Laying the groundwork – CR17 and the challenge to the Executive Ethics Code
21 October 2021
1.
INTRODUCTION
In September 2021, amaBhungane returned to the Pretoria High Court for it to hear whether the Executive Ethics Code (the Code)[i] is unconstitutional if it does not require members of the Executive to disclose donations made to their campaigns for positions within political parties. To situate this challenge, this brief sets out the legal framework of ethical conduct for members of the Executive, and the circumstances which led to amaBhungane’s case – the failure of President Cyril Ramaphosa to disclose to the National Assembly (NA) a donation received in his 2017 campaign for the leadership of the African National Congress (ANC) (the CR17 campaign), the report by the Public Protector (PP), and the resulting court action. The next brief will explain why amaBhungane’s case is an important one by displaying the problems that arose from the President’s apparent ignorance of donations to the CR17 campaign.
BRIEF EXPLANATION OF THE ETHICS ACT AND THE CODE
“Ethical politicians” need not be an oxymoronic phenomenon. In fact, the Constitution demands that it is not, since section 96 states that members of the Cabinet must act in accordance with a code of ethics set out by national legislation. In line with this constitutional obligation, the Executive Members’ Ethics Act[ii] (the Act) was passed and the President promulgated the Code as demanded by the Act.[iii]
The Act and the Code set out provisions dealing with the general standards in terms of which members of the Executive must execute their duties, the disclosure of financial interests, prohibited conduct, the prevention and declaration of conflicts of interest, and the acceptance of gifts. The Act provides that the PP is responsible, upon the receipt of a complaint from certain parties[iv] that an alleged breach of the Code has occurred, for investigating such breach and submitting a report on the breach within 30 days of receipt of the complaint. Though the provisions of the Act and the Code are sensible, amaBhungane’s challenge suggests a major flaw in the disclosure obligations of the Code, which could allow potentially corrupt behaviour to prosper.
THE CHRONOLOGY
To situate amaBhungane’s challenge, it is necessary to provide a condensed explanation of the sequence of events leading up to the challenge. On 06 November 2018, during a question session in Parliament, President Ramaphosa was asked about a R500 000 payment allegedly made to his son from the Chief Executive Officer of Bosasa (now Africa Global Operations (AGO)), a firm that had scored lucrative government contracts. The President replied that the money was received by his son in return for financial consultancy services provided to AGO.
On 16 November 2018, the President wrote a letter to the Speaker of the NA, saying that he had inadvertently provided incorrect information, and that while his son's company did have a contract with AGO for the provision of consultancy services, he was subsequently informed that the payment in question did not relate to that contract. Instead, it was a donation to a campaign established to support his candidature for the Presidency of the ANC in 2017, and that he was not aware of the existence of the donation at the time that he answered the question in the NA.
Upon the reception of complaints about this about-turn, the PP investigated the matter, and in July 2019, she published a Report[v] which found that the President had violated the Code by misleading the NA about the donation, by exposing himself to a situation involving the risk of a conflict between his official responsibilities and his private interests, and by failing to disclose the R500 000 as a financial interest. She found that campaign pledges to the CR17 campaign were a form of sponsorship which benefitted the President in his personal capacity, and donations to the campaign should therefore have been disclosed as per the Code. The PP thus recommended that the Speaker of the NA refer the President to the Joint Committee on Ethics and Members’ Interests for consideration and demand publication of all donations received by the President. The President responded by seeking judicial review of the PP’s report.
COURT ACTION
On 10 March 2020, the High Court handed down its judgement setting aside, for various reasons, the decision by the PP to investigate and report on the CR17 campaign, the report’s findings and the remedial orders.[vi]
Pertinent to this brief is the reasoning pertaining to whether donations to the CR17 campaign should have been disclosed by Ramaphosa in line with the disclosure obligations in the Code. The PP’s report had answered this in the affirmative, finding that the donations constituted a “direct financial sponsorship... from a source other than the member's party which benefits the member in his or her personal and private capacity”, which had to be disclosed under paragraph 6 of the Code.
