministers. Once
a Minister is selected by the President, such a Minister may be appointed to Cabinet.
[122] Once a Minister is so appointed, he or she becomes a member of Cabinet.
Section 95 provides that before Ministers can begin to perform their functions, they
must swear or affirm faithfulness to the Republic and obedience to the Constitution.
This section confirms, in our view, the sequence that must happen in the case of a
selected Minister; namely; (a) appointment; (b) assignment of powers and functions;
and (c) swearing in. The text of the Constitution uses the word "Minister", even for the
purposes of selection. Take, for example, two persons from outside the Assembly are
referred to as Ministers even before appointment. Section 98 makes the point clearer.
There, reference is made to a Cabinet member , who we know that, in ~erms of section
91 (1 ), may either be a Deputy Minister or Minister.
[123] Reference to Cabinet members in section 98 is suggestive of the fact that the
Cabinet may have been appointed but not yet assigned powers and functions of
Ministers. For all the above reasons, the conclusion we reach is that a sensible and
Ministers. For all the above reasons, the conclusion we reach is that a sensible and
business-like interpretation to adopt is that an appointment of a Minister precedes the
assignment of functions. Having happened with Honourable Minister Cachalia, there
is no illegality in his appointment.
28
The legality and rationality of the establishment of the Madlanga Commission .
[124) Earlier, this Co urt briefly touched on the issue of the Madlanga Commission
when dealing with the placing of the Honourable Minister Mchunu on leave of absence.
Now, this Court pointedly deals with the impugned decision raised by the applicants
before us. The appointment of the Madlanga Commission is assailed with reference
to academic writing by Michael Bishop26 and Grant Hoole27 , contending that:
124.1 Commissions engaged no legal consequences in their own right as
they make no binding findings, but reflect ·the opinions of the
Commiss ioner.
124.2 Governments tend to abuse Commissions of Inquiry to defer or
escape accountability.
124.3 Sometimes the costs of Commissions do not justify the limited benefit.
124.4 The institution of such Commiss ions needs to be viewed with
scepticism and caution.
124.5 The most useful value of such Commissions is the enhancement of
public participation in a democracy.
[125] The authors m erely make the point that Commissions may be used to deflect
attention. But the wide scale participation brought about by them enhances our
democracy.
[126) The Ma dlanga Commission was appointed by the President in terms of section
84(2)(f) of the Constitution due to "serious constitutional, security and rule of law
concerns". In terms of the proclaimed terms of reference, the Commissions Act shall
apply.
[127) The Comm ission is granted broad investigatory powers, but in terms of
paragraph 14 of the terms of reference, it is expected of the Commission to make
recommendations in its final report to enable the President to take appropriate action.
This is a clause which links the appointment of the Mad langa Commi ssion to the
26 Michael B ishop: An accidental Good: The Role of Co m missions of Inquiry in South African
De m ocracy (2014) http//www.nyslawreview.com/wp-ontent/uploads/sites/16/2014111 /Bishop.pdf.
De m ocracy (2014) http//www.nyslawreview.com/wp-ontent/uploads/sites/16/2014111 /Bishop.pdf.
27 G rant Ho ole R econsidering Comm issions of Inquiry as Plural and Participatory Institutions: A
Critical Reflection on M adingwana, (2018) 8 CC R 221
29
question whether, amongst others, the President should retain the Honourable
Minister Mchunu or dismiss him.
[128] The President has made it clear that the precautionary suspension of the
Honourable Minister Mchunu and the appointment of the Madlanga Commission are
linked in that the allegations by General Mkhwanazi would influence the question of
whether the Honourable Minister Mchunu should be retained or dismissed.
[129] The power of the President to appoint a Commission in terms of section 84(2)(f)
is an original constitutional power which cannot be delegated. Further, a high bar to
judicial interference is set by virtue of the President's expressed need for information
in order to execute his executive powers pertaining to the retention or dismissal of the
Honourable Minister Mchunu.
[130] Nothing that is said publicly by the President, the Honourable Minister Mchunu
or third parties regarding the establishment of the Commission will detract from the
President's authentic constitutional power to so appoint a Commission.
(131] A similar debate was entertained by the Constitutional Court in President of the
Republic of South Africa v SARFU. 28 Procedural questions, as far as the President's
conduct is concerned, are not governed by public utterances. Such public utterances
do not detract from the President's power to appoint a Commission. 29 The only
question in this regard is whether the President applied his mind when instituting a
Commission. 30
[132] In this instance, the President, on the facts presented, did rationally apply his
mind to the establishment of the Madlanga Commission. It is a decision that cannot
be faulted from a legality and rationality vantage point.
[133] In the premises, the entire application falls to be dismissed.
28 [1999] ZACC 11 ; 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC).
29 Id at para 44.
30 Id at para 45.
30
[134] It is apposite for this Court to also very briefly deal with the issue of the
suspension or interdict referred to in the Notice of Motion. Mr Mpofu SC correctly
submitted that a setting aside of a President's decision required confirmation by the
Constitutional Court -hence a suspension pending confirmation. As already outlined
above, this Court is not making such a declaration. We do mention in passing that a
temporary interdict or temporary relief mentioned in section 172(2)(b) still has to tick
all the boxes applicable to an interdict remedy, failing which a court must refuse to
exercise its discretionary powers31 . On this score, lhe applicants have failed to
persuade the Court. What the applicants sought is a temporary interdict contemplated
in section 172(2)(b) of the Constitution. Since no constitutional invalidity order has
been made, that should be the end of the enquiry.
The issue of costs
[135] The normal rule of an award of costs is that it follows the results. When it comes
to costs, this Court possesses a very wide discretion.
[136] The applicants asserted the infringement of constitutional rights. Although they
failed in the quest to vindicate any constitutional infringement, on application of the
Biowatch principle, they ought not to be mulcted with costs. This matter raises a matter
of national importance and requires an interpretation of the Constitution to determine
the rights and obligations of the President. To that extent, the application of the
Biowatch principle is warranted. The principle should also apply in respect of the
reserved costs of 18 September 2025.
[137] Because of all the above reasons, the following order is made.
1. The application is dismissed.
2. Each party to bear its own costs.
31 Setlogelo v Setlogelo 1914 AD 221, as endorsed in National Treasury and others v OUTA 2021 (11)
BCLR 1148 (CC) at para 50.
31
Date heard:
Date of judgment:
Appearances
For the First Applicant:
For the Second Applicant:
For the First Respondent:
27 November 2025
10 December 2025
)
L M MOLOPA-SETHOSA
JUDGE OF THE HIGH COURT
GAUTENG, PRETORIA
G N MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG, PRETORIA
E T LABUSCHAGNE
JUDGE OF THE HIGH COURT
GAUTENG, PRETORIA
D.C Mpofu SC, B.H Matlhape and K.D Monareng
instructed by KMNS Incorporated cl o Nkome
Attorneys Incorporated.
M.A Qofa-Lebakeng and Z Makangela instructed
by T Mpumlwana & Associates c/o Nkome
Attorneys Incorporated.
N.H Maenetje SC, N Muvangua, N Stein, N
Rasalanavho, K Mayo (pupil) and J Hunter-
32
For the Second Respondent:
Parsonage (pupil) instructed by the State Attorney,
Pretoria.
T.G Madonsela SC , M Rantho and M Tsele
instructed by RS Bhila Attorneys c/o Makoma
Selane Attorneys.
33