From bringing back experts to Eskom (an idea first raised publicly in 2019); to recycling measures such as increasing the legal drinking age to 21 (which may already have been law, alongside a block-out of booze advertising and a ban on drinking establishments and drinking alcohol within 500 metres from schools and places of worship, if the 2016 draft liquor amendment legislation had not been allowed to gather dust after an initial departmental public comment period); to still talking about the State-Owned Entities Shareholder Bill (the legislative overhaul of governance and reform that goes back four finance ministers following Malusi Gigaba’s July 2017 “inclusive growth action plan” of 14 points which now seems finessed to a new state-owned SOE holding company that’s been talked about since February) — it’s not the governance the Constitution envisaged in its foundational values of accountability, transparency and responsiveness.

Shifting blame

It’s not the SA Police Service, it’s the lack of lights, proper streets, CCTV cameras, or what Police Minister Bheki Cele likes to cite when asked why police were MIA — again: the “environmental design”.

Despite ministers thumping on about “a war on crime”, the official statistics are up — Cele’s KPIs are to bring crime down —  as are communities’ complaints about police not responding to callouts as well as reports of offences. Never mind the backlog of tens of thousands of DNA and other samples that continue to pile up at the SAPS’s forensic laboratories – a year after alarm bells were first rung because without those forensic analysis reports, cases can’t go to court. 

South Africa has also been left in the dark, hit with power cuts during the coldest months – Stage 6 rotational power cuts for a never-before-seen number of days.

Mineral Resources and Energy Minister Gwede Mantashe was recently quoted by News24 as saying he’s not responsible because Eskom was in the public enterprises portfolio: “It’s unfair to place blame on myself or the government. What should I do with Eskom as mineral resources and energy minister? The power utility is a matter under public enterprises. But despite it being under public enterprises, government as a whole has gone the extra mile…”

Mantashe’s performance agreement with President Cyril Ramaphosa does not absolve the minister for absolving himself from the rolling power shortages. It reads: “Create maintenance space for Eskom by augmenting supply with 2,000MW of emergency power, additional power from IPPs [independent renewable projects] and generation for own use in line with IRP 2019. Implement the Integrated Resource Plan 2019.”

That hasn’t happened — apart from a couple of mini-projects totalling 300MW. The Karpowership deal for 1,220MW, which many claimed came with the smell of not gas but corruption, remains before the courts.

It’s not clear what, if anything, is happening on an urgent basis but at least the bid windows for IPPs are now ticking over after years of delays. And, yes, the IPP office is in Mantashe’s portfolio.

Other performance indicators related to electricity and rotational power cuts for Mantashe include to “increase reserve margin to counter load shedding” from a baseline of 4.3% to 15% by 2024,  to provide legislative and regulatory framework “for a restructured electricity supply industry” and, of course, “additional megawatts commissioned”.

Back in April, in a briefing update related to the rolling power outages, Eskom CEO André de Ruyter proposed six steps to urgently raise power availability, including a change in contracts so existing renewable projects could contribute more than the agreed to amounts to the grids. 

Read in Daily Maverick: Load shedding is here to stay for (at least) another year, while the government dithers on policy

That seems to still be outstanding. Instead, information is now being recycled in various leaks — such as bringing back old experts to Eskom — to signal that Ramaphosa is taking charge since his return from the G7 summit, including getting stuck into the Eskom wage deadlock.

The situation was very different just a few years ago. In 2018, Eskom’s zero-percent wage offer collapsed negotiations that led to wildcat strikes and, yes, rotational power cuts. Police arrested at least 18 people and Public Enterprises Minister Pravin Gordhan stepped in.

“The parties have agreed that the current disruptions at Eskom that resulted in load shedding … are not beneficial to either party nor the country and the economy,” Public Enterprises said in a statement on 15 June 2018, announcing that wage negotiations would resume.

