President Ramaphosa’s refusal to dismiss scandal-plagued ministers like Sisisi Tolashe, Gwede Mantashe, and Gayton McKenzie – despite having unrestricted constitutional power to do so – reveals a pattern of weak leadership that prioritises party loyalty over accountability and makes a mockery of the ANC’s promised renewal, writes Pierre de Vos.
When the time comes to evaluate the presidency of Cyril Ramaphosa, the choices he made in appointing and dismissing members of his cabinet will surely be among the most significant black marks against his presidency – the bizarre Phala Phala scandal will, of course, be another.
The decision to appoint Sisisi Tolashe as Social Development Minister and the failure (so far) to dismiss the scandal-plagued minister from office are the most recent examples of Ramaphosa’s poor judgment.
It follows a well-established pattern of presenting pivotal political decisions on the dismissal of ANC Cabinet ministers as requiring quasi-legal processes subject to non-existent procedural rules of fairness, by suggesting that the president would (or could) only act in cases where wrongdoing on the part of a minister had been established.
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Minister Tolashe is not the only bad apple in the cabinet. While the list is long, at the very least, the retention of Gwede Mantashe and Gayton McKenzie in the Cabinet and David Mahlobo as deputy minister reflects poorly on the president, the party he leads, and on the coalition government more generally.
It makes a mockery of claims by the president and senior ANC leaders about the pressing need for the “renewal” of the ANC.
It is important to recall that the Zondo Commission concluded that Mantashe was not entirely honest with the commission and that “there is a reasonable suspicion that Mr Mantashe (as the then secretary-general of the ANC) received the free installations of security upgrades at three of his properties, knowing that the company sought to influence ANC office bearers to do its bidding.
Comfortable in cabinet
Mantashe’s attempts to have these findings and recommendations reviewed and set aside by the courts have come to nought, yet he remains in the Cabinet.
McKenzie, who spent eight years in prison for armed robbery, is a xenophobic trickster in the mould of Donald Trump. The South African Human Rights Commission (SAHRC) is currently investigating him for alleged xenophobic utterances, hate speech, and the resurfacing of old, racist social media posts (in which he used the k-word).
The Zondo Commission also identified Mahlobo as a key figure in the abuse of the State Security Agency (SSA) to protect former president Jacob Zuma and advance state capture. It concluded that the “impropriety of a minister doing this admitted no debate”.
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And then there is Tolashe, whose brief tenure as minister of Social Development has been a disaster.
She instituted disciplinary proceedings against the director-general of the Department of Social Development, and advertised for his replacement, which she was not lawfully permitted to do without explicit presidential approval. Instead of dismissing her for undermining his authority, Ramaphosa reportedly merely reprimanded her.
To make things worse, the Daily Maverick reported last week that the minister allegedly gave two luxury vehicles intended for the ANC Women’s League to her children instead. She is reportedly being hauled before the ANC’s toothless Integrity Committee to “account” for this. Instead of dismissing her forthwith – which the president is entitled to do – the president reportedly requested Tolashe “for a report”, to accord her “an opportunity to relate [her] side of the matter”.
Mchunu remains on special leave
A similar approach was followed after General Nhlanhla Mkhwanazi accused Police Minister Senzo Mchunu of improperly interfering with investigations and attempting to disband the Political Killings Task Team (PKTT). Defending his decision to place Mchunu on “special leave” rather than firing him, Ramaphosa said that he rejected calls to “take immediate punitive steps against the Minister on the basis of untested allegations,” claiming that this would be unfair and “create a dangerous precedent”.
This statement is, at best, wrongheaded. The president has wide powers to appoint and dismiss ministers and deputy ministers, and there is no legal or political obligation on him to follow a fair process or to honour a (non-existent) right of the minister to be presumed innocent by the president until he is proven guilty before the Commission or a court of law.
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I would contend that by not dismissing Mchunu (who has credibly been implicated in a serious abuse of power), the president has in fact followed his long-established pattern of not holding ANC members of his Cabinet accountable. After all, the minister had not been accused of a trivial transgression and the president took the accusations so seriously that he appointed a commission of inquiry to look into them.
Ministers do not enjoy the usual protections of our labour laws. They serve at the pleasure of the president and can be dismissed for political or other reasons. Dismissal is not dependent on wrongdoing and is therefore not necessarily a punishment for such wrongdoing.
In any event, the president can always re-appoint Mchunu, in what looks to me like the unlikely event that the Madlanga Commission exonerates him completely.
The president’s political discretion
It is important to understand that the Constitution places very few limits on the exercise of the powers by the president to appoint or dismiss ministers or deputy ministers. Apart from the fact that all but two of the ministers must be members of the National Assembly, and that the Constitution does not permit the appointment of acting ministers who are not already members of the cabinet, there are no other formal restrictions on the power of the president to appoint and dismiss members of his cabinet or deputy ministers.
In theory, the appointment and removal of ministers and deputy ministers can be reviewed by a court on the grounds of irrationality, but in practice, it is difficult to conceive of a case where such a review would be successful. Because the president exercises a purely political discretion when he appoints or dismisses cabinet members and deputy ministers, the president can exercise the power to appoint and dismiss to achieve any conceivable legitimate purpose.
The president may dismiss a Cabinet minister for the purely political purpose of being seen to act firmly against incompetence and corruption. He may also dismiss a minister in whom he has lost trust. Moreover, he may dismiss a minister to placate senior leaders of his own party who are unhappy with a minister (as Jacob Zuma did with the dismissal of Des van Rooyen as Finance Minister).
Confident in his ministers
When the president dismisses or fails to dismiss a minister, he is exercising a political discretion and should be prepared to face the political consequences of his decision. By not dismissing Mchunu and by failing to act decisively against Tolashe, the president is sending a clear signal to the public that he continues to have confidence in these ministers, and that he is not overly concerned about the political impact of these decisions on his own standing and the standing of the party he leads.
Of course, there are informal political constraints on the president when exercising his discretion to appoint or dismiss a minister or a cabinet minister.
The president is, firstly, constrained by agreements made with political parties that form part of the coalition government. These agreements allocated a certain number of Cabinet seats to coalition partners, who nominate candidates from their respective parties for appointment to these positions. The president can, of course, attempt to push back against such nominations, but if he depends on the support of a party to remain in power, such pushback is not likely to succeed.
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This is not the case as far as McKenzie is concerned, as the coalition government will easily survive without the support of the nine seats of the Patriotic Alliance, the party McKenzie leads. The decision to retain McKenzie as a minister can therefore not be explained away as a necessary evil to ensure the survival of the government. It is a political decision that reflects poorly on the president and his party, not least because it normalises xenophobia.
Secondly, as far as ANC ministers are concerned, the president is constrained by his own party and the political dynamics within his party.
Interests of party above country
The fact that all the ANC ministers I mentioned above remain in the Cabinet may thus also reflect a tendency within the ANC to place the interests of senior members of the party above the interests of the country.
It may also reflect an inexplicable tendency to place the interests of senior party leaders above those of the party as a whole, as some voters are likely to punish the president and the party for retaining Cabinet ministers implicated in corruption or embroiled in one or another scandal.
This is exactly why the president often justifies his failure to act against ministers who are incompetent or implicated in an abuse of power or corruption, as necessitated by non-existent requirements of fairness and due process.
Voters (and journalists) would be well-advised not to fall for this trick.
- Professor Pierre de Vos is with the faculty of law at UCT.
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