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
11 December 2015

No, a court will not invalidate the appointment of the Minister of Finance

Many South Africans (at least those with internet access) seem to be upset and worried by President Jacob Zuma’s firing of Finance Minister Nhlanhla Nene, the appointment of the unknown Des Van Rooyen in his place, and the initial failure of the President to explain or justify the move. Some have asked me whether the decision can be challenged in court. This question is based on a misunderstanding of the nature of South Africa’s constitutional democracy.

The President of South Africa is elected (and can be removed) by the majority of members of the National Assembly. This means that the political party (or parties) that can muster a majority in the National Assembly decides who serves as President of the country. Currently that party is the African National Congress (ANC).

When the President does something destructive or political unpopular there are several ways in which he or she can ultimately be held accountable. First, the party that elected the President can support a vote of no confidence in the President and his or her cabinet in terms of section 102(2) of the Constitution.

If the majority party supports such a vote (it must be supported by a majority of the members of the National Assembly), the President, the other members of the Cabinet, and any Deputy Ministers must resign.

In terms of section 102(1) the National Assembly, by a vote supported by a majority of its members, can also pass a motion of no confidence in the Cabinet excluding the President. The President must then reconstitute the Cabinet.

If the majority party is unhappy with a cabinet appointment, it can thus force the President to reverse that appointment by adopting a vote of no confidence in his or her cabinet. It can then indicate that it will support a vote of no confidence in both the President and his or her cabinet if the President re-appoints a specific member of the cabinet.

If the majority party fails to adopt a vote of no confidence in terms of section 102(1) or 102(2), this means that the majority party continues to support the President and his or her cabinet. The majority party is thus accountable for the actions of the President and the cabinet and, ultimately, for the composition of the cabinet.

It is true that in terms of section 91 of the Constitution the President has the power to appoint the Deputy President and ministers, but the majority party in Parliament has the power to veto such appointments in terms of section 102.

The Constitution grants the President wide powers to appoint members of his or her cabinet – subject only to the caveat that the majority party in the National Assembly has an effective veto over such appointments.

All but two of the Ministers appointed to the cabinet must be selected from among the members of the National Assembly. To become a member of the National Assembly you have to be a member of a political party. But otherwise the bar is set pretty low. You cannot become an MP if you are an unrehabilitated insolvents; have been declared to be of unsound mind by a court; or was convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine and have completed your sentence within the previous five years.

The President can also appoint two members of the cabinet from outside the Assembly. The Constitution does not explicitly require that these two members must comply with the minimum criteria for membership of the National Assembly, which arguably means the President could appoint somebody to the cabinet currently serving a prison sentence. However, the minimum requirements set for membership of the National Assembly could arguably also be applied to the two non National Assembly cabinet appointments.

Nevertheless, this suggest that legally the President can appoint pretty much anyone he or she wishes to his or her cabinet: Wouter Basson as Minister of Health; Oscar Pistorius as Minister for Women and Children; John Block as Minister of Public Enterprises. If the governing party does not object and veto the appointment via section 102(1) and if the voters do not object to the appointment by voting the government out of office, that will be the end of the matter.

Of course, when the appointment of a specific cabinet minister is politically unpopular and the majority party nevertheless refuses to veto the appointment in terms of section 102(1), the party is ultimately responsible for the appointment. Voters then have the choice in-between elections to place pressure on the majority party to try and convince it to rein in the President in order to get him to reverse his or her decision. This can be done through political mobilisation in the form of protest marches and other political campaigns.

Voters also have the option of changing their vote and voting for a different party, thus voting the governing party out of power. Thus the governing party and the President are ultimately accountable to voters. When voters continue to place their trust in the governing party, those voters endorse the actions of the President and the party he or she leads.

But because some South Africans are uncomfortable with the idea that the ultimate responsibility lies with them, or because they are too complacent or passive to embrace the power they have been granted by the Constitution as the ultimate arbiters of who governs South Africa and how South Africa is governed, they appeal to the judiciary to play the accountability role which they are ultimately entitled and obliged to play themselves.

It is for this reason that some South Africans are asking whether the firing of the Minister of Finance and his replacement with a little known MP can be challenged in court in terms of the principle of legality on the basis that the decision by the President was irrational.

It is true that in terms of the principle of legality the Constitution requires anyone who exercises public power to do so rationally. The President also has to act rationally when he or she appoints individuals, taking into account the purpose of the appointment. There must be a rational link between the purpose of the appointment and the actual appointment. It is for this reason that the Constitutional Court found that the appointment of Adv. Menzi Simelane as National Director of Public Prosecutions was irrational.

The rationality standard is linked to the purpose for which the power must be exercised. In the Simelane matter the National Prosecuting Authority Act states that the President was required to appoint a person that was a “fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned”. As evidence suggested that Adv. Simelane had lied under oath and was less than honest, the failure by the President adequately to consider this evidence of dishonesty rendered his appointment irrational.

But what is the purpose of appointing a cabinet minister? Cabinet appointments are avowedly political appointments. There is no constitutional or legal requirement to appoint somebody who, objectively speaking, is a person of integrity or is somebody with the appropriate credentials for the job. As long as an MP qualifies to serve in the National Assembly, he or she will be qualified.

Apart from being a member of the National Assembly, there are, ultimately, only three requirements for appointment as a cabinet minister. You have to enjoy the confidence of the President, you have to enjoy the active or tacit support of the majority party in the National Assembly, and the appointment must not be made in bad faith.

If an appointment is made to further an illegal purpose or to illegitimately further the financial interests of your friends or family, a court could invalidate the appointment. But courts do not and cannot make such decisions based on perceptions and conjecture. It would only be able to invalidate an avowedly political appointment of a cabinet minister if conclusive proof is provided that the appointment was made in bad faith.

Although there has been widespread speculation in the media that the appointment of Des Van Rooyen as Minister of Finance was made in bad faith, a court is not permitted to invalidate the appointment based on such guesswork and speculation in the media – no matter how credible this speculation seems to be.

It is for this reason that it is unthinkable that unelected judges will declare invalid the appointment of a cabinet minister by the President on the grounds that such an appointment is irrational.

In a constitutional democracy, the elected President and his or her party have the discretion to decide on the appointment of cabinet members. The President and his or her party are ultimately politically responsible for such appointments. In the absence of proven evidence of malfeasance, the President and his or her party are ultimately politically (and not legally) accountable for such appointments.

It is thus up to the voters to decide whether they wish to call the governing party and its President to account for the unpopular appointment of a cabinet minister. If the voters continue supporting the governing party and its President, the voters endorse the “unpopular” decision, and that is the end of the matter.

The question is whether a sizeable number of voters will indeed express their unhappiness with the appointment of the Minister of Finance through the exercise of their vote.

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