The Cabinet is the primary executive organ of the country, yet much of its work is shielded from public view by the doctrine of Cabinet secrecy. This lack of transparency poses a threat to our nascent democracy, already besieged by corruption, incompetence, and high-level organised crime. It may be time for an honest reassessment.
The Cabinet enacts national legislation, develops and implements national policy, coordinates state departments and administrations, initiates legislation, appoints and reshuffles ministers, and carries out other executive functions as specified in the Constitution or national legislation.
It deliberates and decides on crucial issues such as national security, economic policy, social reforms, and foreign policy.
At the very least, it determines the country’s allies, negotiates and finalises international trade and other agreements, manages SOE policy, and makes decisions on sensitive matters such as intelligence infrastructure, surveillance, and fiscal and social policy.
It is no wonder that the Constitutional Court affirmed in Helen Suzman Foundation v JSC & others (Suzman) that the Cabinet’s deliberations have a profound impact on citizens’ lives.
Despite the importance of these issues to civil society, the Cabinet’s deliberations and decisions are largely confidential. The problems this creates are clear.
Abuses of power within the Cabinet often go undetected or are detected too late. Even if the final Cabinet decisions are publicly announced, those decisions often appear legitimate. However, it is in truth, the reasoning and the preceding deliberations that expose abuses of power and corruption. Refusing access to deliberations quite obviously hinders and substantially delays oversight.
The recent Takatso/SAA debacle serves as an example. Briefly, the privatisation of SAA, including the sale of a 51% stake to Takatso, has been marked by secrecy and lack of transparency, despite concerns raised by Parliament, the National Treasury and the Auditor-General, and despite public funding of R38.1-billion.
More than two years ago, it was reported in Daily Maverick that the Cabinet was deeply involved in this transaction. The Cabinet’s decisions, deliberations, reports, and decisions surrounding this deal were all kept confidential for more than two years. They had no obligation to release those details and no one knew to fight for them in court.
We now find ourselves in a complex mess, untangling what appears to be a Gordian knot with strong potential undertones of malfeasance and corruption plaguing the deal.
This is a perfect example of how Cabinet confidentiality limits Parliament’s oversight functions, and disempowers the investigative arm of the fourth estate — often until it is too late. As disturbing as the example is, it is probably relatively minor if one looks at the extraordinary breadth of Cabinet powers listed above.
But why does the Cabinet enjoy such latitude? The answer lies, at least in part, in the practice of Cabinet secrecy.
The doctrine of Cabinet accountability and secrecy
Notwithstanding that section 32(1)(a) of the Constitution provides that “everyone… has the right of access to any information held by the state”, the legislation enacted to give effect to that right (the Promotion of Access to Information Act (Paia)) excludes Cabinet minutes, and Cabinet committee minutes from its ambit.
What this means is that any individual wishing to access Cabinet records must rely directly on section 32 of the Constitution, and litigate to gain access.
Cabinet, and its committees, can be expected to guard their records and documents jealously. In so doing, and as they justify their refusal to provide records under section 36(1) of the Constitution, they are likely to rely on what is known as “the doctrine of collective Cabinet accountability” and its associated practice of Cabinet secrecy.
Collective accountability is grounded in the Constitution. Section 92(2) of the Constitution provides that the Cabinet is “collectively accountable” to Parliament for the exercise of its powers and the performance of its functions.
As Geoffrey Marshall described in Constitutional Conventions, there are three traditional branches to the collective responsibility doctrine: the third of the rules is the most relevant. It is referred to as the “confidentiality rule”, which protects the confidentiality of discussions in Cabinet.
This is not expressly provided for in the South African Constitution but it has become a practice and has, to a degree, been judicially endorsed.
The rationale for the collective responsibility is clear. It is to create a situation in which all Cabinet members take collective responsibility for policy decisions, and can be held collectively accountable.
This, in theory, prevents an individual member from distancing themselves from any Cabinet decision. This is supposed to maintain Cabinet solidarity, help Cabinet maintain a united front to the national legislature and the public and maintain a coherent and stable government. The rationale for full Cabinet secrecy, on the other hand, has always been something of an enigma to me.
The convention of collective accountability originated in the 18th century in the Westminster constitutional order. South Africa transported into its pre-1994 constitutions the concepts of collective Cabinet accountability and Cabinet secrecy.
