Is there a conflict between cabinet confidentiality and executive accountability?

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In a very important constitutional matter argued in the Constitutional Court on Thursday last week the apex Court in South Africa reserved judgement. The matter involves, inter alia, (a) separation of powers; (b) executive confidentiality in relation to decisions of the President in the appointment and dismissal of Cabinet Ministers; and (c) the constitutional accountability in relation to such action.

President Ramaphosa approached the Constitutional Court to appeal a very progressive and bold ruling by the North Gauteng High Court, delivered by Judge Basher Valley, which ordered the erstwhile President, Jacob Zuma, to release the record of an executive decision in terms of sections 91(2) and 93(1) (b) of the Constitution authorising him to appoint and dismiss Ministers of State and Deputy Ministers respectively. The facts involved related to the controversial sacking of the former Finance Minister, Mr Pravin Gordhan, and his then Deputy Minister, Mcebisi Jonas, in March 2017.

This judgement obviously intensely displeased Jacob Zuma, President at the time and was consequently taken on appeal to the Supreme Court of Appeals (SCA) in Bloemfontein, which dismissed the appeal against the said High Court decision on the grounds that it was moot or obsolete as Zuma was no longer President. However, Ramaphosa subsequently approached the Constitutional Court because he feared the High Court ruling created an unfortunate and erroneous precedent with problematic political consequences for government.

The Democratic Alliance (DA) initially made application to the North Gauteng High Court relating to Zuma’s contentious decision to remove both Gordhan and Mcebisi Jonas to be declared irrational and therefore set it aside as it appeared to be based on a contrived and feigned intelligence report. The DA also required access to the record of Zuma’s decision through rule 53 of the Uniform Rules of Court.

The legal and constitutional issues involved are complex as cogently argued by Advocate Ismael Semenja SC on behalf of the Presidency, explaining that in relation to the executive power, the President, was actually at present being challenged in the SCA, This is because there is a pending application addressing whether controversial Minister Bathabile Dlamini, notorious for the SASSA pensions debacle, should  have been re-appointed in the new Ramaphosa administration, and whether such a decision to retain her is indeed rational. 

Semenja conceded that his client, the presidency, accepted that although executive decisions had to be legal and rational, they were however exempt from the Rule 53, referred to  above, as this rule was designed for judicial, quasi-judicial and administrative decisions which required to be preceded by specific documentation and argument. All of this created manifest political and constitutional uncertainty at a time before and indeed in particular for after the May general election, when a new cabinet will have to be appointed.

Advocate Steven Budlender, arguing for the DA declared that the gravamen of the matter was to ensure that the exercise of public power was in accordance with the principle of legality and was not irrational. To establish the latter two requirements for the legitimate exercise of public power, the record using Rule 53, was indispensable. The Chief Justice, Mogoeng Mogoeng  pointed out during the hearing on Thursday that the issue was complicated by the fact that it involved not only legal and constitutional principles but politics. This compounded the complexity of reaching a decision, which would most certainly not be straightforward.

What is involved is the exact configuration of the doctrine of separation of powers according to our own Constitution. By this doctrine is meant separate institutions, the executive, legislature and judiciary sharing powers. This celebrated doctrine has undergone a metamorphosis in the 1996 Constitution. Under the pre-democratic dispensation, based on the Westminster model of government involving parliamentary sovereignty, decisions of the Cabinet were completely confidential. However, according to our extant supreme Constitution, provision is made executive accountability involving the courts in exercising judicial review in appropriate circumstances. This, it is submitted, must however be exercised with circumspection. 

The Constitutional Court in the celebrated and historic certification judgement held that the doctrine is not a fixed or rigid one and ‘ít is given expression in many different forms and made subject to checks and balances’. Much will depend on the circumstances of each case and it may be difficult to establish a general principle for all cases. It is submitted that both accountability and the public interest are seminal considerations that the Constitutional Court will have to take into account, but without exceeding its constitutional mandate resulting in judicial overreach. 

In general it is submitted that the deliberations of the Cabinet should be confidential. However it is further submitted that in the kind of democracy established by our Constitution does not give the President carte blanche to manifestly act irrationally, in a way contrary to the public interest. This however presents the Constitutional Court with an inordinate challenge in reaching a decision that most certainly will not please all concerned. In effect it is walking a tight rope. A cautious decision in favour of the Presidency will be criticized for its timidity in not upholding executive accountability and a bold one will be criticised for judicial overreach.

George Devenish is Emeritus Professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.