The Court found that this was not so because no donation had benefitted the President in his personal capacity – neither he nor his family had received any funds from the campaign. The court went further and analysed whether there was any other basis upon which the President could have been expected to make disclosure of the donations. The Code contains a widely-phrased paragraph which requires disclosure of “any other benefit of a material nature”. The court held that the Code requires only a disclosure of a financial interest, and the nature of the benefit received by the President from the CR17 campaign was not a financial benefit but a political benefit– a position in a political party. The court stated that neither the Act nor the Code contemplated the disclosure of intangible benefits gained through internal political party donations.
This decision was appealed by the PP to the Constitutional Court (CC), and on 1 July 2021, the CC upheld the order by the High Court.[vii] The majority of the court stated that upon the facts, the President did not personally benefit from the donations made to the CR17 campaign– he himself received no donations, he had no claim to money donated to the campaign, and that the campaign existed separately from him. The duty to disclose was therefore not triggered.
The court then considered that the contention that there was a personal benefit derived from donations made to the CR17 campaign because it promoted Ramaphosa becoming President of the ANC, which was a step towards becoming President of the country, was attractive, but that it could not withstand scrutiny. This, the court stated, was because the Code only deals with state affairs, and being President of a political party is not a guarantee to being President of the country, since the President of the country is elected by the NA.
Extrapolating from the court’s logic, donations to any politician’s political campaign will never be disclosable under the Executive Ethics Code, or the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members (Parliamentary Code of Conduct),[viii] because the donation may aid the politician in achieving a position in a political party, but not necessarily in the Executive or Parliament. Enter amaBhungane.
AMABHUNGANE’S INVOLVEMENT
AmaBhungane, an independent, non-profit organisation, entered the fray as a respondent in the High Court. AmaBhungane argued that if the court found that the Code does not require disclosure of funding for internal party-political campaigns, then the Court should declare that the Code is unconstitutional.
AmaBhungane reasoned that in order to properly exercise the right to vote, voters need information. So far as the Code does not allow voters to know about donations to politicians’ political campaigns which may “reveal ulterior motives or hidden political agendas” of politicians,[ix] the Code violates the right to vote and right to access to information under sections 19 and 32 of the Constitution.
Next, amaBhungane argued that secrecy in donations to political campaigns may enable corruption by creating an atmosphere in which politicians may favour private donors once they are elected into public office. This would result in a breach of the constitutional obligation for members of the Executive not to expose themselves to any situation involving the risk of a conflict of interest; and not to use their position to enrich themselves any other person.[x] AmaBhungane argued that in line with the state’s duty to combat corruption,[xi] the Code should shield against these potentially corrupt acts by requiring disclosure of donations.
The High Court dismissed the challenge, finding that the arguments made were compelling, but had to fail because amaBhungane had not considered whether the Promotion of Access to Information Act 2 of 2000 could be used to obtain the information, and that a constitutional challenge should have been made either to that Act, or the Ethics Act.[xii]
In July 2021, the CC found that the High Court had erred in concluding that amaBhungane’s challenge was not properly before it, and that the court should have considered the merits of that claim. It therefore found it appropriate to remit the matter to the High Court for adjudication. On 7 September 2021, the matter was heard once again in the Pretoria High Court.
CONCLUSION
This brief lays out the content of the code of conduct that governs the Executive, and explains the relationship between the CR17 campaign and the Code. This brief has not engaged with the various flaws in the PP report but merely deals with it to the extent that it finds that donations to presidential campaigns must be disclosed under the Code. This finding by the PP was made ultra vires and was rightly rejected by the courts, but it raises an issue that is massively important for transparency and accountability. For this reason, amaBhungane must be lauded for following through on the need for disclosure of donations to internal party campaigns. The next brief considers the limits of amaBhungane’s case, and explains why disclosure of politicians’ donors is important.
[i]Government Gazette No 21399 of 28 July 2000, available here.
[ii]Act 82 of 1998.
[iii] Section 2 of the Act states that the President must consult with Parliament and, by proclamation in the Gazette, publish a code of ethics.
