South Africa

ANALYSIS

After a week of horror, Gigaba needs to rope-a-dope for survival

Minister of Home Affairs Malusi Gigaba during the African National Congress (ANC) manifesto consultative workshop on June 25, 2018 in Centurion, South Africa. (Photo by Gallo Images / Sowetan / Thulani Mbele)

Home Affairs Minister Malusi Gigaba’s horror week just got even worse on Thursday: his bid to overturn a finding that he had lied under oath ended when the Constitutional Court dismissed his appeal as having “no prospect of success”. A day earlier the public protector told President Cyril Ramaphosa to take appropriate action over ministerial untruths that violated the Constitution and executive ethics law and codes – after the Oppenheimers on Tuesday told MPs the minister had previously lied to them. Against all this the leaked sex tape looks like a long stale piece of cake.

If President Cyril Ramaphosa wanted to, he could sack Home Affairs Minister Malusi Gigaba on the back of the public protector’s determination. It would not be his first instance of linking a finding of a breach of executive ethics with removal from Cabinet.

In letters dated 1 March 2018 Ramaphosa informed National Assembly Speaker Baleka Mbete, under the heading of “Report of the public protector into alleged violations of the executive ethics code…” that he had “relieved of duties”, respectively, former public enterprises minister Lynne Brown and former co-operative governance minister Des van Rooyen. The letters were tabled in the Announcements, Tablings and Committee Reports (ATC), or Parliament’s record of work.

Both ministers lost their Cabinet jobs in the reshuffle at the end of February 2018. Van Rooyen stayed on in the ANC benches in Parliament. Brown, who maintained she had not misled Parliament as Eskom had lied to her when it said the power utility never paid the Gupta-linked Trillian, resigned as MP.

Ramaphosa has 14 days to make his decision on what action to take in line with Public Protector Busisiwe Mkhwebane’s report that upheld DA Chief Whip John Steenhuisen’s complaint that Gigaba had lied under oath and thus violated the Constitution, Executive Ethics Act and codes, that requires of members of the executive to “act in good faith and in the best interest of good governance” and also “consistent with the integrity of office or government”.

Central was whether or not Gigaba had given permission for the Oppenheimer-owned Fireblade Aviation to operate a private terminal at OR Tambo International Airport. While the minister said he did not, the Oppenheimers said yes, he did – that’s also what billionaire businessman Nicky Oppenheimer told Parliament’s home affairs committee on Tuesday – and successfully took him to court. In December 2017 the Pretoria High Court found Gigaba had told “deliberate untruths”, a ruling upheld by a full Bench of the Pretoria High Court in January 2018:

The minister has committed a breach of the Constitution so serious that I could characterise it as a violation,” that judgment said.

Gigaba’s legal bid to appeal this was stopped once and for all when – after the Supreme Court of Appeal in late March having said there was no prospect of success – the Constitutional Court on Thursday found the same: “… the application for leave to appeal should be dismissed as it bears no prospect of success”.

Fireblade Aviation in a statement on Thursday welcomed this.

With this decision, these legal proceedings have now concluded. We are satisfied with the result and the manner in which the legal process has culminated in a just and fair outcome,” it said in a statement.

The Presidency on Thursday confirmed that the public protector report was in Ramaphosa’s in-tray.

He will apply his mind to it and options available to him and decide appropriate course of action thereafter,” said presidential spokesperson Khusela Diko.

The 14-day countdown has effectively started for Ramaphosa to take action as outlined in Mkhwebane’s determination. Then the president has to inform Mbete, who as Speaker then has 14 days to refer the matter to Parliament’s joint ethics committee as ministers, except for two, are also MPs and thus bound by the parliamentary code of conduct and ethics. Ramaphosa has all of 20 days to let Mkhwebane know what he’s done.

There are lots of time lines, and Ramaphosa doesn’t move fast, or directly.

It took seven months after first suspending tax boss Tom Moyane in March to sack him with immediate effect on Thursday. That happened on the back of the recommendation of Judge Robert Nugent in an interim report on inquiry into governance issues at the South African Revenue Service (SARS).

