According to legend, the Roman emperor Caligula decided to appoint his horse, a magnificent Spanish stallion called Incitatus, as proconsul during a particularly trying time around the dawn of the Christian era.
A peek at the history.com website is revealing. It seems that “many scholars reject the notion that Caligula terrorised Rome with his unbridled madness, arguing that his fellow law-makers would likely have whisked him out of power for such conduct. So while Caligula might have had an unusual fondness for his horse, it’s unlikely the emperor went so far as to appoint the stallion.”
But what if Caligula actually did plot to create Rome’s first equine official? According to historian Aloys Winterling, author of Caligula: “A Biography”, insanity is not the only logical explanation for such behaviour. Winterling makes the case that many of the emperor’s wackier stunts, including his treatment of Incitatus, were designed to insult and humiliate senators and other elites. Whether or not the decision of Cyril Ramaphosa to include disgraced former minister in the Zuma presidency, Dina Pule, in his cabinet falls into the latter category remains to be seen.
The law has come a long way since the days of Caligula. Even though our law remains of Roman-Dutch origin, we have a thirty-year-old supreme Constitution that entrenches the rule of law and constrains all in positions of power, including the president. The president has sworn an oath of office that obliges him to “obey, observe, uphold and maintain the Constitution”.
The Constitution records the supremacy of the rule of law in SA. The rule of law, in turn, requires that decision-making be rational. An irrational decision can be set aside on review by the court having jurisdiction.
The National Cabinet is appointed by the president, and its members serve at his pleasure. The president hires and fires ministers at will; he has the discretion to appoint whomsoever he pleases. If his choices do not appeal to the electorate, the remedy is to vote his party out of power. If his choices do not please his party, then it may, according to the traditions of the ANC, recall him and replace him with another president elected by the National Assembly sitting as an electoral college under the chairmanship of the chief justice or another judge delegated by him.
All Cabinet members are bound by a code of ethics. They may not undertake any other paid work, act in a manner inconsistent with their office, become involved in conflicts of interest or use their position for improper benefit. The burning question that arises in relation to the exercise of the presidential discretion to appoint the Cabinet is whether the discretion is constrained in any way. Does the president have the power, in other words, to appoint a horse or any part of a horse’s anatomy as a member of his Cabinet?
Rule of law
The answer is a resounding “no!” If the rule of law — and its supremacy in our constitutional dispensation — means anything, it means that the doctrine of legality applies to the decision-making required for appointing Cabinet ministers. This means that the decisions so taken need to be rational. An irrational decision would be invalid, because it would amount to conduct inconsistent with the Constitution. The Constitutional Court has exclusive jurisdiction to entertain any attack on the president’s decision-making in his selection of cabinet ministers.
The Secretary General of the ANC, Fikile Mbalula, has predictably defended the appointment of Pule. He seems to think that Pule deserves a second chance in cabinet. The portfolio allocated to Pule by Ramaphosa, the Department of Social Development, is responsible for the timeous payment of SASSA grants to the poor of the nation who qualify for the largesse of the taxpayers via the social security system.
Pule’s “second chance” might notionally be justified in a portfolio in which the budget does not run into billions of rands due for payment to the poorest of the poor every month. The portfolio Ramaphosa has allocated to Pule is the last one suitable for a miscreant whose lack of respect for the public purse has been demonstrated ‘in spades’, in the report of the Public Protector. This led to her dismissal by then president, Jacob Zuma.
Putting the welfare of millions of SASSA grant recipients in her hands is insanely risky. This is all the more so, given the track record of her immediate predecessor, and also that of an earlier incumbent, Bathabile Dlamini, who sports a criminal conviction for the mischief she perpetrated and lied about on oath, while she was the relevant minister. The president could learn from the mistakes made in the past in relation to exercise of presidential power.
The leaders of the Black Sash, which litigated bravely against the worst excesses of the Dlamini era, must be girding their loins for a repeat of the litigation needed to exact accountability from the Department of Social Development on Dlamini’s watch.
There is a shortcut to accountability in this instance.
“Smallanyana skeletons”
Everyone had forgotten the “smallanyana skeletons” accumulated by Dlamini, going all the way back to her ignominious role in the Travelgate scandal. Thanks to vigilant members of the media, no one has forgotten Pule’s grossly expensive red shoes and the misappropriation of public funds perpetrated by her. That self-deprecating “lowly newspaperman”, Mondli Makhanya has eloquently put Pule in her place in his contribution to the DM 168 for the first weekend of July 2026.
The decision to appoint Pule to cabinet is vulnerable to a rationality review which can be made by applying directly to the Constitutional Court, because it involves deciding whether the president has failed to fulfil his constitutional obligations in appointing Pule to his cabinet.
Would the decision of the president amount to conduct of the kind that passes the test of rationality? If it does not, a declaration of its invalidity is available to any public-interest litigant who feels outraged by the decision and is sufficiently concerned to impugn the conduct involved in the decision-making process.
The beauty of the supremacy of the Constitution and the rule of law is that, taken together, they constrain politicians and public servants to the standards set both in the detailed provisions of the Constitution itself and those set by the rule of law.
The fate of Menzi Simelane, the first national director of public prosecutions to be appointed by President Jacob Zuma, is illustrative of the point. While Simelane had no criminal record, his probity and credibility had been the object of adverse findings in the report of the Ginwala Commission of Inquiry into the fitness for office of Vusi Pikoli, a dismissed predecessor to Simelane. This is how the Constitutional Court viewed the situation when it unanimously concurred in the earlier decision of the Supreme Court of Appeal: “The minister and Mr Simelane accept that the ‘executive’ is ‘constrained by the principle that [it] may exercise no power and perform no function beyond that conferred … by law’ and that the power must not be misconstrued. It is also accepted that the decision must be rationally related to the purpose for which the power was conferred.”
“Not rationally related”
With reference to what emerged in the Ginwala Commission, the court observed: “The contradictions [in his evidence] reflect on Mr Simelane’s credibility, integrity and conscientiousness. They were and remain material. Any decision by any person aware of this evidence to ignore it in the decision-making process involving Mr Simelane’s credibility would have been, on the face of it and in the absence of any explanation from that person, not rationally related to the purpose for which the power was conferred….
“The records of the Ginwala Commission were, and remain, highly relevant to Mr Simelane’s credibility, honesty, integrity and conscientiousness. The minister’s advice to the president to ignore these matters and to appoint Mr Simelane without more was unfortunate. The material was relevant. The president’s decision to ignore it was of a kind that coloured the rationality of the entire process and thus rendered the ultimate decision irrational.”
The upshot was that Simelane was relieved of his position by the decisions of the two highest courts in the land.
In Pule’s case, the adverse findings against her both by the Public Protector and by the parliamentary ethics committee show that she does not have the probity and integrity required of a minister in the national cabinet entrusted with the administration of SASSA grants by her department of state. When the then chair of the ethics committee, the late Ben Turok, was asked whether Pule had been jailed for her wrongdoing, he indicated that the ANC had decided that she had “suffered enough”. This does not mean that the criminal justice system could not be engaged to act on her excesses that led to her unlikely dismissal by Zuma.
A rationality review beckons, unless the president reconsiders his decision to appoint Pule: a decision that does not appear to pass the test of rationality quoted above from the Constitutional Court decision in the Simelane case.
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The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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