Since 1994, South Africa has departed from the Westminster system, but it has retained the principle of collective Cabinet accountability. As a practice, Cabinet secrecy has been retained too. The issue has seldom been directly confronted in our jurisprudence — but there do seem to be signs of judicial support for Cabinet secrecy. In Suzman, Acting Justice (as he then was) Jody Kollapen in a dissenting judgment had the following to say about Cabinet secrecy:
“There can hardly be an area of decision-making that has greater impact on the lives of citizens than the deliberations of Cabinet. While the requirements of openness dictate that those decisions and the reasons for them be made public, they do not extend to what may be termed Cabinet deliberations that precede a decision. The need for private deliberations of Cabinet was expressed in this Court’s decision in Sarfu, where this Court acknowledged the need for Cabinet deliberations to take place in a ‘robust’ and ‘unhindered’ manner […]. Again, the requirements of openness and transparency do not extend as far as requiring Cabinet deliberations to be ordinarily subject to disclosure. This is largely consistent with ensuring efficacy in government and in striking the appropriate balance between openness and confidentiality.”
Respectfully, I share neither Judge Kollapen’s optimism nor logic. The requirement of openness referenced in the dissent does not exist in a vacuum. It serves a very distinct purpose. It demands that transparency operates in such a way that corruption and malfeasance can be detected and halted through effective, timely oversight.
Against this context, it seems to me to be irrational to exclude Cabinet deliberations from disclosure. Cabinet deliberations, reports and minutes should be disclosed immediately to allow for timely effective oversight.
The only exceptions should be matters involving national security. Names and identifying factors of ministers can be redacted so that ministers cannot be singled out.
And there is no reason to think that such an approach will in any way affect collective Cabinet accountability. It is also perhaps apposite to point out our Constitution provides for collective Cabinet accountability — not Cabinet secrecy. So what, precisely, is our justification for allowing the continuation of this practice?
Cabinet secrecy as it exists in South Africa today is unsustainable. It cannot work in a society riddled with corruption at the highest levels of power. It strikes me as perverse to argue that Cabinet secrecy flowing from collective accountability somehow maintains a coherent and stable government.
Secrecy, when coupled with an administration plagued by corruption, does not maintain a coherent government. It destroys democracies. DM
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Very interesting reading. And so true. I am often at a loss as to how South Africans tolerate this secrecy. It’s so telling that it’s ANC policy that the sitting president never gives interviews. Why on earth not? The arrogance is breathtaking. To get back to the point, how do go about ensuring that an reassessment of this approach is taken and done so seriously?
Far more breathtaking for me is that he is the democratically elected president of the country. Democracy is clearly not guaranteed to produce positive outcomes.
Cabinet, anc, government are nothing but a cabal of self-serving, corrupt, criminal, thieving and treasonous parasites who only look after themselves, their elite and cadres and who are bleeding this country dry. Their arrogance knows no bounds and one can only hope and pray that this vermin is no more after the elections.
How on earth does the author expect the deployees of the glorious liberation movement to pump the gravy as efficiently as they do without a dash of secrecy?
A lovely opportunity lost to talk about a ‘Ghordian’ knot!
You present a cogent and compelling argument. What you haven’t commented upon is how your proposal stands up to international best-practice. Assuming this coming election will be a watershed moment, will ANY political party endorse the idea of less cabinet secrecy, is the crucial election question?
I disagree. I speak with some knowledge on the matter – I spent 21 years in business, including strategy and management, before being called to the bar 21 years ago. While I abhor the cronyism, incompetence and corruption, an essential component of effective governance, leadership and management is “confidentiality in deliberation”. If cabinet members, board members or executive suite managers (or equivalent) know that their deliberations are going to be scrutinised publicly shortly after the conference or meeting, they are not going to explore topics and consider options thoroughly for fear of criticism or worse, ridicule. They will be restrained in what they say and do. Most western democracies place restrictions e.g. they do not make cabinet papers available for decades and sometimes longer for sensitive and security matters.
The ANC is as crooked as any government could possibly be so the idea that they are hiding the details of the sale of a state asset for legitimate reasons is implausible. It’s a very safe bet that what comes out eventually will show their dealings to have been as dodgy as usual and the cost to the fiscus enormous.
We all seem to forget the ANC learned the art of governance while in exile in the USSR and China. Clearly expecting the Comrades in the Cabinet to respect democracy is expecting the leopard to change its spots.
The secrecy of Cabinet minutes is vital. Ministers must be able to toss around ideas in confidence. It’s like a family discussion, and few of us would want our words at home to be made public.