Unpacking the Nene saga
What factors must be considered in decisions to appoint and dismiss cabinet ministers?
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