When he extended the invitation to form what is now known as the government of national unity (GNU), President Cyril Ramaphosa made it clear that this new structure would operate within the parameters of the rule of law and the constitution, correctly so.

It soon emerged that his choice of Thembi Simelane for justice minister was a bad one, not that she is the only unfit member of the cabinet. Now, in a late-night move the president sought to address his error by having her play musical chairs with the human settlements minister, who would like to see zama zamas “persecuted” (her own words). If Mmamoloko Kubayi intended to say “prosecuted” it shows how little she knows of the details of her new portfolio.

The president, in appointing or shuffling ministers, must regard the rule of law as supreme. Section 1 of the constitution admonishes him to do so. His decision-making must, under the rule of law, be rational, and he has to serve some legitimate purpose of government to pass the test of legality when exercising his choices. Any conduct inconsistent with the constitution is invalid. Section 2 of the constitution says so. The presidential powers to appoint cabinet members are constrained by the supremacy of the rule of law.

Retaining Simelane in the cabinet is irrational and does not serve any legitimate purpose of government. The shuffle of December 3 is vulnerable to legal challenge because it does not pass the basic test of rationality. If the shuffle is impugned in court, Simelane can expect to suffer the same fate as her namesake, Menzi Simelane, whose appointment as national director of public prosecutions by Jacob Zuma was struck down as invalid by the Constitutional Court.

It reasoned that it was irrational to do so given Menzi Simelane’s dubious track record. He was held not to be a fit and proper person for the job. Zuma was poorly advised to appoint Menzi Simelane, and Ramaphosa has also been given wrong advice to shuffle Thembi Simelane to the human settlements portfolio when he should have paid attention to the outcry against her and dismissed her.

The minister of justice is usually a lawyer, a salutary practice. Simelane’s replacement is not a lawyer. In any sound reshuffle Ramaphosa should dismiss Simelane and replace her with a lawyer or at least a person of impeccable integrity and unquestioned probity.

Paul Hoffman
Director, Accountability Now