The constitution requires in section 96 that members of the executive may not expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests.

Nor may they use their position to enrich themselves or improperly benefit any other person. An actual conflict need not arise — a risk is sufficient, according to the Constitutional Court’s ruling in the Nkandla case.

The new justice minister, Thembi Simelane (formerly Nkadimeng), is embroiled in a complex VBS Mutual Bank collapse-related situation in which it is alleged she is conflicted and has improperly benefited from loan transactions involving a corporately owned coffee shop in Sandton.

Simelane is doubly conflicted by her duties as the cabinet member responsible for the administration of justice because she must exercise final responsibility over the prosecuting authority, which must decide whether criminal consequences flow from the facts the Investigating Directorate Against Corruption may establish when it investigates the matter, as it should. In addition, she must concur in prosecution policy decisions that must be observed in the prosecution process against her, if any. These matters are set forth in section 179 of the constitution.

Should Simelane elect not to tender her resignation it is incumbent upon the president to decide whether a precautionary suspension or dismissal from his cabinet is indicated. The commitment of the government of national unity (GNU) to clean governance, upholding the rule of law and fealty to the constitution will all be tested by the revelations of the investigative journalists who seek to hold the minister to account for her actions, and for her response to the possibility of being charged criminally.

Her “final responsibility” does not include any participation in the decision-making required of the prosecuting authority in the circumstances they uncover as they exercise their functions without fear, favour or prejudice. The case illustrates why the Constitutional Court has ruled in favour of the independence of anticorruption efforts by the state. The National Prosecuting Authority is not independent of the minister on any reading of section 179.

When he called for the GNU, the president stressed that it would focus on “ending corruption”. That focus will be tested by the situation now unfolding regarding Simelane.

Paul Hoffman
Director, Accountability Now