Un­pack­ing the Nene saga

What fac­tors must be con­sid­ered in de­ci­sions to ap­point and dis­miss cabi­net min­is­ters?

Cape Argus - - OPINION - GEORGE DEVENISH

AC­CORD­ING TO Sec­tion 91(2) of the Con­sti­tu­tion, the pres­i­dent ap­points the deputy pres­i­dent and min­is­ters, as­signs their pow­ers and func­tions, and may dis­miss them.

Fur­ther­more, as set out in Sec­tion 92(2), mem­bers of the Cabi­net are ac­count­able col­lec­tively and in­di­vid­u­ally to Par­lia­ment for the ex­er­cise of their pow­ers and per­for­mance of their func­tions.

They are obliged to en­sure that their con­duct is com­pat­i­ble with the Con­sti­tu­tion, and must pro­vide Par­lia­ment with com­plete and reg­u­lar re­ports con­cern­ing all mat­ters un­der their con­trol, as elab­o­rated in Sec­tion 92(3).

This gives rise to a sys­tem of re­spon­si­ble gov­ern­ment, which is one of the de­fin­i­tive fea­tures of Par­lia­ment, in­volv­ing both min­is­te­rial and col­lec­tive Cabi­net re­spon­si­bil­ity, which our Con­sti­tu­tion pro­vides for and which has its ori­gin in the West­min­ster sys­tem of par­lia­men­tary gov­ern­ment, adopted by our Con­sti­tu­tion.

Ac­cord­ing to Pro­fes­sor Al­bert Ven­ter in his book, The Birth of a Na­tion, in­di­vid­ual min­is­te­rial re­spon­si­bil­ity em­bod­ies (a) an ex­plana­tory one; (b) an amenda­tory one; and (c) a re-sig­na­tory one.

These re­quire re­spec­tively that a min­is­ter is firstly duty-bound to ex­plain what oc­curs or has oc­curred in his depart­ment. Sec­ondly, he is obliged to cor­rect mis­takes and er­rors that have oc­curred; and thirdly, of great sig­nif­i­cance, if the sit­u­a­tion is suf­fi­ciently se­ri­ous, he is obliged to re­sign.

Ven­ter ex­plains fur­ther that a min­is­ter is re­quired to re­sign from his of­fice in three sets of cir­cum­stances:

(i) In cir­cum­stances of a po­lit­i­cal or ad­min­is­tra­tive na­ture in which the min­is­ter was di­rectly in­volved;

(ii) Where vi­car­i­ous re­spon­si­bil­ity for ac­tions of of­fi­cials in his depart­ment ex­ist; and

(iii) Where the min­is­ter has per­sonal moral re­spon­si­bil­ity for con­duct per­ceived to be un­ac­cept­able to the com­mu­nity.

Whether un­der the cir­cum­stances a min­is­ter does ac­tu­ally re­sign, as set out in (iii) above, de­pends on re­alpoli­tik, both in South Africa and other par­lia­men­tary sys­tems.

This was in­deed the po­si­tion in the UK in the case in­volv­ing, in­ter alia, a cabi­net min­is­ter, Sir Ru­fus Isaacs, the at­tor­ney-gen­eral in the Asquith gov­ern­ment, who used in­sider trad­ing knowl­edge to en­rich him­self, his fam­ily and oth­ers dur­ing the con­tro­ver­sial Mar­coni scan­dal in 1912.

Sir Ru­fus did not re­sign, de­spite the clam­our from the mem­bers of the po­lit­i­cal op­po­si­tion, be­cause in ef­fect his col­leagues in the cabi­net ral­lied around and sup­ported him.

We know that among the star­tling rev­e­la­tions made be­fore the (Zondo) State Cap­ture Com­mis­sion of In­quiry, the now erst­while min­is­ter of fi­nance Nh­lanhla Nene met the Gupta fam­ily at their fam­ily res­i­dence on at least 11 oc­ca­sions be­tween 2009 and 2014, when he was deputy min­is­ter of fi­nance.

The pre­cise na­ture and de­tails of the meet­ings are not at present known. Fur­ther­more what is also not clear at this mo­ment is the causal link, if any, that may ex­ist be­tween the con­tents of the meet­ings and any con­se­quent de­ci­sions taken by Nene as min­is­ter or deputy min­is­ter.

There can be no doubt what­so­ever that it was eth­i­cally and po­lit­i­cally cor­rect for Nene to of­fer his res­ig­na­tion, and for the pres­i­dent to ac­cept it.

This is in­deed a sin­gu­lar and ex­em­plary man­i­fes­ta­tion of po­lit­i­cal ac­count­abil­ity at the high­est level of ex­ec­u­tive gov­ern­ment.

It is sub­mit­ted that the Nene episode has es­tab­lished an im­por­tant prece­dent and, in­deed, metaphor­i­cally a line has been drawn in the sand.

It, how­ever, cre­ates a quandary for the coun­try and the pres­i­dent in re­la­tion to other min­is­ters who ap­pear in some way or other, like Home Af­fairs Min­is­ter Malusi Gi­gaba, Min­is­ter in the Pres­i­dency Batha­bile Dlamini and the Min­is­ter of Com­mu­ni­ca­tions, Nomvula Mokonyane, to be im­pli­cated

The Nene episode has es­tab­lished an im­por­tant prece­dent. Metaphor­i­cally, a line has been drawn in the sand…

in the Gupta de­ba­cle, or some other du­bi­ous po­lit­i­cal or un­eth­i­cal con­duct.

Should such per­sons be in­duced to re­sign, or should the pres­i­dent – in the in­ter­est of pro­mot­ing eth­i­cal and good gov­er­nance – re­quire them to re­sign or dis­miss them, as he has the power to do in terms of the Con­sti­tu­tion?

How­ever, it is sub­mit­ted that the pres­i­dent of ne­ces­sity would be con­strained to take re­alpoli­tik into ac­count, in­volv­ing his own prob­lem­atic po­si­tion in the ANC with its two fac­tions, one of which is still ap­par­ently un­favourably dis­posed to­ward him.

A pos­i­tive de­vel­op­ment that has flowed from the po­lit­i­cal demise of Nene is that the pres­i­dent has appointed a com­pe­tent and re­spected Tito Mboweni as the new fi­nance min­is­ter. This has met with uni­ver­sal ap­proval and au­gurs well for the fu­ture. George Devenish is Emer­i­tus Pro­fes­sor at UKZN and one of the schol­ars who as­sisted in draft­ing the In­terim Con­sti­tu­tion in 1993

| PHANDO JIKELO | African News Agency (ANA)

PRES­I­DENT Cyril Ramaphosa appointed Tito Mboweni as the new Fi­nance Min­is­ter ear­lier this week. This fol­lowed the res­ig­na­tion of Nh­lanhla Nene, fol­low­ing his ad­mis­sion at an in­quiry that he’d vis­ited the home of the con­tro­ver­sial Gupta fam­ily.

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