Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
3 August 2012

Maybe it’s spelt M-a-n-g-a-u-n-g?

Can President Jacob Zuma fire Basic Education Minister Angie Motshekga (today, tomorrow or any other time he wishes to do so), or is he constrained by the Constitution to wait for the completion of various investigations before he acts? (Whether firing the Minister would actually address the far larger institutional problems around our education system or the failure of accountability in government, is another question.) When he was interviewed by Talk Radio 702 host Redi Tlhabi, President Zuma claimed that he could not dismiss Motshekga.

When asked when he was going to fire the Minister, Zuma responded that he could not fire anyone without due process. “You can’t just fire someone without verifying the facts,” he said. “You don’t know who is responsible for that. You can’t say the minister sitting in Pretoria in the office is responsible. Even if the buck stops there she needs to find out who the individual is [that’s] responsible before she takes action,” he said.

Here we have to distinguish between three different questions which are not necessarily related.

First, one can argue about whether it is wise for the President to retain or fire a specific Minister, based on whether one believes that the Minister is doing a good job or is making a hash of his or her Department. Thus, when then President Thabo Mbeki fired Deputy Health Minister Nozizwe Madlala-Routledge (ostensibly because she was not authorised to go on a oversees trip, but widely believed to have been because she went to visit Frere Hospital in the Eastern Cape and had then reported that conditions at the maternity ward were a “national disaster”), some of us criticized him for doing so.

Why get rid of a Deputy Minister that does not deny problems and does not believe that it is perfectly acceptable to say that eating garlic and olive oil is potentially just as valid a treatment for people living with HIV than life-saving anti-retroviral drugs? Supporters of the then President, who embraced his form of denialism, supported the firing of Madlala-Routledge, advancing all kinds of arguments in the process. Personally I found these arguments at best unconvincing and at worse a bit ludicrous. My point is that where one stood on this issue had everything to do with one’s politics and one’s knowledge about HIV and nothing to do with the law.

Second, when a President fires a cabinet Minister political consequences might follow from this and one can argue what these might be and to what extent the President should take cognisance of the political fall-out. Firing a Minister that is popular inside the governing party might expose the President and make him vulnerable in his or her internal party battles. But not firing a Minister, who has rightly or wrongly been identified by most voters as one of the main stumbling blocks to the speedy delivery of school textbooks, might be bad for the governing party and might cost it support. A President will have to weigh up these purely party political considerations and considerations about his or her own power and position, before firing a Minister. Sadly many Presidents will often make a decision based on what he or she believes to be purely in his or her own interest, rather than on what is in the interests of the country.

Lastly, the question is whether a President is required by the Constitution or other law to follow “due process” before firing one of his or her Ministers, as President Zuma claimed in his (in)famous interview with Tlhabi. The short answer is that our President (once again) got it wrong when he made this claim. He has no legal obligation to follow a procedurally fair process when he dismisses members of his cabinet. This much is clear from the Constitutional Court’s jurisprudence

In Masetlha v President of the Republic of South Africa and Another then National Intelligence Agency (NIA) boss Billy Masetlha challenged his dismissal by President Mbeki, amongst other things because the President had acted procedurally unfair by not affording him an opportunity to be heard before the impending dismissal. In dismissing this argument, the Constitutional Court pointed out that the Promotion of Administrative Justice Act expressly excludes the exercise of these kinds of executive powers by the President from its ambit.

The Constitution bestows special powers on the President to appoint the head of the NIA (as well as members of his or her cabinet). This means the exercise of this power will only be reviewable on narrow grounds. Moreover, said the Constitutional Court, the power to dismiss is a corollary of the power to appoint and it would “not be appropriate to constrain executive power” to dismiss the head of the NIA (or by implication, a cabinet Minister) by expecting the President to adhere to the requirements of procedural fairness. Quoting from a previous judgment, the Court warned:

In determining what constitutes procedural fairness in a given case, a court should be slow to impose obligations upon government which will inhibit its ability to make and implement policy effectively (a principle well recognised in our common law and that of other countries). As a young democracy facing immense challenges of transformation, we cannot deny the importance of the need to ensure the ability of the Executive to act efficiently and promptly.

Of course, this does not mean that there are no constitutional constraints on the exercise of executive authority by the President. The President is always required to act lawfully, rationally and in a manner consistent with the Constitution. But when he or she fires a Cabinet Minister, the President is exercising a quintessentially party political power and need not adhere to requirements of due process. If it is politically expedient to do so, our President can fire his whole cabinet tomorrow without waiting for any report and without asking the individual Cabinet Ministers why they think they should not be fired.

The President might argue that it is rude to fire Minister Motshekga before he has received the reports from the various task teams appointed to investigate why people who are paid to do this job, never ensured that the children of Limpopo received the textbook they require and why, according to the Metcalf report, the Minster seem to have misled the President and the public about the state of affairs. But this argument is not a legal argument but one of style (and perhaps one related to internal party politics).

So, if the President really though that the most pressing issue currently facing our government was the textbook problem and if he believed that his Cabinet Ministers are responsible for what happens in their Departments and should be held accountable if terrible cock up occurs in that Department (which also happens to be politically hugely embarrassing for the governing party), then he could long since have fired Minister Motshekga. But perhaps the President are animated not by what is in the best interest of the learners of Limpopo, but by other considerations. (I suspect these other considerations might be spelt M-a-n-g-a-u-n-g.)

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