According to legend, the Roman Emperor, Caligula, decided to appoint his horse as pro-consul during a particularly trying time in the history of Italy. At that stage, the rule of law had apparently not been sufficiently developed to do anything about his novel and somewhat strange decision. A peek at the history.com website is revealing. It seems that “many scholars reject the notion that Caligula terrorised Rome with his unbridled madness, arguing that his fellow lawmakers would likely have whisked him out of power for such conduct. So while Caligula might have had an unusual fondness for his horse, it’s unlikely the emperor went so far as to appoint the stallion.

“But what if Caligula actually did plot to create Rome’s first equine official? According to historian Aloys Winterling, author of Caligula: A Biography (2011), insanity isn’t the only logical explanation for such behaviour. In his book, Winterling makes the case that many of the emperor’s wackier stunts, including his treatment of his stallion, Incitatus, were designed to insult and humiliate senators and other elites.”

The question on the lips of many patriots and investors in SA at present is whether or not, in the fullness of time, Brian Molefe will ascend to the key Cabinet portfolio that the rumour mill has marked out for him, and if so, whether anything can be done in law to prevent it.

The law has come a long way since the days of Caligula and Rome. Even though our law remains of Roman-Dutch origin, we now have a supreme Constitution which entrenches the rule of law and constrains the conduct of all in positions of power, including the president.

The national Cabinet is appointed by the president and its members serve at his pleasure. The president hires and fires Cabinet ministers at will; he has a discretion to appoint whomsoever he pleases. If his choices do not appeal to the electorate, the remedy is to vote his party out of power, thereby effectively depriving him of the privilege of choosing a Cabinet as the executive authority of the land. If his choices do not please his party then it may, according to the traditions of the ANC, recall him and replace him with another president elected by the National Assembly sitting as an electoral college under chairmanship of the Chief Justice or another judge delegated by him.

All Cabinet members are bound by a code of ethics; they may not undertake any other paid work, act in a manner inconsistent with their office, become involved in conflicts of interest or use their position for improper benefit.

The question which arises, in relation to the exercise of the presidential discretion to appoint his Cabinet, is whether the discretion is constrained in any way. Does he have the power, in other words, to appoint a horse or any part of a horse’s anatomy as a member of his Cabinet?

The answer is a resounding “no!”.

If the rule of law, and its supremacy in our constitutional dispensation, means anything, it means that the doctrine of legality applies to the decision-making that is required for appointing Cabinet ministers and this means that the decisions so taken have to be rational. An irrational decision would be invalid because it would amount to conduct inconsistent with the Constitution.

To take a purely hypothetical example: assume that a sitting president dismisses a senior and well-respected minister of finance whose international reputation and record of service is impeccable, whose work on saving the economy is ongoing and who is available and in sufficiently good health to continue to serve. Assume further that the replacement for this minister is of dubious repute, questionable ethics and quite obviously, on his track record, incapable of acting in the manner expected of Cabinet members as set out in section 96 of the Constitution and summarised above.

Would the decision of the president to replace his tried and tested colleague with the new appointee amount to conduct of the kind that passes the test of rationality? If it does not, a declaration of its invalidity is available to any public interest litigant who feels aggrieved by the decision and is sufficiently concerned to impugn the conduct involved in the decision-making process.

The beauty of the supremacy of the Constitution and the rule of law is that they constrain politicians and public servants to the standards set both in the detailed provisions in the Constitution itself and also to observe the standards set by the rule of law.

The fate of Menzi Simelane, the first National Director of Public Prosecutions to be appointed by President Zuma, is illustrative of the point. While Simelane had no criminal record, his probity and credibility had been the object of adverse findings in the report of the Ginwala Commission of Enquiry into the fitness for office of Vusi Pikoli, now Police Ombud in the Western Cape, then predecessor to Simelane. This is how the Constitutional Court viewed the situation when it unanimously concurred in the earlier decision of the Supreme Court of Appeal:

“The Minister and Mr Simelane accept that the ‘executive’ is ‘constrained by the principle that [it] may exercise no power and perform no function beyond that conferred . . . by law’ and that the power must not be misconstrued. It is also accepted that the decision must be rationally related to the purpose for which the power was conferred.”

With reference to what emerged in the Ginwala Commission of Enquiry the court observed:

“The contradictions [in his evidence] reflect on Mr Simelane’s credibility, integrity and conscientiousness. They were and remain material. Any decision, by any person aware of this evidence, to ignore it in the decision-making process involving Mr Simelane’s credibility would have been, on the face of it and in the absence of any explanation from that person, not rationally related to the purpose for which the power was conferred…

“… The records of the Ginwala Commission were and remain highly relevant to Mr Simelane’s credibility, honesty, integrity and conscientiousness. The Minister’s advice to the President to ignore these matters and to appoint Mr Simelane without more was unfortunate. The material was relevant. The President’s decision to ignore it was of a kind that coloured the rationality of the entire process, and thus rendered the ultimate decision irrational.”

The upshot of that case was that Simelane was unceremoniously relieved of his position as National Director of Public Prosecutions by the decisions of the two highest courts in the land.

It is fervently to be hoped that before he makes any decisions about the promotion of the person, already anointed by the rumour mill, to his Cabinet, the president has due regard to the contents of the report of the Public Protector, Advocate Thuli Madonsela, which is called “State of Capture”. It contains a great deal of information regarding the “credibility, honesty, integrity and conscientiousness” of Brian Molefe. If that is too much effort for the president, he can always view a few back issues of the Carte Blanche reports on the Eskom coal deals.

The repetition of the mistakes of history, whether they involve Caligula’s horse or Simelane’s appointment, should be avoided. DM

Paul Hoffman SC is a director of Accountability Now and author of the book Confronting the Corrupt