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
1 September 2010

More thoughts on Blade and the cabinet

When Minister Blade Nzimande was appointed to the Cabinet by President Jacob Zuma, some voices in the South African Communist Party (SACP) questioned the wisdom of him continuing to serve as the general secretary of the SACP. Given the experience of the SACP with some of its members who served in Thabo Mbeki’s cabinet and who often seemed to follow cabinet decisions instead of SACP policy (Geraldine Fraser-Moleketi being the most obvious example), some SACP members were worried that Nzimande’s membership of the cabinet would make his position as leader of SACP untenable.

They warned that he would be required to serve two masters at the same time. Although both masters were members of an alliance, these masters did not always take the same position on a particular issue. Nzimande would then be forced either to defy the cabinet in breach of the Constitution when, as its leader, he would be required to put forward the official SACP position, or he would be forced to abide by cabinet decisions and thus would become incapable of diligently performing his function as leader of the SACP.

As I pointed out earlier this week, South Africa has adopted a system of political party government in which strict party discipline is enforced in the legislature and individual and collective cabinet responsibility for the executive is mandated by sections 92 and 96 of the Constitution. 

This means that ordinary MPs may debate an issue vigorously within the ANC until the caucus has made a decision on it, after which they were obliged to toe the party line or face the consequences (the most severe of which would be to be redeployed out of a job, as happened with Andrew Feinstein when he refused to follow instructions from the ANC – and especially Essop Pahad a.k.a Essops Fables – to stop his vigorous pursuit of arms deal corruption as a member of SCOPA). 

If ANC MP’s in Parliament also happened to be SACP leaders or COSATU leaders they would find themselves in a difficult position as they would be required to vote in favour of measures which their parties did not support. Other MP’s would also face such difficulties – as was the case with the adoption of the Termination of Pregnancy Act and the Civil Union Act.

Similarly, a cabinet minister could forcefully argue his or her position inside and outside cabinet until the cabinet had taken a position on that issue, after which the cabinet minister had to abide by that decision or had to resign. What the cabinet minister cannot do is stay in the cabinet but criticise a decision of that cabinet in his or her capacity as leader of Cosatu or the SACP because this would undermine cohesive government and collective cabinet responsibility.

It also undertmines the authority of the President, who is the  leader of the cabinet. In some jurisdictions the Prime Minister or the President fires Ministers who show too much dissent – often when the President or the Prime Minister is insecure and paranoid about his or her future or has a vindictive streak beyond that which politicians are known for.

This suggests that those in the SACP who expresssed disquiet with Nzimande’s duel role might have had a point: being the leader of the SACP or COSATU is probably incompatible with membership of the Cabinet or the National Assembly. Blade Nzimande sees things differently, of course. If all cabinet Ministers followed his example the cabinet would become even more dysfunctional and cabinet government would run the risk of breaking down completely, in which case service delivery would suffer a further blow. Policy would be made and amended on the trot (something former cabinet Minister Kader Asmal warned against earlier this year) and the system of individual and collective accountability of cabinet ministers provided for in the Constitution would break down.

Are there ways to deal with this and to save Minister Nzimande from having to choose which master he is serving? Could he hold on to his R1.1 million BMW and the perks associated with being a Minister (including occasional two week stays at the Mount Nelson Hotel) while also holding on to his job as general secretary of the SACP?

Murray and Stacey, in their Chapter in Constitutional Law of South Africa, suggest a few options. One would be for a Minister to use the “unattributable leak”. A Minister could leak his opposition to a specific cabinet decision to the media on condition that he or she not be named. Cabinet Ministers in the United Kingdom are masters of this ploy. It allows one to have one’s views known to those sections of the public whose support one wishes to retain (always a good thing when one has to stand for a leadership position), without officially breaking the rules of collective cabinet responsibility. Given the fact that such unattributable leaks are one of the reasons advanced by Nzimande and others for the establishment of a Media Appeals Tribunal, Minister Nzimande might not find this option appealing.