Increasingly centralised powers in the Presidency

Ministers on public platforms — from Parliament to funerals and elsewhere — more and more frequently invoke, often repeatedly in one speech, the President, His Excellency Matamela Cyril Ramaphosa. It’s all, “as the President said…”, “as the President directed us to do…” and “as the President instructed…”.

It echoes the tone of Thabo Mbeki’s presidency, and at least the first term of Jacob Zuma’s presidency. This signals how much remains consistent across time and factional battlelines, never mind claims of rebuilding and renewal. 

That includes tensions in the top echelons of the public service, which has become juniorised with just more than a handful of directors-general having served more than one five-year stint.

Read in Daily Maverick: SA Govt’s Directors-General: Perpetual tensions, loss of institutional memory, (often) crashing uncertainty

The so-called super presidency is an ANC 2017 Nasrec resolution: 

“The Presidency is the strategic centre of governance. The strategic centre must be the central driver of the developmental state and the following core resource-based administrative functions must form part of the centre of government to support the strategic centre: state macro policy and planning; budget and resource allocation and prioritisation; cooperative governance; public services; and performance management.”

Defenders of this approach reference Section 85(1) of the Constitution, “The executive authority of the Republic is vested in the President”. Yet this power is exercised with members of the Cabinet, according to Section 85(2).

It’s critical not to read one constitutional section in isolation for political motivation. Elsewhere, the Constitution stipulates how ministers must conduct their responsibilities and account to Parliament for this — and charts cooperative, responsive and accountable governance across the board.

Ramaphosa chairs, among other bodies, the Presidential Coordination Council with premiers and mayors, as well as the State-Owned Entities Council (which has, since 2020, been looking at a new shareholder model and reforms). 

The Presidency includes a series of other structures to deal with anything from employment, investment, climate change to cutting red tape and Operation Vulindlela, the joint initiative with the National Treasury to accelerate economic reform.

Given the centralisation of presidential powers, it’s perhaps not surprising that the President takes over from ministers.

In June 2021, Ramaphosa announced the licensing threshold for embedded power would be raised to 100MW, 10 times what his mineral resources and energy minister was prepared for, and double what business had requested in various discussions, including at the National Economic Development and Labour Council (Nedlac). It’s part of Mantashe’s performance agreement with the President, as is the development of a “framework for a just transition to a low-carbon economy developed and implemented by 2022”. 

On 5 July, the Presidential Climate Commission (PCC) welcomed Ramaphosa accepting the just transition framework, finalised on 27 May, according to a commission statement.

“In a meeting today between PCC commissioners and the President, the President undertook to champion the framework within government, informed by the aspirations of workers, social partners, and our communities.”

The money, in effect $8.5-billion made available on the sidelines of the 2021 Glasgow COP26, is dealt with elsewhere – by Daniel Mminele, who heads the Presidential Climate Change Financial Task Team.

Ministerial galumphing, cracking governance processes 

It’s taken about five years for the National Treasury to bring to Parliament schedules related to the 2017 Financial Intelligence Centre Amendment Act, which are needed for South Africa’s continued good standing in the global anti-money laundering Financial Action Task Force (FATF).

Crucially, schedules to legislation are part of the law, and need public hearings. They are different to ministerial regulations that, if they come to Parliament — not all do — may entail just a briefing to MPs followed by deliberations, before a committee agrees to whether a report to the House is adopted, or not.

When the National Treasury briefed Parliament’s two finance committees on 15 June — the last day before its 10-week recess — the emphasis was on the threat of greylisting, which would make investment in South Africa difficult, if not nigh impossible. 

But the National Treasury took more than three years to consult after the foundational Act was finally passed and signed into law by the President in May 2017. 

By June 2020, the schedule proposals were published for public comment before 18 August 2020, according to the transcripts of the Parliamentary Monitoring Group (PMG). 

It took until the end of March 2022 to get the finance minister’s approval for the final version which took another six weeks to finally come to Parliament on 17 May 2022.

After all that, parliamentarians were expected to process the schedules before October 2022, even though, as it later turned out, there was a measure of flexibility to February 2023 when FATF against sits, if action in progress can be shown.

