President Zuma's recent new cabinet were welcomed by some and criticised by others. Be that as it may, it is accepted that the appointment of persons to the Cabinet (and as Deputy Ministers) is, in principle, made on political considerations.
However, the importance of appointing individuals with experience, skill and integrity cannot be overemphasised. Whether or not the government succeeds in improving the quality of life of each person or acts in a responsive and transparent manner, is very much up to the Cabinet. It is thus important to appreciate the role and function of the Cabinet in context of the Constitution.
The executive authority of South Africa is vested in the President and he or she exercises this authority, together with the other members of the Cabinet. This includes:
- Implementation of national legislation (except where the Constitution or an Act of Parliament provides otherwise);
- Development and implementation of national policy (baring in mind the provision of section 195(1)(e) that the "people's needs must be responded to, and the public must be encouraged to participate in policy-making");
- Coordination of functions of state departments and administrations;
- Preparation and initiation of legislation; and
- Performing any other executive function provided for in the Constitution or in national legislation.
The Cabinet, in terms of section 91 of the Constitution comprises the President - elected by the National Assembly - as head of the Cabinet, a deputy President and Ministers as appointed by the President. In terms of the Constitution, the President, as Head of State and head of the national executive of South Africa, must appoint the Deputy President and may appoint any number of Ministers to his or her Cabinet.
The President also assigns their respective powers and functions. In addition, the President may appoint any number of Deputy Ministers to assist the members of Cabinet - although Deputy Ministers are not members of the Cabinet. Apart from a maximum of two Ministers and two Deputy Ministers, the Deputy President, Ministers and Deputy Ministers must be selected from among members of the National Assembly of which, unlike the President, they remain members.
Before the President, Deputy President, Ministers or any Deputy Ministers assume office and begin to perform their functions, they must swear or affirm faithfulness to South Africa and obedience to the Constitution in accordance with Schedule 2 of the Constitution. In addition, the President must, in terms of section 83 of the Constitution, "uphold, defend and respect the Constitution as the supreme law" of South Africa. He must also, according to section 83(c), promote the "unity of the nation and that which will advance" South Africa. Moreover, the conduct of the Cabinet - including the President - and Deputy Ministers is regulated by section 96 of the Constitution.
According to the latter section, they "must act in accordance with a code of ethics prescribed by national legislation" and may not:
"(a) undertake any other paid work; (b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or (c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person."
In terms of section 92 of the Constitution, members of the Cabinet, including the President, are accountable "collectively and individually to Parliament for the exercise of their powers and the performance of their functions". They must "act in accordance with the Constitution" and must "provide Parliament with full and regular reports concerning matters under their control".
In terms of section 55 of the Constitution, it remains, however, the National Assembly's duty and responsibility to provide for mechanisms to ensure that the Cabinet, all other public officials and all organs of state are accountable to Parliament for its decisions, actions and inactions. This includes the National Assembly's duty to scrutinise and oversee executive action by demanding full and regular reports from the President, Deputy President and all Ministers.
The President serves at the pleasure of the National Assembly. As head of the executive, he is responsible - together with the rest of his Cabinet - for the conduct of the government, its officials and its institutions. As the President appoints the Deputy President and Ministers, and assigns their powers and functions, he ought to dismiss them should they fail to perform or fail to act in accordance with the Constitution and the law.
When the President fails to act in this regard, or when the National Assembly has lost confidence in the Cabinet (excluding the President), they may, in terms of section 102(1), pass a motion of no confidence in the Cabinet (excluding the President) by a vote supported by a majority of its members, after which the President must reconstitute the Cabinet.
Moreover, when the National Assembly has lost confidence in the President - regardless of the reason or grounds - it may in terms of section 102(1) and by a vote supported by a majority of its members, pass a motion of no confidence in the President, after which the President and the other members of the Cabinet and any Deputy Ministers must resign. In the event of the President committing "a serious violation of the Constitution or the law" or "serious misconduct" (or if he or she is unable to perform the functions of office), the National Assembly, by a resolution adopted with a supporting vote of at least two-thirds of its members, may remove the President from office in terms of section 89.
The exercise of executive power in our constitutional democracy is clearly not limitless. It is constrained by the Constitution and the rule of law. Considering a number of well-reported events, one may be excused for thinking that either the previous Cabinet or National Assembly (or both) may not always have familiarised themselves entirely with the notion of "limited power" and "accountability". These include the Waterkloof Airforce Base "Guptagate", the Marikana-incident, the ongoing Nkandla-saga and instances of abuse of public funds, but also the Auditor-General's most recent report reflecting unauthorised, irregular and fruitless or wasteful expenditure amounting to astounding total of R33.16 billion in 2012.
The new Cabinet and Deputy Ministers are equally required to exercise the executive authority vested in them by the Constitution with due regard for the Constitution and everyone in South Africa. In turn, the National Assembly must be a reliable guarantor ensuring absolute accountability on the side of the Cabinet.
Accordingly, the electorate can only hope that the new Cabinet and Deputy Ministers will fully embrace the constitutional values of accountable, responsive and open government as required by the Constitution. But if they do not, the National Assembly must act decisively in terms of the Constitution and in the best interest of those who they represent - the people of South Africa.
Adv Johan Kruger