[iv]Section 4 of the Act states that the PP must investigate any complaint by the President, a member of the National Assembly or a permanent delegate to the National Council of Provinces, if the complaint is against a Cabinet member or Deputy Minister: or the Premier or a member of the provincial legislature of a province, if the complaint is against an MEC of the province.
[v]Report No. 37 of 2019/2020 on an investigation into allegations of a violation of the Executive Ethics Code through an improper relationship between the President and African Global Operations formerly known as BOSASA, available here.
[vi]President of the Republic of South Africa v The Public Protector (Case no: 55578/2019) 10 March 2020 (GNP), available here.
[vii]Public Protector v President of the Republic of South Africa 2021 (9) BCLR 929 (CC)
[ix] Note vi, para 191.3.
[x]Section 96 of the Constitution.
[xi]See Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC) para 84 where the CC held that there is a constitutional duty for the state to take effective measures to combat corruption.
[xii]Note vi paras 194.4 and 194.6.
2
What CR17 teaches us—The need to know who donates to politicians’ internal party campaigns
The previous brief set out amaBhungane’s challenge to the constitutionality of the Executive Ethics Code (the Code)[i] on the basis that it does not require members of the Executive to disclose donations made to their campaigns for positions within political parties. This brief seeks to show that amaBhungane’s case is an important one, but that more work needs to be done in order to achieve transparency from all politicians. This brief also shows, with reference to the donations made to President Ramaphosa’s campaign for his candidacy for the Presidency of the ANC (the CR17 campaign), why it is crucial that disclosure of campaign donations be made, rather than remaining ignorant of donor identities.
THE WISDOM AND LIMITS OF AMABHUNGANE’S CHALLENGE
Three years ago, in June 2018, the Constitutional Court (CC) in My Vote Counts NPC v Minister of Justice and Correctional Services[ii] ruled that the Promotion of Access to Information Act[iii] was inconsistent with the Constitution because it did not allow for the “recordal, preservation and reasonable disclosure of information on the private funding of political parties and independent candidates”.[iv]Though the CC was dealing with parties and independent candidates, its statement that “[s]ecrecy enables corruption and conduces more to a disposition by politicians that is favourable towards those who funded them privately once elected into public office”[v] is equally applicable to amaBhungane’s case.
The argument could be made that funding for an internal party campaign only enhances the politician’s standing within the party and will not necessarily result in an election to public office. This was indeed the CC’s reasoning for why the CR17 donations did not need to be disclosed.[vi]
It must be admitted, though, that greater standing within a party will affect a politician’s prospects of attaining public office. And once in public office, it is very possible that the donor who aided the politician’s rise to success will come knocking. Further, as amaBhungane points out, “win or lose, the candidate may feel beholden to the benefactor of his or her campaign”.[vii]To prevent this, donations to internal party campaigns must be disclosed.
However, a major limitation is that amaBhungane’s challenge relates only to the Executive Ethics Code, and members of Parliament will be under no obligation to disclose who aided their eventual seat in government. The need for consistency was raised by President Ramaphosa in a question session in Parliament when he said “all candidates [should be] held to the same requirements of disclosure and transparency” and that the disclosure of internal party funding is also not required by the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members (Parliamentary Code).[viii]Despite this, amaBhungane’s case is an important first step in demanding more transparency from government.
IMPORTANCE OF AMABHUNGANE’S CHALLENGE CONTEXTUALISED
It is important to note that amaBhungane does not seek to force President Ramaphosa to disclose the donations made to the CR17 campaign. Rather, amaBhungane’s challenge to the Code is a prospective one, aiming to curb potential corruption in the form of kickbacks being granted to private donors who had funded politicians’ political campaigns.
