Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
3 June 2019

No, the reappointment of minister Pravin Gordhan is not unconstitutional

It is unclear why Julius Malema, the leader of the Economic Freedom Fighters (EFF), claimed last week that the reappointment of minister Pravin Gordhan was “unconstitutional” because President Ramaphosa “disobeyed” the office of the public protector as well as the Constitutional Court. There was no disobedience of either body as far as the reappointment of minister Gordhan is concerned as the public protector did not order (and did not have the power to order) Ramaphosa not to reappoint Gordhan. The argument that the appointment was “unconstitutional” also seems – at best – to be based on a radical misinterpretation of the law and the facts.

It is close to impossible to have a rational discussion about anything in any way related to minister Pravin Gordhan. Most of his opponents deploy a variety of clichéd insults and racial slurs (“Gordhan defence force”; “Indian cabal”; “Joshua Door” and the like) to try and prevent any rational discussion about minister Gordhan, while many Gordhan loyalists refuse to admit that he may have ever done anything wrong. (Gordhan’s recent statement that he was “part of drafting the Constitution”, so he can’t be a constitutional delinquent, is an example of yet another politician saying something truly silly.)

But rational discussion matters in a democracy, so despite the predictable (and disappointingly unoriginal and uninformed) outrage that will follow, let me explain why Mr Malema and his lawyers got it wrong on the reappointment of minister Gordhan.

Recall that the public protector recently found that Mr Gordhan had acted ultra vires and improperly and was guilty of maladministration. This was because he followed the legal advice of several people who told him it was legally permitted to approve the early retirement of SARS Deputy Commissioner Ivan Pillay with full benefits. In other words, instead of doing what was prudent, he did what he was advised was legally allowed.

As minister Gordhan has approached the court to have the public protector’s report and remedial action reviewed and set aside, the court will eventually rule on whether somebody exercising public power can ever be found guilty of maladministration when they act on what was probably sound legal advice (or at least reasonably believed to be sound legal advice). Suffice it to say, if this was so, over the past 25 years parliament and the President would have been guilty of maladministration every time they respectively passed and signed legislation which later turned out to be unconstitutional – even if they acted in good faith. This would be an odd interpretation of maladministration.

But even if the court ruled that the public protector’s findings were not irrational and were therefore lawful, and even if the court ruled that the President had a duty to implement the remedial action – even though the report and remedial action are being taken on review – this would still not render the reappointment unconstitutional and will not constitute disobedience of the remedial action.

The public protector ordered President Cyril Ramaphosa, among other things, “to take appropriate disciplinary action” against minister Gordhan. The public protector did not prescribe to President Ramaphosa (because she does not have the power to prescribe to him) what form the disciplinary action should take.

Thus, the public protector did not order the president to fire minister Gordhan. Nor did she order the president not to re-appoint him to the cabinet. It is a good thing she made no such order, because such an order would have violated the separation of powers doctrine and would have been unconstitutional.

This much was made clear by the High Court in its judgment in the case of South African Reserve Bank v Public Protector and Others. In that case the High Court declared invalid and set aside the instruction by the public protector to Parliament to amend the Constitution. The court held that the public protector’s order to Parliament trenched unconstitutionally and irrationally on Parliament’s exclusive authority to pass legislation.

The Public Protector does not have the power to prescribe to Parliament how to exercise its discretionary legislative powers… The remedial action therefore violates the doctrine of the separation of powers guaranteed by section 1(c) of the Constitution. The principle requires constitutionally established institutions to respect the confines of their own powers and not to intrude into the domain of others. An order directing Parliament to amend the Constitution and going so far as to prescribe the wording of that amendment offends the principle of the separation of powers mostly by seeking to fetter in advance the legislative discretion vested in Parliament. It removes from the members of Parliament their right and obligation to exercise an independent judgement when voting on proposed legislation.

Similarly, the public protector is not empowered to interfere with the appointment and dismissal of ministers. Section 91(2) of the Constitution states that: “The President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them.”

Just like the Constitution does not empower the public protector to instruct Parliament to amend the Constitution, it also does not empower the public protector to instruct the President not to reappoint a specific minister into the cabinet. This is why the public protector did not order the President to do so and why her instruction to discipline the minister cannot be read in this way.

Even if (and it’s a big if) the judicial review of the public protector’s report does not allow President Ramaphosa to ignore the public protector’s instruction to discipline Gordhan, this has little to do with the legality of Gordhan’s appointment because the public protector did not make any comment on minister Gordhan’s reappointment.

But what about the argument that all exercises of public power – including the appointment of ministers by the President – are subject to judicial review and can be declared unconstitutional and invalid if found to be irrational? Can the court not declare the reappointment of Gordhan irrational and unconstitutional because of the order by the public protector that disciplinary steps should be taken against Gordhan?

I assume those peddling this theory might rely on the 2012 Constitutional Court judgment in the case ofDemocratic Alliance v President of South Africa and Otherswhere the court declared invalid President Jacob Zuma’s appointment of Menzi Simelane as National Director of Public Prosecutions (NDPP). The court held in that case that both the process by which the decision is made and the decision itself must be rational.

Rationality review requires the court to identify the purpose for the exercise of public power. It must then ask whether both the process by which the decision was made and the decision itself were rational. Put differently: was there a rational link between the way the President made the decision and the actual decision, on the one hand, and the purpose of the decision, on the other.

The reason why the court ruled against President Zuma in the Simelane matter was because the National Prosecuting Authority Act made very clear what the purpose of the appointment of an NDPP was to appoint “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 anyone vaguely familiar with the quality of appointments to the cabinet must know, the Constitution does not require ministers to be fit and proper, to have experience, to be conscientious, to have integrity, or to have any other qualities – except to be (with two exceptions) members of the NA. This is the inevitable consequence of living in a democracy in which the President is given the power to appoint the cabinet of his or her choice, or at least of the choice of the leadership of the governing party.

As I explainedwhen pouring cold water on arguments that President Jacob Zuma’s firing of Pravin Gordhan was unconstitutional:

A decision to appoint or dismiss members of the cabinet is a political decision made by the President. As is the case in any democracy, many different political considerations would influence decisions about cabinet appointments. Some people will be appointed to the cabinet because of their abilities. Others will be appointed because of purely political considerations, regardless of ability.

As the purpose of appointing a cabinet is political, the Constitutional Court will normally not interfere in the appointments process. Unless the appointment to the cabinet was done for an ulterior purpose (for example, if done in return for a bribe) the court will not interfere as this will breach the separation of powers doctrine. If challenged, all President Ramaphosa would have to do is to tell the court that he appointed minister Gordhan because he made a decision that – politically – Gordhan was the best person for the job.

Of course, there is nothing wrong with the EFF objecting to the appointment of minister Gordhan and trying to gain a political advantage by arguing that minister Gordhan should not have been appointed because the public protector found that he wrongly followed legal advice. (A more subtle and convincing argument would be that minister Gordhan might have acted legally, but had failed to act prudently.)

But what is clear, is that a claim that the President acted “unconstitutionally” and had “disobeyed” either the public protector or the Constitutional Court by appointing minister Gordhan is a legal nonsense. To hold otherwise would be to bestow on both the public protector and the Constitutional Court political powers usually reserved for the democratically elected head of the executive.

PS: Correction – When I predicted that clichéd insults and racial slurs would follow this piece, I failed to mention the most obvious (but also the most vacuous) insult: “Stratcom”. My mistake.

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