South Africans have become accustomed to interpreting phrases such ‘applying my mind’ to mean anything from a year to an indefinite period. That is thanks, mostly, to the Jacob Zuma administration. Decisions were slow, and often, after waiting for months, there simply were none.
But when President Cyril Ramaphosa described a damning judgement against his Home Affairs minister Malusi Gigaba as “of great concern” and that he is giving it “due and proper consideration” you might have hoped to have an answer by now.
In reality, Gigaba should have already been dismissed by Ramaphosa’s predecessor, as the damning judgement came before ANC delegates descended on Nasrec. But if Zuma failed to act on an SIU report into corruption of billions at the Gauteng Health Department, why would prioritise a court ruling over a dishonest minister?
The judgement came from the high court in Pretoria, two days before the conference got underway.
The matter was between the minister and the Oppenheimer family’s Fireblade Aviation. The company wanted to render exclusive services at the OR Tambo International Airport. The minister, who had initially approved the application, was now challenging it.
In short, Judge Neil Tuchten found Gigaba had granted the Oppenheimer family’s application to run VVIP immigration services at OR Tambo, but then denied having given his approval. Instead he claimed that entry points into the country need to be available to all people, as stipulated in the Immigration Act. “…the Minister sought to have the best of both worlds,” the judgement read.
Tuchten found Gigaba had granted “permission, and for reasons which he does not disclose, then bethought himself of his decision and wished to escape its consequences”.
“By telling a deliberate untruth on facts central to the decision of this case, the Minister has committed a breach of the Constitution so serious that I would characterise it as a violation.”
In March, the Supreme Court of Appeal upheld the previous rulings and added: “The Minister cannot rely on his own unlawful attempt to circumvent the decision he had lawfully made to grant Fireblade’s application.”
At this point the Public Protector’s Office is a month into its investigation into the matter and the president would express his concern days later. But despite this, and the fact that Gigaba’s yet-to-be-confirmed application to the Constitutional Court will apparently not challenge the findings on his personal conduct, no steps have been taken whatsoever.
Tuchten references the Constitution in his judgement – two specific sections. It states that a minister “may not act in any way that is inconsistent with their office” and that “Organs of state… must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.” When Gigaba took office, he participated in that somewhat academic exercise by sticking his right hand in the air and swearing to “obey, respect and uphold the Constitution” and to be “a true and faithful counsellor”.
He was not. And the inaction against him is concerning to say the least given that two of his now former colleagues basically followed Zuma out of Cabinet for their breaches.
The Public Protector report is pointless because courts are situated higher in the legal food chain. Even if the Public Protector concludes otherwise the courts, which have already pronounced on the matter, can simply overturn the findings. That is unless Gigaba has suddenly brought evidence forward which he has previously neglected to share with the court. (But that it turn might again constitute a hindrance of the courts’ effectiveness.)
The decision simply lies with the president. It is a political decision and one that needs urgent attention. Ramaphosa has demonstrated his punctuality at political rallies, meetings and conferences. Perhaps Mr President, consider the same approach to political action.