It may be argued that corruption may also be combatted by politicians being kept ignorant of who their donors are, to eliminate the risk of conflicts of interest arising. This was the route that President Ramaphosa said he had opted for in the CR17 campaign. In his submissions to the Public Protector (PP), the President stated that donations had been made to the CR17 campaign on a confidential basis and that he had agreed with the CR17 campaign managers that they would not tell him of donations received from anybody.[ix]
However, politicians claiming they are being kept at an arm’s length from donors does not necessarily protect against corruption. Most obviously, there is a risk that the ignorance of donor identities is imperfect. In the CR17 campaign, for example, emails relied on by the PP seem to show that the President had been actively involved in the fundraising,[x] and that he had been consulted by his campaign managers regarding plans to approach various donors.[xi] Once this knowledge is acquired by a politician, any benefit accrued by a campaign donor becomes suspicious. For example, there have been reports that CR17 donors (whose identities had been leaked) had “been elevated to board memberships in various state-owned entities”.[xii] These appointments may have been completely legitimate, but the fact that their donation to the campaign was kept secret casts a cloud of scandal over it. Had their identities been public knowledge, no such aspersions would have been cast either on the donors or on the President. The disclosure of the identity of donors is thus arguably in the interest of both the politician and the donor.
The second risk with opting for ignorance is that donations may be made by conflicted parties, or be the proceeds of illegal behaviour. For example, a donation of R500 000 had been made to the CR17 campaign by the Chief Executive Officer of Bosasa (now AGO), a firm which had had a contract with the Department of Correctional Services at the time donations were made,[xiii] and which has since been implicated in state capture.[xiv] Accepting a donation from an individual doing business with the state, or one implicated corruption, does not look good for an office-holder. It is no doubt for this reason that the President instructed the CR17 campaign managers to return the R500 000 donation to the CEO of AGO.[xv]
AGO is not the only campaign donor alleged to have been doing business with the state. The PP’s report stated that there was evidence that other donors ‘could have been doing business with the state’ and ‘stood to benefit substantial financial returns from such big government contracts’.[xvi] It is perhaps these allegations that led to Rampahosa ordering a review of all donations made to the CR17 campaign.[xvii] If the identity of private donors was an open process from the beginning, those in charge of managing politicians’ campaigns would be more circumspect about accepting donations from contentious donors, thus avoiding the necessity of repaying donors or ordering ex post facto reviews.
The call for a review seems to suggest an acknowledgement that donors must be identified, vetted, and disclosed. This, coupled with comments made by the President that Parliament should decide whether it is “necessary and desirable for funding of internal party contests to be disclosed and regulated”,[xviii] might have given one the expectation that the President would support amaBhungane’s challenge. It is unfortunate and puzzling, then, that the President is opposing amaBhungane’s case, especially given the fact that the case is NOT targeted at the revelation of CR17 donors.
In any event, the President’s lawyers have made a valid argument that, at best, what amaBhungane could establish is that there is a duty on Parliament to pass legislation regulating funding for internal political party campaigns, but that the Code is not necessarily the piece of legislation that must require such disclosure. As stated above, amaBhungane’s case fails to demand disclosure of the identities of persons who had donated to the political campaigns of members of Parliament. There is thus wisdom in the averment that the Code is the inappropriate instrument for requiring disclosure of funding to internal party campaigns.
The President’s lawyers also contend that the approach of the campaign was constitutionally compliant since it had taken steps to distance Ramaphosa from “direct benefit and control of campaign funds”.[xix] As explained above, deliberate unawareness of donors and a lack of involvement in a political campaign does not adequately safeguard against corruption. Instead, it is amaBhungane’s alternative– the candid disclosure by politicians of donations to their internal party campaigns – that properly combats corruption.
CONCLUSION
AmaBhungane has argued that the Code is unconstitutional because it does not require politicians to disclose donations they received in their internal party campaigns. The President’s professed ignorance of donor identities during his CR17 campaign led to the reception of donations from controversial persons and caused aspersions to be cast on the integrity of the President and the donors. For these reasons and, more importantly, to ensure that corruption does not occur, disclosure is essential. It is arguable, however, that attacking the Code is the wrong way of achieving this noble goal. In the next brief, I consider more appropriate bases upon which the Code, and the Executive Members’ Ethics Act, can and should be challenged.
[i]Government Gazette No 21399 of 28 July 2000, available here.
[ii]2018 (5) SA 380 (CC).
[iii]Act 2 of 2000.
[iv]See note ii.
[v] Ibid para 45.
