Hlengiwe Mkhize may have acted outside her powers in removing her director general
Directors general of government departments work for the president, not ministers, the high court in Pretoria heard on Tuesday. That means only President Jacob Zuma can suspend or remove directors general — a power he has not validly delegated to the members of his Cabinet.
And that makes for a different kind of relationship than some ministers seem to expect.
“The director general is not the private secretary of the minister,” advocate Tembeka Ngcukaitobi told the court on behalf of suspended home affairs director general Mkuseli Apleni, when asked whether the court should be worried about a breakdown of trust between minister and director general.
Apleni is challenging his suspension from the job he has held for seven years. He was suspended by then home affairs minister Hlengiwe Mkhize less than six months after she took over the portfolio.
Mkhize said Apleni would not follow orders, made her look bad and was fomenting mutiny against her.
Apleni’s challenge seeking to set aside his suspension may yet become moot. Even as his legal team was arguing their case, news broke that Mkhize had been appointed minister of higher education and training, and former communications minister Ayanda Dlodlo was appointed home affairs minister.
Apleni passed around a cellphone to show the courtroom the news, but neither his legal team nor those acting for Mkhize or Zuma brought the announcement up formally. That was left to Judge Hans Fabricius.
“The new minister may want to uplift the suspension,” Fabricius told the assembled advocates, stressing that he did not want to speculate but also did not want to adjudicate a dispute that could simply evaporate.
They had no way to reach Dlodlo, said the legal team, which was working for Mkhize in her official capacity, and so could only proceed as they had been briefed.
If Dlodlo does want Apleni back, other directors general may well hope she does not announce as much before Fabricius delivers judgment, which he reserved on Tuesday but promised “soon”.
During the 100 months of Zuma’s administration, national departments have each had, on average, 4.5 different directors general, a study from the South African Institute of Race Relations found in August.
Although ministers such as Mkhize may purport to discipline the directors general they believe work for them, they have no such power, Apleni’s lead counsel William Mokhari told the court.
Former president Thabo Mbeki had supposedly delegated that power to his Cabinet in 1999, Mokhari argued, but even if that were the case, such a delegation would no longer be valid.
The implication of Mokhari’s argument is that Zuma — and future presidents — will either have to discipline directors general directly or properly bestow that power on Cabinet ministers, who will then have near-complete control over departments unless and until they are removed.
Suspended director general of rural development and land reform Mduduzi Shabane tried to make a similar argument before Fabricius earlier this year when he sought to halt disciplinary proceedings against him. That matter was struck off as not urgent.
Shabane was suspended after the Sunday Times reported that the land affairs minister, Gugile Nkwinti, had — according to a draft investigative report — received R2-million for facilitating a government deal for friends.
Apleni told Fabricius the risk of home affairs, in his absence, making irregular payments running to hundreds of millions of rand made his case urgent.
Yet in law an applicant has to show a personal requirement for urgency, countered advocate Garth Hulley, counsel for Mkhize. Apleni’s claim that he is needed to protect the public purse is “not grounds for urgency”.
Advocate Vuyani Ngalwana, acting for Zuma, told the court that presidential power to discipline directors general had been delegated to ministers in a fashion “akin to an administrative decision” rather than as an act of executive power, so it did not have the same requirements.
Hulley, meanwhile, argued that Mkhize had made serious allegations against Apleni, and was entitled to suspend him to avoid his interference while she investigated those allegations.
Mkhize’s fears of interference had already been proven well founded because Apleni had cited, in his court bid, events that took place after his suspension.
“The very thing he was told not to do,” said Hulley of the post-suspension evidence Apleni had submitted. “He’s interfering, he’s already gathering information.”
Apleni made me look incompetent – Mkhize
In an affidavit before the high court Hlengiwe Mkhize, until Tuesday the minister of home affairs, said she was regularly embarrassed in Cabinet meetings and put in positions “that rendered my competence as a member of Cabinet questionable”.
Mkhize said she was “made to appear incompetent and lack[ing] proper leadership and control of my department”.
Mkhize made the statements to explain her suspension of home affairs director general Mkuseli Apleni, who she said had deliberately tried to “project me as an incompetent minister in the eyes of the president”.
By her account Apleni succeeded in those efforts. Nonetheless, even as her legal team was on Tuesday arguing against Apleni’s challenge to his suspension, Zuma announced that Mkhize would be in political control of the fractious tertiary education space.
In his own papers Apleni countered that, if Mkhize went to Cabinet meetings improperly prepared, it had been because she had missed meetings geared to brief her — attending only two out of seven such meetings in the six months before his suspension.
Apleni also said that Mkhize seemed intent on bullying junior staff into making unlawful payments to tender recipients.
Mkhize said it was “unfounded and malicious” to say that she had met privately with mogul Nicky Oppenheimer about his plans for Fireblade — a private airport terminal at OR Tambo International Airport in Johannesburg.
Court records contain a thank-you letter from Oppenheimer for such a meeting.
Mkhize also dismissed what she characterised as an attempt by Apleni to create the appearance that her son was using their relationship to settle a R1-million claim against the home affairs department by the Atlantis Corporate Travel agency.
Her son is not a shareholder or senior official of Atlantis, Mkhize said, but had only “been mentored on business development, on a casual basis at Atlantis Corporate Travel, with compensation of an internship”.
The court record has an email from her son identifying himself as Atlantis’s business development manager. In the email Mkhize’s son explains that he had brought the claim to her attention but would rather not keep bothering her with it.