As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The arrest of Sheryl Cwele, wife of the Minister of State Security Siyabonga Cwele, on drug trafficking charges is in many ways a remarkable event. Cwele and co-accused Frank Nabolis (who, playing into prevalent xenophobic attitudes, have consistently been identified by the media as a Nigerian) face three charges: dealing or conspiring to deal in drugs; procuring a woman to collect drugs in Turkey and arranging for another woman to smuggle cocaine.
Given the (probably unlawful) manner in which charges against President Jacob Zuma was dropped, and the unceremonious manner in which Parliament got rid of the Scorpions who had the cheek to go after ANC bigwigs, many South Africans would have formed the firm impression that politically well-connected individuals are above the law.
The arrest of Cwele, whose husband is South Africa’s spy chief and thus a very powerful member of the cabinet, signals that the criminal justice system is not nearly as corrupted by political nepotism as one might have suspected. Regardless of whether Cwele is eventually convicted or not (a matter for our courts to decide on), it bodes well for the system that such a high-powered and well-connected individual could be arrested on suspicion of drug trafficking. Somewhere, somehow, some people are doing their jobs, which comes as a great relief after the trauma of the Zuma stitch-up.
Sadly, the government has not dealt with this potential scandal in the most effective and wise manner. I happen not to agree with national Police Commissioner Bheki Cele, who recently lambasted e.tv for broadcasting claims by alleged criminals (who, like Cwele, must be presumed innocent until proven guilty in a court of law) that they will target tourists during the world cup. “A friend of a criminal is a criminal – e.tv clearly is a crime kisser. They’ve exposed themselves as such,” Cwele said at the time.
If one follows Commisioner Cwele’s “logic” (I use the term rather loosely here), our Minister of State Security is a criminal as he is actually married to someone who is alleged to have committed a crime. That is of course nonsense. Minister Siyabonga Cwele is not a criminal merely because his wife is being charged with drug trafficking.
We simply do not know what transpired in the Cwele household, whether the Minister had any inkling of his wife’s alleged nefarious activities or whether the Minister had been asked by his wife to use his power and influence to try and prevent her arrest. The Police Commissioner obviously thinks differently, but it would be unfair to judge or punish Minister Cwele on the basis of what his wife might or might not have done.
However, this does not mean that the arrest of the Minister’s wife is a private matter. It was therefore rather unwise of the government to avoid all comment on the matter and to pretend that this very embarrassing and politically explosive arrest of the Minister of State Security’s wife never happened. Given the fact that the Ministers are constitutionally accountable to Parliament and indirectly to the public at the very least the Minister had a duty to the public to reassure us and to issue a statement in which he made it clear that – without prejudging the case against his wife in any way – he wanted to state categorically that he personally had absolutely no knowledge of any alleged drug trafficking.
The President also had a duty to meet with the Minister to talk about the possible need for the Minister to temporarily step aside. Section 96(2)(b) and (c) of the Constitution states that Members of the cabinet may not:
act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.
This obligation on Ministers regarding conflicts of interest is quite stringent. In this regard the Constitution is quite clear: Regardless of whether there is indeed an actual conflict of interest or not, a Minister has a constitutional duty to avoid any situation where there is a mere RISK of a conflict of interest between his official duties and his private interests.
One assumes the Minister has a private interest in seeing that charges against his wife are dropped or at least that she is acquitted of the charges. But the Minister is also officially the spy chief with access to wide network of spies who – we know from the Zuma saga – can eavesdrop on prosecutors and witnesses and could potentially influence the outcome of the case. The question is not whether the Minister will indeed abuse his power to try and find out more about the case against his wife or to try and undermine the state’s case. The constitutional question is whether there is any risk that this may happen.
Clearly there is such a risk. Saying this does not in any way prejudge the matter as one is not making any comment about the honesty and integrity of the Minister. Instead, one is stating an objective fact, namely that a risk of a conflict of interest exists. This means constitutionally speaking, the Minister has a duty to step aside from his post until the case against his wife has been concluded. If he fails to step aside he will inevitably be embroiled in a situation where there is a risk of a conflict of interest between his official responsibilities and his private interests.
Such a move would in no way signal that the Minister’s wife is guilty or that the Minister himself is somehow to be punished for something that his wife is alleged to have done. It would merely uphold the Constitution which requires a Minister to avoid any risk of a conflict of interest. This might be hard on the Minister – as it is hard on the spouse of any person charged with a crime – but it is required by principles of good governance and by the Constitution.
The fact that the ANC-led government has not reacted officially to the news at all and the fact that the President has not met Minister Cwele to request him to step aside temporarily, suggests a failure by the government to appreciate the importance of avoiding the risks of conflicts of interest. It represents a spectacular failure to display respect for ethical and appropriate behaviour by public officials. It also places a question mark over the government’s willingness to abide by the provisions of the Constitution.
Minister Cwele must step aside. If he does not, the government will be flouting the Constitution.BACK TO TOP