Pierre de Vos, Constitutionally Speaking – 8 June 2018
Last week the Supreme Court of Appeal (SCA) declined to consider a challenge to an order by the High Court that the record of former President Jacob Zuma’s decision to fire former finance minister Pravin Gordhan must be handed over to the DA. The DA has abandoned its challenge to Gordhan’s removal and is therefore no longer seeking the “fake intelligence report” with which Zuma reportedly justified that ill-fated decision. But is it wise for courts ever to get involved in matters such as the appointment and firing of Cabinet ministers?
Some decisions made by the President of the country (or by a premier or a mayor for that matter) are profoundly political in nature. While the Constitution imposes the formal requirement that the Deputy President and all but two of the cabinet ministers must be members of the National Assembly (NA), it does not explicitly require Cabinet ministers to have any other attributes or qualifications. Being useless or lacking honesty and integrity is not a bar to becoming a minister.
It would be nice (but rather naive) to think that when the President appoints his or her Cabinet, this is done purely based on the merits of those appointed. But a President will have to consider other factors, such as the need to satisfy various constituencies within the governing political party, the need to reward individuals for past (and hopefully continuing) political support, and the need to ward off future challenges to his or her power.
It is true that section 92(3) of the Constitution states that members of the Cabinet must act in accordance with the Constitution, and must provide Parliament with full and regular reports concerning matters under their control, but the Constitution does not state that a person is unqualified to be appointed or retained as Cabinet minister if he or she on occasion fails to comply with this obligation.
Section 96(1) imposes further obligations on Members of the Cabinet and Deputy Ministers, requiring them to act in accordance with a code of ethics prescribed by national legislation. Section 96(2) then states:
Members of the Cabinet and Deputy Ministers may not—
(a) undertake any other paid work
(b) act in any way that is inconsistent with their office, or expose themselveto any situation involving the risk of a conflict between their official responsibilities and private interests; or
(c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.
This section also applies to the President and the Deputy President as they are members of the Cabinet. The Constitution does not state that a person is disqualified from serving as a Cabinet minister if he or she acts in breach of section 96(2) of the Constitution.
While retaining such a minister may be politically damaging to the President and the party he or she leads, the President does not appear to be constitutionally required to fire a cabinet minister who is found to have acted in breach of section 96(2) of the Constitution.
But this is not the end of the matter.
When the President appoints his or her cabinet or reshuffles that cabinet he or she is exercising a public power in terms of section 91(2) of the Constitution. This section gives wide powers to the President to exercise this function, stating that: “The President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them.”.
South Africa’s Constitutional Court has consistently held that all exercises of public power are in principle subject to review by our courts. As far back as 1996 the Constitutional Court held in President of the Republic of South Africa v Hugo (which was still decided in terms of the interim Constitution) that the exercise by the President of his powers under the Constitution may be subject to review by courts of appropriate jurisdiction in the same way as the exercise by him of other constitutional powers would be subject to review.
This means the President may not act in breach of any provision of the Bill of Rights – although, as the court pointed out in Hugo, it is difficult to imagine a situation where the President will act in breach of the Bill of Rights when he or she makes decisions affecting one individual only. Because Cabinet ministers are appointed individually, it improbable that a court will ever invalidate the appointment of a Cabinet minister because the President appointed an all male or overwhelmingly white Cabinet.
But the fact that the exercise of public power by the President is subject to judicial review also means that the President is further bound by the principle of legality and must always act in a rational manner. This is the case even when the decision is not administrative in nature and not subject to the requirements of the Promotion of Administrative Justice Act (PAJA).
The now abandoned attempt by the DA to have the dismissal of Pravin Gordhan reviewed and set aside was based on an argument of rationality. Every exercise of public power must be exercised in good faith and, at the very least, must not be exercised for a corrupt purpose. So, if it could be shown for arguments sake, that the President received a bribe which persuaded him or her to dismiss a cabinet minister, this would be in breach of the legality requirement and a court would, in principle, be able to review and set aside that decision.
The exercise of the power must also be rationally related to the purpose sought to be achieved by the exercise of it. In Democratic Alliance v President of the Republic of South Africa – in which the Court invalidated the appointment of Menzi Simelane as National Director of Public Prosecutions (NDPP) – the Constitutional Court explained that:
rationality review is really concerned with the evaluation of a relationship between means and ends: the relationship, connection or link (as it is variously referred to) between the means employed to achieve a particular purpose on the one hand and the purpose or end itself. The aim of the evaluation of the relationship is not to determine whether some means will achieve the purpose better than others but only whether the means employed are rationally related to the purpose for which the power was conferred.
The court also held that both the process by which the decision was made and the decision itself had to be rational. The DA was hoping to show that the process followed by former President Zuma was irrational because he relied on a bogus intelligence report (without bothering to check its veracity) to justify the firing of Gordhan.
What makes the Simelane case different from the firing of Pravin Gordhan, is that in the former case the legislation set out objective requirements for the job of NDPP. The purpose for appointing a NDPP is therefore not political, but rather to appoint an independent person with integrity as NDPP. There is no requirement that a cabinet minister should have integrity (and the President can also fire a Cabinet minister for any reason).
It would therefore have been difficult for the DA to convince the court that the decision was irrational.
But if we assume that I am wrong, I still wonder whether it is ever a good idea to approach a court to deal with issues like this. As I explained, the appointment and firing of Cabinet ministers are profoundly political. Fighting about political disagreements in court usually just postpone the inevitable as the President will always be able to have a “do-over” to get his or her way.
Imagine Jacob Zuma was still President and the court had invalidated the firing of Pravin Gordhan because the President relied on a bogus intelligence report to justify the firing. The President would then have accepted Gordhan back in the Cabinet- for a day or two – before announcing that he had again fired him because he decided he does not want him as Finance Minister anymore. That will be the end of the matter. The court would not be able to do anything else.
It is for a similar reason that I find the attempt by Patricia de Lille to hang on to her mayoral position through a court process quite absurd. She has lost the political support of the party in whose name she serves as mayor and in such a case eventually she will have to go as it is politically untenable to remain mayor without support of her party. Why use the courts to postpone the inevitable?
Yes, all exercises of public power are in principle reviewable by the courts, but some decisions (especially appointments) are so profoundly political and the criteria for the decision so open-ended or vague, that courts would find it difficult to review and set aside such decisions. But even in the improbable case where there is a possible reason to invalidate the decision on grounds of rationality, courts should try and avoid doing so if they can.
To hold otherwise will mean that courts will get entangled in political questions and run the risk of making decisions without any long term effects, and this will damage the credibility of the courts.