Analysis: ConCourt faces difficult decision on disclosure of reasons behind Cabinet reshuffles
Can SA presidents be ordered to release the written record for the reasons behind Cabinet reshuffles if the decisions are legally challenged? This is the question the Constitutional Court is seized with this week, following a case brought by the DA against President Zuma in 2017. While Zuma’s example alone provides a strong argument for transparency, the legal issues are complex.
When erstwhile President Jacob Zuma axed then-Finance Minister Pravin Gordhan and his deputy Mcebisi Jonas in 2017, the DA went to court to try to overturn the decision. As part of the party’s application, however, the DA first needed to hear why Zuma had taken the decision. The DA thus asked the High Court to compel Zuma to disclose the documents recording his reasons for the shuffle. The High Court ruled in favour of the DA, and the Supreme Court of Appeal dismissed the subsequent appeal by the Presidency. Zuma is now a year out of office, but President Cyril Ramaphosa has chosen to take up the fight himself in the Constitutional Court. This is not an act of solidarity with his predecessor. Instead, Ramaphosa’s lawyers argue that the High Court decision has to be set aside because it has implications for all future decisions made by the South African executive – the president, his ministers and deputy ministers. If the High Court decision is allowed to stand, Ramaphosa’s legal team argues, it would mean that the executive could be compelled to file – and make public, if legally ordered to do so – a record of all decisions. This would amount to judicial overreach and a breach of the section of the Constitution dealing with executive powers, the lawyers contend. Lawyers for the DA disagree. They argue that the High Court decision does not amount to a “binding precedent” – but also that the High Court decision was correct. “It is now beyond question that the exercise of every public power is subject to the principle of legality and the principle of rationality which forms part thereof,” the DA’s heads of argument state. “This is so even when the public power being exercised involves an executive decision.” The DA lawyers contend that it is essential for the record of executive decisions to be provided when such decisions are challenged, because “it ensures that the applicant is not required to conduct the review application in the dark, without knowing what was before the decision-maker”. Without the record of how the decision was made, the lawyers argue, the court reviewing the decision cannot come to a conclusion about whether the decision was lawful and rational. In the court of public opinion, this issue might seem like a no-brainer – particularly given the disastrous consequences of the powers afforded to former president Zuma to make and revoke Cabinet appointments without having to publicly account for these decisions. Zuma shuffled his Cabinet 11 times between May 2009 and his departure in February 2018, with an average Cabinet lasting less than a year. As meticulously charted by Business Day in 2017, only 10 people other than Zuma kept the same Cabinet positions throughout his presidency. Being a Cabinet minister under Zuma was not a position with a high degree of job security. Thanks to the #GuptaLeaks, other journalistic investigations and the work of the Zondo Commission, we now have greater insight into the often self-serving (or Gupta-serving) motivations behind Zuma’s shuffles. During his presidency, however, Zuma’s refusal to provide any substantive reasons for his Cabinet rejigs was a point of high frustration for opposition parties and many members of the public. Adding to the sinister atmosphere around Zuma’s Cabinet reshuffles was the manner in which they were undertaken: often literally under cover of darkness, in the form of a surprise late-night media statement. It should be noted that Zuma didn’t always fail point-blank to provide reasons for his Cabinet appointments. But when he did, they were often vague, unsatisfactory – or false. The most egregious example of the latter category was Zuma’s December 2015 decision to axe then-Finance Minister Nhlanhla Nene and replace him with little-known ANC backbencher Des van Rooyen – a move which sent the rand into a tailspin and wiped an estimated R500-billion off the country’s economy. Such was the consternation on that occasion that Zuma took the unusual step of releasing a statement explaining that the “urgency” of the change was necessary because nominations needed to be made to head the African outpost of the newly-formed BRICS Bank. “Mr Nene is our candidate for this position,” Zuma stated. As was made clear shortly afterwards, and confirmed by Nene in his testimony to the Zondo Commission, no such post existed. On the occasion of Zuma’s 10th Cabinet reshuffle in March 2017 – the purge that saw Gordhan and Jonas axed and replaced with Malusi Gigaba and Sifiso Buthelezi – Zuma explained the moves at the time as motivated by a desire to “improve efficiency and effectiveness” and bring more youth and women into the Cabinet. This was a rationale which seemed to fail to match the actual appointments made. Answering questions in the National Council of Provinces in 2017, Zuma stated explicitly: “The question of the changing of ministers is a prerogative of the president. These are reasons that [are] not necessary to be known by people.” As frustrating – and often damaging – as the Zuma administration’s opaqueness was in this respect, however, it was far from unique. Veteran law professor George Devenish – one of the legal minds who helped to draft South Africa’s interim Constitution – pointed out in a July 2018 op-ed that the Presidency’s approach is modelled on that of the “Westminster model of the absolute confidentiality of Cabinet decisions and deliberations”, as practised in jurisdictions including the UK, Australia and Canada. But the difficulty, wrote Devenish, is that such secrecy is “no longer applicable because of the nature and content of our constitutional democracy with its Bill of Rights”. In this matter, the Constitutional Court will have to weigh the principles of openness, accountability and public interest against the justifiable need for confidentiality as regards certain political decisions, and against the dangers of judicial overreach. Judgment has been reserved by the Constitutional Court after Thursday’s arguments. Many legal scholars will be watching with interest to see what the bench returns with – which will, to quote Devenish, require “the Wisdom of Solomon”. DM