24th January 2023by Sandra Laurence
Paul Hoffman, SC, a director of Accountability Now, reviews the opinions of various South African commentators on the danger Gwede Mantashe poses to constitutional democracy. On retired judge Dennis Davis’ Judge for Yourself television show, for instance, Mantashe confirmed accusing the outgoing Eskom CEO of treason; and admitted that no new capacity has been added to the grid on his watch. But Hoffman makes the point that collective cabinet responsibility has been developed over many centuries in parliamentary democracies to facilitate the smooth functioning of government. Collective ministerial responsibility is a constitutional convention requiring that members of the cabinet must publicly support all governmental decisions made in Cabinet, even if they do not privately agree. But tell that to Lindiwe Sisulu and Nkosazana Dlamini-Zuma. Read more below on Hoffman’s view as to why Mantashe is viewed as royal game by Ramaphosa. – Sandra Laurence
Is collective cabinet responsibility a dead letter in SA?
By Paul Hoffman
Writing in Politicsweb on 22 January 2023, William Saunderson-Meyer constructs an extended analogy, in which he likens events unfolding around the Eskom debacle to a hectic and deadly Shakespearean tragedy, before unleashing the following punchlines:
Following the resignation and alleged poisoning of Eskom CEO André de Ruyter, South Africans have watched slack-jawed the escalation of dire events over the past few weeks.
De Ruyter’s valiant but doomed efforts to rescue the power utility laid bare how criminality involving the ANC elite has hollowed out every state institution. The rot is so deep, the stakes so high for the criminals, we should accept that the best we can hope for in the immediate future is that we’ll eventually have more competent crooks leeching off our state-owned entities — parasites that don’t kill the host.
Cyril Ramaphosa’s willingness to abandon De Ruyter to the wolves was yet another reminder that the president puts party interests above national priorities, even during the greatest crisis of the democratic era. Despite his objectively much-strengthened position following the December leadership conference, there was no rebuke of Mineral Resources and Energy Minister Gwede Mantashe when he accused De Ruyter of “treason” for implementing load shedding. Instead, Ramaphosa has stated that following a conference resolution, Mantashe’s department will take charge of Eskom.
Ramaphosa’s diehard fans trust that this is a canny, not craven, manoeuvre. That in his imminent Cabinet reshuffle, the president will axe the useless and compromised Mantashe, to replace him with a competent and credible technocrat. Someone who can handle what is, for the moment, possibly the most important ministerial portfolio.
Peter Bruce’s column in the Sunday Times has the same tenor. It focuses on the danger Mantashe poses to constitutional democracy under the rule of law. The opening stanza sums it up as:
The energy minister is trying to shift the blame for load-shedding away from himself — and has now drawn the president into the circle of fire
City Press has a front page headline on 22 January 2023 which reads “Ramaphosa’s team guns for Gwede” with the sub-heading:
“President in a bind as close allies warn that giving Eskom to the powerful ANC chairperson would spell disaster for the country’s bid to arrest the energy crisis.”
Not to be outdone by mere journalists, retired judge Dennis Davis invited Mantashe onto his Judge for Yourself television show to give his side of the story. Mantashe confirms accusing the outgoing Eskom CEO of treason and, somewhat contradictorily, of behaving as a policeman. He denies responsibility for the fact that no new capacity has been added to the grid on his watch and passes the buck to his fellow cabinet members, Bheki Cele – to deal with crime and corruption at Eskom and Pravin Gordhan to take charge of Eskom as the shareholder representative in cabinet.
Factionalism has been a major weakness of the ANC since Jacob Zuma prevailed over Thabo Mbeki in 2007, if not before that. The intra-faction infighting that is evidenced in the coverage mentioned above is no more than a further manifestation of factionalism rearing its ugly head within the national cabinet.
President Ramaphosa tries to run his party and his cabinet along the lines of democratic centralism. He admitted this on oath when he gave evidence at the Zondo Commission. The term “democratic centralism” is not found in our supreme law, the Constitution. Instead, it admonishes us to regard the rule of law as supreme.
On the issue of collective cabinet responsibility, the Constitution is clear. This clarity appears from section 92 which reads:
Accountability and responsibilities
92. (1) The Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President.
(2) Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions
. (3) Members of the Cabinet must—
(a) act in accordance with the Constitution; and
(b) provide Parliament with full and regular reports concerning matters under their control
The notion of collective cabinet responsibility is one that has been developed over many centuries in parliamentary democracies with a view to facilitating the smooth functioning of government. Also known as collective ministerial responsibility, it is a constitutional convention in parliamentary systems that members of the cabinet must publicly support all governmental decisions made in Cabinet, even if they do not privately agree with them. This support includes voting for the government in the legislature. Some Communist political parties apply a similar convention of democratic centralism to their central committee. As is apparent from the text of Section 92, in SA we have elevated the convention of older democracies into a pillar of the Constitution itself.
