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EXECUTIVE AUTHORITY AND THE USE OF GOVERNMENT RESOURCES FOR PRIVATE BENEFIT

Adv Johan Kruger, Director: Centre for Constitutional Rights

The Centre for Constitutional Rights noted with much concern media reports about public resources being utilised for the benefit of close private associates of the President and the ruling party.

According to recent reports, the South African National Defence Force’s (SANDF) Waterkloof Air Force Base and the South African Police Service’s (SAPS) flying squad, counter-assault team and VIP protection unit were utilised for the benefit of wedding guests of the Gupta family. In addition, immigration officials from the Department of Home Affairs (DOHA) were required to assist the private party with clearing immigration.

Apart from the obvious security concerns regarding the “unauthorised” use of an operational air force base just a few kilometres away from the Ministry of Defence and SANDF Headquarters, this matter also involve the possible gross misuse of public resources for private benefit. The incident also begs a further and even more serious question – who is exercising executive authority in South Africa and who is in charge of the security services if nobody claims to be responsible?

According to sections 85 and 86 of the Constitution, the executive authority of the Republic is vested in the President. He exercises the executive authority, together with the other members of the Cabinet, by co-ordinating the functions of state departments and administrations. As such, Ministers are responsible for the powers and functions of the executive assigned to them by the President. In addition, section 96(2) of the Constitution, determines that members of the Cabinet – including the President – and Deputy Ministers may not act in any way 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. They may also, according to the Constitution, not use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.

In this instance the President is silent on how approval was given. Minister in the Presidency, Collins Chabane, did eventually say that action will be taken against anyone who had a role in allowing the privately chartered aircraft to land at Waterkloof Air Force Base. He also said that the now suspended Chief of State Protocol at the Department of International Relations and Cooperation (DIRCO), liaised directly with the Indian High Commission and did not inform any other government officials of the matter. He could, however, not say how or why the SAPS provided support to the Gupta’s guests.

According to SANDF spokesperson Siphiwe Dlamini, “no permission [was] granted to a private citizen to use the base”. Sonwabo Mbananga, spokesman for Minister of Defence, Nosiviwe Mapisa-Nqakula, reiterated that “the minister never authorised such a thing”. The DIRCO, in turn, referred the matter to the SANDF, but has meanwhile suspended its Chief of Protocol, whilst the SAPS referred questions to the Government Communications and Information Service (GCIS). The Department of Home Affairs (DOHA) claimed that as part of its broader mandate, immigration officials had been notified of the inbound flights and had sent the necessary personnel to the airport. It is clearly not necessary to elaborate on the obvious disquiet caused by these statements deprived of facts and reason.

Furthermore, even though the ruling African National Congress (ANC) has called for heads to roll – apparently referring to responsible government officials involved in the incident – they apparently also do not know who made the decision.

Who then authorised landing approval for Waterkloof Air Force Base? Who authorised deployment of SAPS resources and assets and who mobilised the immigration officials from the DOHA to clear the foreign passengers without the South African Revenue Service (SARS) being informed? Who is governing and exercising public powers and functions if nobody claims to know? If it is possible for public service officials to approve the use of state resources in this manner and coordinate such inter-departmental cooperation without the knowledge of their respective political heads, what does it say about effective political control over the powers and functions of these government departments?

Nonetheless, considering the departments and resources involved – the Department of Defence and the SANDF, the SAPS and the DOHA – it is highly unlikely that approval for the unprecedented support by all three departments to private individuals was given at any other level than by the respective Ministers in charge of these departments. Moreover, bearing in mind the coordinated effort, it can probably be assumed that the matter was at least coordinated at Cabinet cluster committee level, if not by the Presidency itself. If this was the case and if the use of public resources, in favour of friends of the President, was approved by members of the Cabinet, heads indeed need to roll. However, according to the Constitution, those heads are supposed to be the heads of those members of the Cabinet, of which the President is the head.