The Nene Saga: The Dismissal of cabinet ministers

The recent tendering, by the former South African Finance Minister Nhlanhla Nene, of his resignation and its acceptance by President Cyril Ramaphosa is a manifest illustration of how our constitution, premised on the fundamental principle of executive accountability, should work in both theory and practice.

According to section 91(2) of South Africa’s constitution, the president appoints, inter alia, cabinet 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 parliamentary government, involving both ministerial and collective cabinet responsibility, which our constitution provides for and which has its origin in Westminster system.

According to Professor Albert Venter in his book The Birth of a Nation individual ministerial responsibility embodies, inter alia, an obligation to resign. This requires that a minister, if the situation is sufficiently serious, is obliged to resign. Venter explains further that a minister is required to resign from his office, inter alia, 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 above, depends on realpolitik both in South Africa and other parliamentary systems. So, for example, this was indeed the position in the United Kingdom 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 other, in the controversial Marconi Scandal in 1912. Sir Rufus did not resign, despite the clamour from the members of the political opposition for him to do so, 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 of Capture Commission of Inquiry that Nene, met the Gupta family at their family residence at least on 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. Nevertheless, as a result, a penitent, contrite and apologetic, Nene asked President Ramaphosa to relieve him of his duties.

Subsequently, the President, in the interest of good and ethical government, accepted his resignation. There can be no doubt what-so-ever that it was ethically and politically correct for Nene to offer his resignation and for the President to accept it. This is exactly how the constitution should work and it is indeed a singular and exemplary manifestation of political accountability at the highest level of executive government. Regrettably, far too frequently, as in the *SASSA debacle and the **Life Esidimeni tragedy, politicians and senior civil servant have shamefully denied their ethical and political accountability and stubbornly clung to office.

Although it is clear from this political saga, that Nene made serious errors of judgment of both a political and ethical nature, he did, at the end of this saga, do the honourable thing and resigned, for which he should be commended, and did not attempt to cling to political office as other cabinet ministers have done in the past. President Ramaphosa has also risen to the occasion and in accepting Nene’s resignation, acted in the best interest of South Africa.

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 Mokonjane, to be implicated in the Gupta debacle or some other dubious political or unethical conduct. Opposition parties, such as the DA and EFF are also cogently calling for such ministers to be dismissed (Daily News, 10 October 2018). 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 section 91 (2) of the Constitution? This would be a triumph for accountable and ethical governance. In this regard, however, it is submitted that the President, of necessity, is constrained by realpolitik, taking into account, his own problematic position in the ANC with its two opposing factions.

It is submitted that only after the 2019 election, should he obtain an unequivocal mandate from the electorate, which is not entirely certain, will he be more able to make a clean sweep, and not be inhibited by opposition from within the ANC itself.

A positive development that has flowed from the political demise of Nene is that the President has appointed the competent and respected Mr Tito Mboweni, former Governor of the Reserve Bank, as the new Minister of Finance. This has met with universal approval and augers well for the future.

*SASSA debacle

This relates to the ministerial mismanagement of tenders to distribute government welfare grants in South Africa .

**Life Esidimeni

The Life Healthcare Esidimeni scandal involved the deaths of 143 people at psychiatric facilities in the Gauteng province of South Africa from causes including starvation and neglect. It is named for Life Esidimeni, the private healthcare provider from which patients were removed by the state. Wikipedia

Read more of Professor Devenish's Letters here