Another option would be to release carefully crafted statements that hint at dissent without actually defying the President and cabinet colleagues. Those who support Nzimande’s statement on behalf of the SACP about the strike argue that this is exactly what he did. I am far from convinced that they are correct, but judge for yourself. According to its spokesperson, Themba Maseko, cabinet had agreed as follows on the strike:

Cabinet is disappointed with the public sector unions’ rejection of the state’s offer of a 7% annual increase and the R700.00 a month housing allowance for public servants. The offer is already way above the inflation rate of 4.5 %. The state’s final offer represented a move from the original offer of 5.2 % and a R500.00 a month housing allowance. This is a clear demonstration that Government was negotiating in good faith in an attempt to meet the demands of our employees.  While Government fully understands and appreciates the plight of all the public servants regarding low wages, it has to be mindful of its responsibilities to all South Africans as the final offer already places a huge burden on the fiscus. We had to make a choice between increasing the salary bill to unaffordable levels by meeting the union demands and cutting other urgently needed services.It’s a choice between improving the wages of state employees and continuing to address the service delivery needs of poor communities and the unemployed.

Nzimande’s statement on behalf of the SACP reads partly as follows:

The CC calls on government and the unions to ensure that there is a very speedy resolution to the strike. It is about to enter its third week now and the longer it is prolonged the more everyone suffers and the danger of unbridgeable positions becoming entrenched increases. The SACP once more reiterates its conviction that the demands of the public service workers are legitimate and we support them in their struggle for just remuneration. In particular, we note that the wage gap in the public sector between the highest paid echelons and the lowest is 91 to 1. Although the gap in the private sector is even wider, we cannot deny that the public sector wage gap is shameful, and every effort must be made to progressively close this unacceptable gap. In this regard, the CC calls on government to set an example by ensuring that there is a collective moratorium on salary increases in the upper echelons of government.

I guess if one parses words one could argue that the two underlined sections are not in direct opposition to one another, but it would take some nifty verbal gymnastics and would stretch the meaning of words a bit further than any ordinary person would be able to do – at least while keeping a straight face. Can one at the same time be disappointed with the actions of strikers who rejected an offer of government and decided to strike and support their strike? I guess its a matter of interpretation (as is almost everything else in life) but my head feels like bursting just trying to reconcile those two statements.

And what about the poor ordinary MP’s who are far more vulnerable as they are not in leadership positions and have not been directly elected so can lose their seats in parliament at the whim of the leadership? What must they do when their party takes a position with which they vehemently disagrees, but which they cannot defy by voting against it for fear of losing their seats in Parliament?

One option would be to take a leaf out of the book of Schabir Shaik and to develop a serious illness on the day that a vote is to take place. But this will not signal to one’s constituents that one really did not like what the party did. Another would be to leak news of one’s opposition to a specific decision to the media on condition that one’s name is not mentioned and then to vote for the bloody measure (or against it – if that is what one’s party had decreed) in any case. Political party leaders and whips hate this kind of thing, but it does happen all the time. Andrew Feinstein did it in protest against President Thabo Mbeki’s speech to the caucus in which he argued that HIV and Aids was part of a CIA plot. It builds some flexibility into the system while retaining a semblance of discipline.

Where a political party leader is at the top of his or her game and wields power confidently or, in some cases, ruthlessly, there is less of this kind of ill discipline. With the exception of Pregs Govender and Andrew Feinstein, for example, few ANC MP’s ever dared to go against the party line once Thabo Mbeki had spoken and had indicated what the official line was going to be (sometime after vigorous “debate”). Of course, because of this in the end the seething resentment against King Thabo built up to such a degree that he was thrown out of office at Polokwane.

The fact that Ministers are leaking stuff left right and centre, that Blade Nzimande issues statements that seem to contradict the official cabinet position and that ordinary ANC MP’s are gossiping and leaking to the media like over-excited school boys and girls, suggests that President Jacob Zuma does not nearly have the same stranglehold on his Parliamentary party as Thabo Mbeki did.

But ironically, it might save Zuma’s bacon – at least for now – because all the factions in the party feel that they have a chance to have their side of the story heard and even to have their view prevail because the King is so weak and not nearly as ruthless – at least not on the surface – as that other guy whats-is-name who used to strike terror into the hearts of MPs and cabinet ministers to such a degree that they were all too scared even to admit to journalists that they believed that HIV was a virus that caused Aids.

2015 Constitutionally Speaking | website created by Idea in a Forest