Beyond the law – Ethics matter

9 October 2018

President Cyril Ramaphosa has, to put it mildly, monumental tasks ahead of him. Not least, crafting a tangible and coherent message about economic recovery to assuage jittery investors and skeptical voters ahead of the 2019 national elections, but also appointing the best people for public office.

Among the revelations before the State Capture Commission of Inquiry is that current Minister of Finance, Nhlanhla Nene, met the Gupta family at their family residence on at least 11 occasions between 2009 and 2014, when he was Deputy Minister of Finance. This is a significant admission because the terms of reference of the Commission include probing “whether and to what extent and by whom attempts were made to influence executive office bearers, organs of state, and directors of State-Owned Entities”. The precise details of the meetings are as yet unknown. Also unknown at this stage is the causal link, if any, between the contents of the meetings and any subsequent policy decisions taken by Minister Nene. Media reports state that Minister Nene has, while not tendering a resignation, asked the President to relieve him of his duties.

According to the Constitution, the President appoints Members of Cabinet, assigns their powers and functions and may dismiss them. In turn, the Members of Cabinet are collectively and individually accountable to Parliament for the exercise of their powers and the performance of their functions. As such, there is arguably a low bar as to the qualities qualifying one to be a Cabinet Member. The appointment, as with the dismissal of Cabinet Members, is a political decision, with interference from the courts in such decision-making being permitted in certain narrowly-prescribed circumstances. On the whole, the President enjoys a wide discretion in making such appointments, although it is wise to assume that the President consults other members of the National Executive Council of the governing party. 

The Constitution itself provides no such legal obligation on the President.

Once in office, in terms of section 96 of the Constitution, Members of the Executive 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.” 

The Executive Members’ Ethics Act of 1998 further provides for an Ethics Code to regulate the conduct of Members of the Executive. The code extends the above-mentioned constitutional prescripts to provide that Members of the Executive may not:

(a) wilfully mislead the Legislature to which they are accountable;

(b) wilfully mislead the President or Premier, as the case may be;

(c) act in a way that is inconsistent with their position;

(d) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person;

(e) use information received in confidence in the course of their duties otherwise than in connection with the discharge of their duties;

(f) expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests;

(g) receive remuneration for any work or service other than for the performance of their functions as members of the Executive; or

(h) make improper use of any allowance or payment properly made to them or disregard the administrative rules which apply to such allowance or payments.

The Ethics Centre defines ethics as a “process of reflection in which people’s decisions are shaped by their values, principles and purpose rather than unthinking habits, social conventions or self-interest.” The Oxford English Dictionary on the other hand defines law as “a system of rules which a particular country or community recognises as regulating the actions of its members and which it may enforce by the imposition of penalties.”  As such, it is apparent that law on its own, has a narrower focus and a lower standard with which to abide. 

Given Minister Nene’s admission in the context of the above Ethics Code - the question which arises is how can Members of the Executive avoid real or apparent conflicts of interest? In answering this question, perhaps recourse should be had to not just the legal standard, but also to the ethical standards. In the South African context, there is no ambiguity as to what the law demands of Members of the Executive. The Ethics Code demands a higher standard of conduct than that set by the law.  Applying the given set of facts to this explanation - simply put - it means that while legally (at least for the time being) Minister Nene may not have transgressed any laws in the 11 odd meetings with the Gupta family, however, given what was already in the public domain about the Gupta family - it was unethical to meet the family. More so, it was unethical to then deny such meetings having taken place when initially asked. He further failed to raise the alarm after the then Deputy Minister of Finance, Mcebisi Jonas, alerted him of the purported R600 million bribe.

It is perhaps telling that in the apology which Minister Nene has since tendered to South Africans at large, he states that “I was wrong in meeting the Guptas at their residence and not in my office or at least a public place.” In apologising for the meeting venue (and failing to take the nation into his confidence about what was discussed at the meetings), rather than that the meetings took place at all, this reflects the gap between law and ethics.  He may have legally done the bare minimum to appear before the Commission, but more is required of him, ethically speaking. His conduct in this regard casts a shadow over his ability to act in the best interests of the public and his continued tenure arguably may lead to a loss of confidence in the vital Ministry.

At a time when the trust deficit between the democratic state and its citizens is at an all-time low, it is imperative that public officials conduct themselves scrupulously and are beyond reproach. It stands to reason therefore that there should be no question as to the fitness for office for Members of Cabinet such as Home Affairs Minister Gigaba, and Minister of Women in the Presidency Dlamini, where courts have made adverse legal findings against them. It is incumbent upon South Africans as a whole to develop, nurture and teach a culture of ethics, underpinned by a sense of morality. It is high time that the corrosive culture of personalised politics, characteristic of the previous regime, was rolled back, to allow for the restoration of institutional integrity.  In guiding the President’s decisions as to Cabinet appointments, a stricter standard - that of ethics - must be applied, in addition to the law.

By Phephelaphi Dube, Director, Centre for Constitutional Rights, 9 October 2018