On good governance and constitutionalism

The Constitution
The Constitution

What is just in the public eye is what is in their interest. The public interest must prevail. As a constitutional country, public participation is the cornerstone of governance by the people. Therefore, public policy must be in the interest of the public and, as such, is a measure of good governance and constitutionalism. Public office bearers, such as those in the legislature, act as representatives of the people and are bound to always act for the benefit of those people.

The Constitution provides that, in governing, people’s needs must be responded to and they must be encouraged to participate in policymaking.

Members of the Cabinet account to Parliament and must provide it with full and regular reports concerning matters under their control.

The cardinal question is whether, in exercising power, Cabinet members – in this instance ministers – do so in the public interest and through public participation, or whether they do so arbitrarily.

Hopefully, a new dawn will yield better consideration of the public interest. Police Minister Bheki Cele has to be applauded for his visits to provinces to ensure the readiness of the police service for the festive season. During the process, Cele consulted with communities about their challenges related to crime, creating safer communities and general services rendered by the police. His visits reflect the desire to know and respond to public needs and cement their interests. When accounting to Parliament, he should report on those visits and the plan of action towards a safer society.

While exercising power in the public interest, a minister must guard against abuse thereof. As shareholders or persons responsible for administering the legislation of their respective public bodies, ministers have an intrinsic oversight role to establish whether those bodies perform their work as prescribed in the Constitution and that they have the resources to do so.

While dealing with boards of directors of public companies, a minister must impartially ensure that the interests of the company are protected to allow it to function efficiently and without undue influence. This means that a minister must not interfere with the independence of the board or unlawfully inhibit it from performing its functions.

However, this does not mean that ministers must fold their arms in favour of the interests of the company but to the detriment of those of the public; the two should be consistent with each other.

Read: No land grabs. Investments will be safe - Cyril allays section 25

The centrality of public benefit is also observed under section 25 of the Constitution, which provides that property (land) can be expropriated only in the public interest.

An amendment of the Constitution to expropriate land without compensation must be done for public purposes, not for any other reason.

Similarly, intervention by a minister as a shareholder in a public company must be to the advantage of the public. The relevant ministers must, when providing Parliament with regular reports about matters under their control, give an account of governance of these entities by their boards, and their general performance, success and challenges. Ministers must explain what action they took to address the challenges and advance the interests of the public, and whether such action interfered with the independence of the entity or board.

Recent reports detailed bailouts of ailing public companies such as SAA, Eskom, the SABC and the SA Post Office. These entities have been governed by purportedly competent and qualified boards and management, but failed to sustain themselves.

Some of the new boards, such as that of the SABC, attempted to rehabilitate these entities by planning to retrench personnel. It is the responsibility of a minister to support the entity and, where applicable, secure a bailout and develop a viable rehabilitation strategy on how to sustain it and act in the public interest.

These responsibilities also apply to chapter 9 institutions such as the commissions for public service, gender equality and human rights. The ministers who oversee these bodies have a duty to monitor whether the legislation is properly implemented by members of the commission and that the resources are used for the public purpose for which they have been established and allocated.

When a board or commission acts contrary to their mandate or obligations, the relevant minister must intervene but not usurp the responsibilities of the board. Failure to intervene is synonymous with dereliction of duty.

What is just in the public eye must prevail. Let us hope that justice is coming!

Sedupane is an advocate of the high court

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July 2020

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