Even if we are to assume that Ramaphosa has strayed from the way prescribed by the Constitution and into the thorny territory of democratic centralism, it is still the case that cabinet is meant to show a united face to the world. Cabinet collective responsibility entails cabinet solidarity: the members of the cabinet must publicly show a unified position, and must support the government even if they privately disagree with the decision that has been made.
Mantashe’s actions and utterances show him to be a constitutional delinquent.
Under the doctrine of democratic centralism, which might once have been more to his Leninist liking, Mantashe still finds himself in the political wilderness. He creates rather than avoids contradictions with other members of cabinet thereby undermining the coherence that cabinets in well-functioning democracies and even well-functioning communists states (if there are any) require if they are to govern effectively and efficiently. In the Eskom debacle, in which actual load-shedding commenced in 2007, effectiveness and efficiency are absent in spades.
Democratic centralism, Ramaphosa’s governance method of choice, is mainly associated with Leninism, in which the party’s political vanguard of professional revolutionaries practised democratic centralism to elect leaders and officers, determine policy through free discussion, and decisively realise it through united action. Lenin described democratic centralism as consisting of “freedom of discussion, unity of action”. There is manifestly no unity of action in the wake of the divisive statements of Mantashe as recorded in the media and summarised above.
Mantashe is not alone in cabinet in undermining the leadership of Ramaphosa. A year ago, Lindiwe Sisulu, minister of tourism, publicly turned her back on constitutionalism and the rule of law, dissing the Black members of the SA bench as “house niggers” when she did so. She accused Ramaphosa of lying about their subsequent discussion of the matter and denied being willing to retract and apologise. She still serves in cabinet, unrepentant and unpopular. She avoided voting on the Phala Phala section 89 matter by leaving the chamber. Her colleague, Nkosazana Dlamini-Zuma, went further by voting with the opposition. Like Sisulu, she still serves in cabinet. Inexplicably so.
If cabinet is to function in the manner prescribed in the Constitution then the errant ministers, the alleged crooks and the corrupt in its ranks must be weeded out swiftly. A system of governance that is open, accountable and responsive to the needs of ordinary people is impossible if the infighting in cabinet, the open rebellion, and its suspect members are allowed to continue in office.
Mantashe himself has been fingered in the evidence presented to the Zondo Commission. His position seems to be indistinguishable from that of Chief Magistrate Desmond Nair, who is on trial for corruptly accepting security upgrades from Bosasa in a manner substantially similar to the transaction with Bosasa that Mantashe has admitted. The National Prosecuting Authority remains supine. It is no doubt waiting for the outcome of a review that Mantashe threatens but does not mount, secure in the knowledge that he is royal game and immune from prosecution because of his long-standing relationship with the president going back to their days organising the National Union of Mineworkers. So much for equality before the law. Nair was suspended when he was accused of accepting a bribe, Mantashe sails on unperturbed, unsuspended and untouchable.
The need to fix Eskom is a pressing priority in SA. Oliver Tambo had a vision for the new SA which he expressed in the following words:
“The fight for freedom must go on until it is won; until our country is free and happy and peaceful as a part of the community of man, we cannot rest.”
Much later, on 19 January 2007, former president Kgalema Motlanthe noted that:
“This rot is across the board. It’s not confined to any level or any area of the country. Almost every project is conceived because it offers opportunities for certain people to make money. A great deal of the ANC’s problems are occasioned by this.”
Free, happy and peaceful won’t be attained in the dark; addressing the corruption problems of the ANC to which Motlanthe alluded must be as big a priority as getting Eskom to function optimally.
While the various civil litigants begin to swarm around Eskom with their seemingly unattainable demands, one faint silver lining to the dark clouds gathering over Megawatt Park, the Union Buildings and Luthuli House is visible. The Standing Committee on Public Accounts in the National Assembly intends grilling Eskom officials this week. The recent resignations of key personnel, the CEO, the head of risk and assurance and acting group executive for generation will be interrogated. All three are alleged, according to City Press, to have resigned, at least in part, because they feel staying would be detrimental to their future careers. Let’s hope someone asks why emergency diesel generators are standing idle during loadshedding for want of fuel that is readily available to anyone who pays for it. Parliamentary oversight and the monitoring of implementation of legislation has always been in place notionally; it is time to ask the practical questions about Eskom. “Who will pay for the diesel needed?” might be a good start.