[vi]Public Protector v President of the Republic of South Africa 2021 (9) BCLR 929 (CC)
[vii]Cherese Thakur “AmaB Advocacy: Internal political party campaign financing — all eyes on the high court” (9 September 2021), available here.
[viii] Daniel Friedman “If I must disclose my funding, everyone else must too, Ramaphosa tells Malema” (The Citizen, 22 August 2019), available here.
[ix]Report No. 37 of 2019/2020 on an investigation into allegations of a violation of the Executive Ethics Code through an improper relationship between the President and African Global Operations formerly known as BOSASA, available here. See pages 56 and 95.
[x]Note vi above, para 78.
[xi]Kyle Cowan and Lizeka Tandwa “Exclusive: Leaked emails reveal who Ramaphosa's CR17 campaign asked for money” (News 24, 3 August 2019), available here.
[xii] Bongani Hans “CR17 donor scores R1.5bn Eskom contract” (IOL, 14 September 2020), available here.
[xiii] Note ix above, page 62-63
[xiv] Qaanitah Hunter “Cyril Ramaphosa 'gives back' Gavin Watson's R500,000” (Times Live, 3 February 2019), available here.
[xv] Note ix above, page 44.
[xvi]Ibid page 97.
[xvii] SABC “‘Ramaphosa’s decision to pay back donation raises more suspicions’” (SABC news, 17 November 2018), available here.
[xviii] SABC News “MPs challenged on disclosure, regulation of internal party political funding”
(22 August 2019), available here.
[xix] Note vii above.
3.
Beyond CR17—Problems with the executive members’ ethics act and the Executive Ethics Code
INTRODUCTION
For years, various Public Protector (PP) reports have highlighted that the pieces of legislation which seek to guide the behaviour of members of the Executive– the Executive Members’ Ethics Act[i] (the Act) and the Executive Ethics Code[ii] (the Code)– have serious flaws. This brief considers the biggest problem is that the lacunae in the Act and the Code allow violations to be committed with insufficient, or absent, sanctions, and that there seems to be little political will to bring about crucial amendments.
ISSUE 1: THE PRESIDENT GETS TO JUDGE HIS OWN ETHICS
Section 96 of the Constitution demands that members of the Cabinet must act in accordance with a code of ethics set out by national legislation. As the President is the head of the Cabinet,[iii] he must be bound by the Act and the Code. The Act provides that the PP should report to the President if the complaint is against a Cabinet member, and the President must thereafter submit a report to the National Assembly (NA) on any action to be taken against the Cabinet member.[iv] Therefore, in terms of the Act, the President receives a report on his own potential ethical breach, and is then expected to recommend the appropriate action to be taken against himself.
The Constitutional Court recently highlighted this anomalous situation in Public Protector v President of the Republic of South Africa[v] where it stated that ‘the ...Act does not cater for action to be taken against the President where he or she is responsible for violating the Code’.[vi] The Court opined that breaches by the President should be referred to the NA, since the Constitution already empowers the NA to take action against the President in certain circumstances.[vii] This is logical advice, but without any legislative amendment, the President may violate the Act and Code with impunity.
One might assume that the Act’s failure to provide for proper remedial action against the President is a mere legislative blunder that had not been detected until now, but pleas of ignorance must be dismissed since this issue was highlighted by PP Thuli Madonsela in Report 1 of 2010/2011.[viii] This report, which examined whether then-President Zuma failed to disclose his financial interests in terms of the Code, created the unusual situation where both the Complainant and the Presidency were in agreement – at least over the fact that the Code was unclear about what should occur if the President breached it. As will be discussed below, the PP recommended that this oversight be addressed, but over a decade later, it has still not been rectified.
ISSUE 2: ABSENT SANCTIONS
In the report mentioned above, the PP also noted that the Act and the Code made no provision for the consequences of violating the Code, and recommended that Parliament and provincial legislatures should consider the application, with effect from June 2010, of the same sanctions applicable against members of Parliament found guilty of violating the Parliamentary Code of Conduct.[ix]
In response, on 27 July 2010, Cabinet adopted interim sanctions applicable to members of Cabinet who are found guilty of violating the Code.[x] These sanctions include a fine not exceeding the value of 30 days’ salary, or a reduction of salary or allowances for a period not exceeding 15 days.