It’s the most recent, but by no means isolated, example of how ministers and their departments take their sweet time.

Home Affairs Minister Aaron Motsoaledi whittled away 18 of the 24 months the Constitutional Court gave Parliament to ensure independents could contest national and provincial elections. That Parliament allowed this is part of the quagmire.

Operation Vulindlela may tick off its list of structural reports, but there is a tick against the national water resources infrastructure agency draft law even though the bill is nowhere near Parliament yet.

Read in Daily Maverick: Operation Vulindlela’s claims of success reality-checked by legislative delays and inefficiencies 

And the clock is ticking on the Electricity Regulation Amendment Bill, in the making since mid-2021, that Mantashe promised would be in Parliament in July 2022.

Both pieces of legislation are central to water security and power sustainability. They have been discussed and compacted on by Nedlac and encompass issues such as sustainable power supplies, including the 100MW embedded power licensing threshold as a key economic reform for growth alongside the scarce skills list. The draft of this just made the deadline of the presidential reply in the 2021 State of the Nation Address parliamentary debate.

The final version, when it was published in February 2022, was months late and it raised eyebrows, especially over its omission of nurses, general and specialised, which South Africa needs.

The misapplication of lawmaking: Take one

Bills usually originate from Cabinet ministers. The ANC’s numerical dominance in Parliament means Private Members’ bills, which the opposition frequently uses to put its policies into law, are voted down.

Most recently the electoral reform draft legislation to introduce constituencies that Cope leader Mosiuoa Lekota had tabled in 2021 was voted down as “undesirable” by his fellow MPs. This clears the way for Motsoaledi’s minimal technical draft legislation to accommodate independents, as ordered by the Constitutional Court.

That Electoral Amendment Bill hit Parliament in December 2021 after a process in government and also in Luthuli House, where it was decided in September 2021 to go with the minority option of the ministerial advisory committee. In June 2021, this had recommended a constituency system together with proportional representation.

Six months down the line, what was styled as a straightforward technical change is mired in key policy choices such as how to calculate seats. It’s for Parliament to reflect why, in this specific instance but also in others, a Private Members’ bill is voted down in deference to executive legislative proposals. 

The Constitution and parliamentary laws are clear – with the exception of Money bills (in effect the Budget), Parliament can “initiate or prepare legislation”, according to Section 55 of the Constitution. 

To the best of anyone’s recollection, the governing ANC only once initiated a Private Members’ bill — and that was to save the reopening of the land claims window after the Constitutional Court declared the 2014 Restitution of Land Rights Amendment Act invalid and unconstitutional in 2016.

The one Private Members’ bill to make it was the 2017 Labour Laws Amendment Bill by ACDP MP Cheryllyn Dudley that expanded paternity leave for fathers.

That same sitting in November 2017 voted down the Medical Innovation Bill brought by terminally ill IFP MP Mario Oriani-Ambrosini, who in 2012 successfully challenged how Parliament dealt with Private Members’ bills.

After the 2018 Constitutional Court ruling in favour of decriminalising dagga for personal use, Cabinet brought the Cannabis for Private Purposes Bill to Parliament in 2020.

The misapplication of lawmaking: Take two

Increasingly, Cabinet seems intent on dealing with ministerial and departmental issues not by resolving, for example, officialdom’s misinterpretation of legislation or implementation gridlock, but with new or amendment legislation.

Parliament has been put on notice to expect another 61 bills before the end of the 2022/23 financial year. 

But just because a minister announces a bill doesn’t mean it’s a done thing. A draft bill needs a departmental public comment period, followed by a possible redrafting, and then certification as a bill that can be taken to Cabinet for approval to table in Parliament, according to the national legislature’s Bills Office, which earlier took the unprecedented step to raise this in the National Assembly programming committee. 

Apparently, some of the draft legislation that had recently arrived at Parliament from Cabinet had been scrappy and missing bits, such as the traditional memo and certification by the State Law Advisers.