According to a statement by the Presidency, Ramaphosa wrote to Moyane that the Nugent Commission “paints a deeply concerning picture of the current state of SARS and the reckless mismanagement which characterised your tenure as Commissioner of SARS”.

Of further, and in many ways greater, concern is your (Moyane’s) refusal to meaningfully participate in the SARS Commission in order to assist with identifying the root causes of the systemic failures at SARS and ways in which to arrest these.”

And the process of finding a new National Director of Public Prosecutions following the August 2018 Constitutional Court ruling that Shaun Abrahams’ appointment by former president Jacob Zuma was invalid, will take 90 days. A panel of legal organisations and independent public institutions chaired by Energy Minister Jeff Radebe was established on 14 October, and agreed to have recommendations for presidential considerations by 7 December. It’s cutting it fine, but it will be done.

On Gigaba, Ramaphosa is unlikely to move rashly, given he has 14 days. As ANC president Ramaphosa would be keenly aware of the finely balanced factional interests; just because these are no longer up front in everyone’s face doesn’t mean they are not simmering on.

The politicking around Gigaba could be tricky: once firmly associated with the radical economic transformation grouping linked to Zuma, he’s not part of the pushback against Ramaphosa, but also not quite enjoying the full trust of the other side.

Before the 14 days are up, there’ll be a few other things happening. The ANC this weekend holds a special meeting of the National Executive Committee (NEC), its highest decision-making structure between national conferences. And on Monday the ANC Top Six officials have their regular meeting, with “the issues facing Gigaba” on the agenda, as the party Treasurer-General Paul Mashatile told the SABC.

It’s important as the officials of the ANC we are abled to consider this matter in detail…We may well even want to hear the affected comrade,” Mashatile said.

Gigaba may well decide to fall on his own sword and resign from Cabinet. It remains to be seen how likely that is for a career politician who unlike, say, Nhlanhla Nene, whose resignation as finance minister and MP came quickly for having lied about meeting the Guptas, has few prospects of private sector professional opportunities. Gigaba grew up in the ANC, and led the ANC Youth League from 1996 to 2004, becoming its youngest president ever at age 25. And his career has revolved around the politics of the governing party and elected public office.

If he resigns from Cabinet, he can stay on as MP. It’s a gamble, this close to elections, but the list processes can be kind and the ANC is forgiving to those who humble themselves, as the party language puts it.

Or he can stay on in the executive, arguing that the public protector was wrong and he’s taking the report on review to court. The prospects of that remain an uphill, almost impossible battle given the Constitutional Court’s rejection of the leave to appeal application.

Or he can take a gamble that the president of the country, aware as president of the governing party of the finely-balanced factional interests in the ANC, will take a step short of dismissal. For example, a written reprimand that may or may not amount to a significant censure.

In the cross-section of politics and governance often there are various options available. In late April 2016, in the wake of the Nkandla Constitutional Court judgment, the then president Zuma gave effect to the public protector’s determination that he needed to reprimand the ministers of public works and police.

The Constitutional Court has affirmed the direction by the Public Protector, among others, that I am required to reprimand the Ministers involved in the Nkandla project, for what the Public Protector termed ‘the appalling manner in which the Nkandla Project was handled and state funds were abused’… Pursuant to the letter, I hereby deliver the reprimand required. I am doing so to each of the Ministers indicated by the report,” said these letters of reprimand dated 20 April 2016 that were also tabled in Parliament’s ATC.

But Gigaba got himself on the ropes. The official line from his office is the minister would study the public protector report and advise on his next step, while the Constitutional Court decision had been referred to the Home Affairs Department to study and announce further steps.

This has come amid calls for Gigaba’s sacking from the opposition DA and Cope, but also from trade union federation Cosatu, one of the ANC tripartite alliance partners.

The ANC has an image and credibility problem and if it is to rehabilitate its image in the eyes of South Africans it needs to be decisive in dealing with people of disreputable character,” said Cosatu in a statement.

President Cyril Ramaphosa needs to ensure that his Cabinet is full of properly adjusted people, who understand that they are not there to serve themselves and their friends but serve the nation. He cannot afford to continue to incubate people who are contemptuous of the rule of law.”

What happens next in this Gigaba saga will be telling – for both the ANC and government. DM

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