Dear Editor,

The appointment of Dinah Pule as minister of social development by president Ramaphosa is vulnerable to judicial review because it lacks rationality.

Only the Constitutional Court is empowered by the constitution to review the decision as it involves a failure by the president to fulfil his constitutional obligation to appoint ministers to his cabinet in a way that passes the test of rationality.

Jacob Zuma’s appointment of Menzi Simelane as NDPP was successfully reviewed in the past. The court noted that while Simelane had no criminal record, his probity and credibility had been the object of adverse findings in the report of the Ginwala commission of inquiry into the fitness for office of Vusi Pikoli, dismissed predecessor to Simelane. This is how the Constitutional Court viewed the situation:

“The minister and Mr Simelane accept that the ‘executive’ is ‘constrained by the principle that [it] may exercise no power and perform no function beyond that conferred … by law’ and that the power must not be misconstrued. It is also accepted that the decision must be rationally related to the purpose for which the power was conferred.”

With reference to what emerged in the Ginwala commission, the court observed:

“The contradictions [in his evidence] reflect on Mr Simelane’s credibility, integrity, and conscientiousness. They were and remain material. Any decision by any person aware of this evidence to ignore it in the decision-making process involving Mr Simelane’s credibility would have been, on the face of it and in the absence of any explanation from that person, not rationally related to the purpose for which the power was conferred… The records of the Ginwala commission were, and remain, highly relevant to Mr Simelane’s credibility, honesty, integrity and conscientiousness. The minister’s advice to the president to ignore these matters and to appoint Mr Simelane without more was unfortunate. The material was relevant. The president’s decision to ignore it was of a kind that coloured the rationality of the entire process and thus rendered the ultimate decision irrational.”

Ms Pule, she of the red soled designer shoes, has an adverse report of the Public Protector and the opprobrium of the parliamentary ethics committee, which excoriated her malfeasance, to contend with should she be so ill-advised as to argue that the president acted rationally in appointing her.

Yours in accountability

Paul Hoffman SC