Dumping 61 bills by financial year-end is unrealistic — and contributes to the governance gridlock. 

On average, Parliament passes 20 bills a year, of which seven are mandatory to ensure the February Budget and October Medium-Term Budget Policy Statement allocations can be disbursed.

Already before Parliament are 39 bills, some dating back to 2017, such as the Traditional Courts Bill or the 2019 National Health Insurance (NHI) Bill.

Lawmaking is not necessarily complicated, but it is potentially time consuming given public hearings that the National Assembly must do as the constitutional entity “elected to represent the people and to ensure government by the people under the Constitution”.

But lawmaking in constitutional democratic South Africa is meant to be participatory, with public hearings and public submissions as well as redrafting to reflect this after a multiparty process of deliberations by elected public representatives.

And lawmaking is subject to judicial scrutiny, including the quality and validity of public participation in the legislative process. The Constitutional Court has declared invalid several laws because of inadequate public participation — from the amendments to the Medicines and Related Substances Act that suddenly included veterinarians, to the Restitution of Land Rights Act that was passed shortly before the 2014 elections to reopen the land claims window, which had closed in December 1998.

It’s a reminder to any minister, after taking their sweet time, to do the departmental processes such as allow for a public comment period and the redrafting of draft laws. 

But in South Africa’s messy governance, it seems easier to call for a return to apartheid’s parliamentary democracy, as KwaZulu-Natal Premier Sihle Zikalala did on Human Rights Day, claiming judicial overreach. 

Read in Daily Maverick: KwaZulu-Natal premier’s dangerous call for a return to apartheid-style governance

“It is time we should debate whether the country does not need parliamentary democracy where laws enacted by Parliament should be above all and not reviewed by another organ,” Zikalala said.

Perhaps it’s frustration that those who see themselves as controlling the levers of state power, as the governing ANC lingo goes, can’t do as they wish, when they wish. 

Conflation of party and state 

Newly elected Gauteng ANC chairperson Panyaza Lesufi put it plainly in an interview with eNCA on 28 June: 

“If you can’t get the ANC right, you will never get the government right… The majority of ANC members rely on state employment opportunities to survive. That’s not good, not good at all. And the battles of the ANC become the battles of government,” he said, adding later: “We have to fix the ANC first so that we can fix our country … If we can’t get the ANC right, we can’t get government right.”

It’s a blunt outcome of how the governing ANC’s perpetual factional fractures and battles impact, in the main, through cadre deployment at all levels of government and SOEs.

The State Capture Commission report is scathing about cadre deployment, saying it is “unlawful and unconstitutional” given the legislative and constitutional imperatives of an efficient, fair and effective public administration.

“The Constitution envisages a public administration that maintains a high standard of professional ethics: that is efficient, economic and effective in its use of resources and that is impartial, fair, equitable and without bias,” says the report in summarising Section 195 of the Constitution that sets out the basic values and principles governing public administration.

Following its most recent National Executive Committee (NEC) meeting, the ANC said in a statement on 5 July that it would review that policy, alongside others. No timeframes or deadlines were provided.

And so embedded remains a culture of impunity — and a politicised public service administration focused on servicing ministers and making sure a paper trail shows conduct that can be defended whichever way the wind blows. 

SOEs and institutions such as the SABC, South Africa’s public broadcaster, are hamstrung by a lack of independent and professional boards that are protected from ministerial interference and meddling.

Also embedded remains a Cabinet system that often allows months to go by before agreeing to a particular point as it makes its way through Cabinet committee to eventually a meeting of the full Cabinet.

Although this may well assist in smoothing out intra-ANC ideological or other disagreements – and try to get ministers on to the same page – it has centralised the party political in governance. And, in the hyped stakes of a governing ANC elective conference year, it is paralysing, never mind the PR optics such as launches and public-speaking engagements deployed to boost political egos and get airtime and column inches.

Add a good dollop of institutional amnesia, some fact fudging and recycling of old notions — and responsive, accountable and transparent governance crumbles. DM