A statement by Cabinet provided that the interim sanctions would be applicable only until the Minister of Justice completed a review of the Code, and that a report would be provided to Cabinet by November 2010 addressing all the issues identified by the PP.[xi] At present, the “interim” sanctions are still being applied since no amendment to the Code was ever made.
This is alarming since Cabinet had approved the interim sanctions for a limited period only– until a review of the Code was done. It is unclear when, or if, this review was completed. The sanctions have since been treated as though they are a permanent feature of the Code, which is problematic since the Act provides that it is the President who is responsible for publishing a Code, and proclaiming this in the Government Gazette.[xii] It would seem, then, that any amendment to the Code should follow the same route, which has not been done.
Another issue relating to sanctions is that in certain instances, they will not be applicable at all. In some PP reports, the conclusion was made that no remedial action should be taken against the member that was the subject of the report and who had been found to have violated the Code because he or she was no longer a member of the Executive, and so it would be moot to do so.[xiii] This is because in terms of the Act, fourteen days after receiving the PP report, the President or Premier must recommend the action to be taken against the offending member to the NA, NCOP, or provincial legislature, as the case may be.[xiv] If the member is no longer a part of any of these bodies, the body would not have authority over him or her, and thus no action can be taken.
This is unfortunate, since it effectively means that a member can act unethically and face zero repercussions. There is no reason for members to abide by the Code, when they could choose instead to blatantly and unapologetically violate it and then resign from their position.
ISSUE 3: RESIDUAL FLAWS
In Report 1 of 2010/2011,[xv] the PP noted that anomalies in the Code identified by previous PPs had been unaddressed. In summary, the anomalies were that:
There was a lack of clarity about which disclosures are necessary[xvi] where such disclosures should be made and in how much detail the disclosures must be made;[xvii]
There was uncertainty on the office or person that the President should approach regarding the acceptance of gifts with a value exceeding R1000; [xviii]
The details of interests disclosed in the Register of Financial Interests of Members of the Executive (the Register) were not meticulously kept by the Secretary of the Cabinet (the Secretary); [xix]
There were inadequate administrative support mechanisms in place to aid compliance with the obligations in the Code;[xx] and
There was a risk of a breach of confidentiality since “there appeared to be more than one person assisting the Secretary ... with the management of the Register”.[xxi]
It is uncertain whether any internal measures have been implemented to address these concerns.
IGNORING RECOMMENDATIONS
In Report 1 of 2010/2011, the PP recommended that Parliament should consider amending the Act to address all the uncertainties and anomalies identified above.[xxii]
She stated further that specific attention should be devoted to providing clarity on who the President should approach regarding the acceptance of gifts with a value in excess of R1000; whether such office or person should grant permission or advise the President regarding the gift; and who should receive a PP report involving the ethical conduct of the President.[xxiii] This report also recommended the introduction of sanctions identical to those applicable against Members of Parliament found guilty of violating the Parliamentary Code of Conduct. As stated above, this resulted in interim sanctions being put in place.
On 6 May 2011, the Draft Executive Members’ Ethics Amendment Bill, 2011 was published for public comment.[xxiv]Although the PP had recommended several changes to be made to the Act and Code, the only change contemplated by the Bill was that the PP should submit her report to the Speaker of the NA if the complaint of a breach of the Code is made against the President.[xxv] Strangely, no provision for sanctions was included in the Bill. Despite the publication of the Bill, it was not submitted to Parliament and no change to the Act or Code was made.
Change was again contemplated following the publication of Report No: 6 of 2016/17, in which PP Thuli Madonsela reiterated that Parliament should review the Act and that the President should amend the Code in line with the Act. [xxvi] She noted that the Act should be reviewed to improve the provisions dealing with integrity and avoiding conflict of interest, and to clarify the proper response to whistleblowing and whistle-blowers”.[xxvii] Soon thereafter, the Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly affirmed that PP recommendations are binding unless reviewed by a Court.[xxviii]
As a result, a series of meetings was held by the Portfolio Committee on Justice and Correctional Services (the Committee) in 2017.[xxix] It was noted that the power to initiate legislation belongs to the Executive, and that the President had, on 6 November 2017, announced in the Government Gazette that he had transferred the administration of the Act to the Minister of Justice and Correctional Services.[xxx] As such, the Committee elected not to run a parallel process and recommended that the NA request the Minister of Justice and Correctional Services to investigate possible shortcomings in Act that may require legislative amendment and to introduce this to Parliament.[xxxi] Since then, nothing seems to have happened.
