Case  CCT 206/25
[2025] ZACC 21

Hearing Date: 30 July 2025

Judgement Date: 03 October 2025

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Friday, 31 July 2025, the Constitutional Court issued an order refusing direct access and finding that its exclusive jurisdiction in an urgent application brought by Mr Jacob Gedleyihlekisa Zuma and the uMkhonto weSizwe Party was not engaged. On Friday, 3 October 2025, the Constitutional Court handed down reasons for that order.

The application arose from allegations made by Lieutenant-General Nhlanhla Mkhwanazi, the KwaZulu-Natal Provincial Commissioner of Police, during a media briefing on 6 July 2025. General Mkhwanazi alleged the existence of a sophisticated criminal syndicate that had infiltrated law enforcement, intelligence structures, and the judiciary, with allegations implicating Minister Senzo Mchunu, the Minister of Police. In response, the President on 13 July 2025 announced four decisions: placing Minister Mchunu on leave of absence; appointing Professor Firoz Cachalia as Acting Minister of Police with effect from 1 August 2025; appointing Minister Gwede Mantashe as Acting Minister of Police until Professor Cachalia assumed office; and establishing a judicial commission of inquiry to be chaired by the then Acting Deputy Chief Justice Mbuyiseli Madlanga. The applicants challenged the first, second and fourth decisions.

The applicants sought to invoke the Court’s exclusive jurisdiction under section 167(4)(e) of the Constitution, which reserves for this Court the competence to determine whether Parliament or the President has failed to fulfil a constitutional obligation. Alternatively, they sought direct access under section 167(6)(a) of the Constitution. The applicants argued that the President had no constitutional power to place a Minister on leave of absence and that the decision was irrational; that the appointment of Madlanga ADCJ to chair the Commission was inappropriate because the judiciary cannot investigate itself; and that Professor Cachalia’s appointment as Acting Minister violated the Constitution since he was neither a Cabinet member nor a Member of Parliament.

The President contended that this Court’s jurisdiction was not engaged. He submitted that this was a challenge to the lawfulness of the exercise of decision-making powers, not a case about his failure to fulfil a constitutional obligation.

In a unanimous judgment, penned by Mathopo J, the Court held that jurisdiction is determined on the pleadings, and not the merits. It further held that the founding papers challenged the lawfulness of specific decisions but lacked anything more than broad allegations that the President had failed to comply with constitutional obligations. The Court further held that the Constitution distinguishes disputes about the President’s conduct from those where he has failed to fulfil a constitutional obligation. Section 167(4)(e) must be narrowly construed. The applicants’ complaint was not that the President failed to exercise his powers, but that he exercised them improperly. Such complaints fall within the standard review jurisdiction of the High Court.

The Court rejected reliance on section 83(b) of the Constitution as insufficient on its own to ground exclusive jurisdiction. Section 83(b) must be coupled with a specific constitutional obligation that has not been fulfilled. No such agent-specific obligation was identified. None of the impugned decisions constituted a failure by the President to fulfil his constitutional obligations.

On direct access, the Court held that the Constitutional Court grants direct access only in exceptional circumstances. Several considerations militated against it. The novelty and importance of the issues favoured initial consideration by the High Court. There was no urgency necessitating this Court sitting as a court of first and last instance. The High Court could grant interim relief pending any confirmation proceedings. The more important the issues, the more compelling the need for this Court to be assisted by another court’s views.

The Court concluded that the application could not succeed on either threshold ground. It was not competent for this Court to opine on the merits, and that issue must be left for the appropriate forum should the applicants be so inclined.

On costs, the Court found that although the applicants’ case was unsuccessful, the constitutional questions they sought to raise were not entirely without merit. In the result, the Court held that each party should bear their own costs, recognising both the constitutional importance of the underlying issues and the procedural deficiencies in the application.

The Full judgment  here