Paul Hoffman | Mkhize is in breach of his constitutional obligations

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Health Minister Zweli Mkhize
Health Minister Zweli Mkhize
Darren Stewart, Gallo Images

If Health Minister Zweli Mkhize doesn't resign now, he should be summarily dismissed by the president, writes Paul Hoffman. He says this step will demonstrate the government's commitment to a corruption-free Cabinet and public administration.


President Cyril Ramaphosa has placed Health Minister Zweli Mkhize on special leave while the Special Investigating Unit (SIU) investigates the Digital Vibes tender debacle.

However, the issue at stake is far simpler than many in the ANC and elsewhere may think. Just consider the relevant wording of section 96 of the Constitution:

"Members of the Cabinet may not … act in any way that that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person."

The Constitutional Court has considered this provision in the matter concerning the goings-on at Nkandla, the country seat of the former hero of the minister, Jacob Zuma.

Here is what the chief justice said:

"There is thus a direct connection between the position of president and the reasonably foreseeable ease with which the specified non-security features, asked for or not, were installed at the private residence. This naturally extends to the undue enrichment. Also, the mere fact of the president allowing non-security features, about whose construction he was reportedly aware, to be built at his private residence at government expense, exposed him to a 'situation involving the risk of a conflict between [his] official responsibilities and private interests'. The potential conflict lies here. On the one hand, the president has the duty to ensure that state resources are used only for the advancement of state interests. On the other hand, there is the real risk of him closing an eye to possible wastage, if he is likely to derive personal benefit from indifference. To find oneself on the wrong side of section 96, all that needs to be proven is a risk. It does not even have to materialise."

Zuma's presidency was terminated prematurely, in no small measure due to his cavalier attitude towards his obligations under section 96.

The risks inherent in awarding work to comrades so closely connected to the minister is plain. That the risks have actually materialised is apparent from the grossly inflated charges allowed in terms of the contract concluded and from the acquisition of a second-hand vehicle and home repairs for the minister's son and property-owning family trust, respectively.

Self-enrichment and benefit to ministerial comrades and family have actually taken place, if the work of the investigative journalists, the photos of the vehicle in question and the admissions made in interviews are what they appear to be. Even the compromising photographs of the minister in comradely communion with the leading players in Digital Vibes are damning.

READ | Mcebisi Ndletyana: The stain of Mkhize on Ramaphosa's anti-corruption crusade

The minister is plainly in breach of his constitutional obligations.

These are obligations he swore to uphold when he took his oath of office. His failure to do so impacts not only on him as a constitutional delinquent, his failures also relate to their impact on the reputation of the ANC, a reputation which its integrity committee seeks to guard jealously and in a spirit of revolutionary morality, so aptly addressed by the minister of justice during his Mlangeni memorial lecture on 6 June 2021 on the topic of "Integrity and Revolutionary Ethics".

Indeed, all political parties are obliged to behave with propriety and in accordance with constitutional obligations if they wish to retain the confidence and trust of the electorate whom they serve.

It would appear from the coverage of undenied facts that the tender in question was awarded to Digital Vibes at rates not bearing any relationship to the true value of the work to be done, using persons too close for comfort to the minister and resulting in enrichment of his son and his family trust in ways that clearly constitute improper benefits.

It was reported that Mkhize had requested the special leave, but the fact that the minister seems to think a leave of absence is an appropriate remedial step is evidence of a complete failure of insight, accountability and responsiveness on his part. The notions of accountability and responsiveness are foundational to the type of governance that is contemplated in section 1 of the Constitution.

At best for the minister, the mere risk of a conflict is apparent. That is all that is required for a breach of the section quoted from above. The minister is labouring under the misapprehension that actual conflict must arise. He is wrong.

It is unconscionable that the minister lingers on when it is so plain that he is undermining the reputation of the ANC in addition to being in breach of his constitutional obligations.

Mkhize should resign without delay and before he does any more damage. Anything less is compromising to the reputation of the national Cabinet and of the ANC. If he doesn't resign now, he should be summarily dismissed by the president. This step is indicated, if for no other reason than to demonstrate the government's commitment to a corruption-free Cabinet and public administration.

READ | Ivor Sarakinsky: The Mkhize scandal: What about the officials who drafted the tender?

Any failure to end the incumbency of Mkhize forthwith would amount to evidence of a lack of commitment to constitutional values and to the corruption-free governance for which the public yearns. 

This is a yearning that has long been frustrated. Despite expressions of mounting anger at the culture of impunity that is abroad in the corridors of power in the ANC, even the NEC of the ANC has called for the urgent establishment of a new, single agency and permanent anti-corruption body to deal with the corrupt, using a multi-disciplinary and independent approach.

With the likes of Mkhize in Cabinet, it is a small wonder that the NEC resolution has not been acted on since August 2020. Indeed, it has not been heard of since it was passed, despite its congruence with the binding rulings of the Constitutional Court, which have long been ignored or side-stepped by the ANC leadership.

The loud and clear message of the court deserves urgent attention and implementation.

- Paul Hoffman SC is a director of Accountability Now. His new book, Countering the Corrupt, is available for free download from www.accountabilitynow.org.za

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