CONCLUSION
Clearly, the Act and the Code are in need of urgent reform. The flaws that have been identified are that the President is allowed to be a judge in his own cause, that sanctions are occasionally unavailable for those who violate the Code, and that there is a general lack of clarity and administrative support in the Act and the Code. These issues had been highlighted over a decade ago, yet change remains elusive. It is of the utmost importance that the Minister of Justice and Correctional Services urgently reviews the Act and the Code, and that Parliament introduces amendments.
By Zeenat Emmamally, Legal Researcher, HSF [email protected]
[i]Act 82 of 1998.
[ii]Government Gazette No 21399 of 28 July 2000, available here.
[iii]Section 91(1) of the Constitution of the Republic of South Africa, 1996.
[iv]Sections 3 and 4 of the Act.
[v]2021 (9) BCLR 929 (CC).
[vi] Ibid para 135.
[vii]Ibid para 134. The Court stated an example in footnote 53 that: ‘Section 102 of the Constitution empowers the National Assembly to remove the President from office by a motion of no confidence’
[viii] Public Protector “Report no. 1 of 2010/11 - Report of on an investigation into an alleged breach of section 5 of the Executive Ethics Code by President JG Zuma” (21 April 2010), available here.
[ix] Ibid at page 20.
[x] Cabinet statement on interim sanctions for members (27 July 2010), available here.
[xi]Ibid.
[xii] Section 2 (1).
[xiii] See the following PP reports:
· Report No. 24 of 2018/19 on an investigation into allegations of a violation of the Executive Ethics Code by the Minister of Sport and Recreation, Mr Fikile April Mbalula, conflict of interest, improper conduct and/or irregular conduct in connection with funding and/or sponsorship for a family holiday trip to Dubai during the period 28 December 2016 to 03 January 2017, available here.
· Closing Report: Report 137 of 2019/20 on an investigation into allegations of violation of Executive Ethics Code and the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 by the former Minister of Agriculture, Forestry and Fisheries, Mr Senzeni Zokwana, available here.
· Report No. 18 of 2020/21 on an investigation into allegations of a violation of the Executive Members Ethics Code and the South African Citizenship Act 88 of 1995 by the former Minister of Home Affairs, Mr. Malusi Gigaba, available here.
[xiv] Section 3 of the Act.
[xv] See note viii above.
[xvi] Ibid at page 16.
[xvii]Ibid at page 18.
[xviii] Ibid at page 20
[xix]Ibid at page 18
[xx]Ibid at page 14 and 15.
[xxi] Ibid at page 15.
[xxii] Ibid at page 21.
[xxiii] Ibid at page 20 and 21.
[xxiv] Executive Members' Ethics Amendment Bill, 2011 (6 May 2011), available here.
[xxv] Ibid.
[xxvi] Public Protector “Report No: 6 of 2016/17 on an investigation into alleged improper and unethical conduct by the President and other state functionaries relating to alleged improper relationships and involvement of the Gupta family in the removal and appointment of Ministers and Directors of the State-Owned Enterprises resulting in improper and possibly corrupt award of state contracts and benefits to the Gupta family’s businesses” (14 October 2016), available here, at page 354.
[xxvii]Ibid.
[xxviii]2016 (5) BCLR 618 (CC).
[xxix]Portfolio Committee on Justice and Correctional Services meeting on 5 September 2017, available here; Meeting on 1 November 2017, available here; Meeting on 08 November 2017, available here; Meeting on 15 November 2017, available here.
[xxx]Government Gazette No. 41230 of 6 November 2017.
[xxxi]Note xxix above.
