Appointment of the acting minister Cachalia: A matter of presidential authority and constitutional compliance

President Cyril Ramaphosa's appointment of Professor Firoz Cachalia as Acting Minister of Police, following the placement of Senzo Mchunu on special leave, presents a significant constitutional law question that warrants careful examination.

The central issue is whether the President's action complies with the constitutional framework governing ministerial appointments, particularly the distinction between regular ministerial appointments and the delegation of ministerial functions.

Section 91(3)(c) of the Constitution provides the President with the authority to "select no more than two Ministers from outside the National Assembly." This provision establishes a clear numerical limitation and procedural requirement for appointing individuals who are not Members of Parliament to ministerial positions.

Section 98 states: "The President may assign to a Minister any power or function of another Minister who is absent or otherwise unable to fulfil the functions of office." This section contemplates the temporary reallocation of ministerial responsibilities between existing Ministers.

The constitutional analysis reveals a potential lacuna in the framework. Section 91(3)(c) makes no express provision for "Acting Ministers" - it only addresses substantive ministerial appointments. Section 98, conversely, only permits the assignment of functions to existing Ministers, not to individuals outside the cabinet structure.

Professor Cachalia's appointment presents several constitutional challenges:

1. Absence of Constitutional Authority: There is no explicit constitutional provision authorising the appointment of an "Acting Minister" who is not already a substantive Minister.
2. Misapplication of Section 98: The section requires the assignment of functions to "a Minister" - a constitutional office that Cachalia does not hold.
3. Circumvention of Section 91(3)(c): The appointment appears to bypass the formal requirements for appointing Ministers from outside the National Assembly.

The constitutional concern is compounded by an institutional presumption of legality. The legal fraternity's assumption that presidential decisions are inherently constitutional represents a classic appeal to authority fallacy. Constitutional supremacy requires that all exercises of public power, including presidential appointments, conform to constitutional requirements regardless of the office holder's status.

The appointment raises broader questions about the separation of powers and the rule of law. If the President can effectively create ministerial positions without following constitutional procedures, it undermines the constitutional framework designed to limit and structure executive power.

For the appointment to achieve constitutional compliance, the following procedure should be followed:

1. Formal Ministerial Appointment: Cachalia should be appointed as a Minister under Section 91(3)(c), either to an existing portfolio or to a specifically created ministry.
2. Function Assignment: Once properly appointed as a Minister, the President could then assign him the functions and duties of the Police Ministry under Section 98.

Allowing this appointment to stand without a proper constitutional foundation could create a problematic precedent, potentially enabling future presidents to circumvent constitutional limitations on ministerial appointments through the device of "Acting" positions.

Most constitutional democracies with similar Westminster-derived systems maintain strict distinctions between substantive and acting appointments, typically requiring either explicit constitutional authorisation or limiting acting appointments to existing office holders.

The Constitutional Court's emphasis on constitutional supremacy and the rule of law suggests that informal or assumed powers cannot substitute for explicit constitutional authority. The Court's approach in cases involving executive power has consistently emphasised adherence to constitutional procedures.

Immediate Considerations

1. Legal Challenge: The appointment presents grounds for constitutional challenge, particularly regarding the scope of presidential power and constitutional compliance.
2. Parliamentary Oversight: Parliament should exercise its oversight function to examine the constitutional basis for the appointment.
3. Academic Scrutiny: Legal scholars should engage with this issue to clarify the constitutional framework governing ministerial appointments.

Long-term Implications

1. Constitutional Amendment: Consider whether the Constitution requires amendment to provide clear authority for acting ministerial appointments.
2. Judicial Clarity: The courts may need to guide the scope of presidential appointment powers and the requirements for temporary ministerial arrangements.
3. Institutional Safeguards: Develop clearer protocols for ensuring constitutional compliance in executive appointments.

Conclusion

The Cachalia appointment highlights a significant gap between constitutional requirements and executive practice. While the President's intention to ensure continuity in police leadership during a period of crisis is understandable, constitutional compliance cannot be sacrificed for administrative convenience. The legal fraternity must engage with this issue to uphold constitutional supremacy and ensure that all exercises of public power conform to constitutional requirements.

The case serves as a reminder that in a constitutional democracy, even well-intentioned executive actions must comply with constitutional procedures. The assumption that presidential decisions are inherently legal represents a dangerous departure from constitutional principles that could undermine the rule of law if left unchallenged.

This matter requires urgent attention from the legal profession, Parliament, and potentially the courts to ensure that South Africa's constitutional framework is properly implemented and respected.

Anda Mbikwana is a PhD candidate and a municipal finance and leadership in governance expert, he writes in his personal capacity.