Unveiling The Power Behind The Throne: Who Are The Special Advisers?

In the past, government has been lambasted for appointing Ministers that have no higher education qualifications or training relating to the portfolios they supervise. More disturbingly, persons advising high-ranking government officials, who should logically possess some expertise in order to render such advice, have also been appointed despite lacking the necessary skills. This state of affairs has been made possible by a lack of disclosure surrounding the identity of special advisers. After setting out the framework regulating the appointment and remuneration of special advisers, this brief considers the difficulties faced by the Helen Suzman Foundation (HSF) when we attempted to obtain information on special advisers from the executive authorities.

The Need For Special Advisers And The Legal Framework

In exercising their powers, the executive branch of the state engages in a host of functions for which they may require additional information, expertise and counsel. As such, section 12A of the Public Service Act[i] read with the Dispensation governing special advisers (the Dispensation)[ii] provides that certain members of the executive (the President, Deputy President, Ministers, and Premiers[iii]) may appoint persons to advise them on the exercise or performance of their powers and duties or on the development of policy that will promote the relevant department's objectives.[iv]

While the President and Deputy President may appoint as many Special Advisers as they see fit, each Minister and Premier is allowed to appoint 2 full time special advisers, with the option of requesting up to two more full time advisers if Cabinet or the relevant Provincial Executive Council approves this.[v] Special Advisers may also be appointed on a part-time basis (that is, less than 40 hours of work a week), but unlike full-time Advisers, the Dispensation does not provide a limit of how many may be appointed. However, a 2019 circular by the Minister for the Public Service and Administration stated that ‘an executive authority may appoint up to four part-time special advisers instead of two full-time special advisers.’ [vi]

The appointment of Special Advisers is solely within the discretion of the relevant executive authority which appoints him/her.[vii] The Dispensation merely provides that a special adviser must be a South African citizen and subjected to a security clearance;[viii] and that a special adviser may not serve on statutory boards, councils, or similar bodies for which the relevant executive authority is accountable.[ix]The executive authority must submit their recommendation for the appointment of a special adviser to the Minister for the Public Service and Administration to approve the individual’s compensation level.[x]

The Dispensation also provides that the duration of the contract must be agreed upon but is limited to the term of the political principal.[xi] Finally, the Dispensation sets out four compensation levels that may be applied to special advisers, which is based on their qualifications and the complexity of advice they will provide, and can range anywhere from R1 057 326 to R2 228 820 per adviser per annum. Leaving aside the unlimited number of special advisers that the President and Deputy President may appoint, if every Minister (of the 2019- 2021 Cabinet) and Premier took full advantage of the legal framework in terms of the number of special advisers that they may appoint (2 full-time advisers), at the maximum compensation level allowed (R2 228 820), it could have cost taxpayers as much as R164 932 680 per year![xii]

The Need To Know Their Identities

Although the appointment of special advisers is not mandatory, it is indisputable that they may play a valuable role in ensuring that an executive authority is well-informed and receives expert advice. Since their advice may materially influence the decisions taken by executive authorities, it is crucial to ensure that the persons who have the ear of government are properly qualified. Unfortunately, this has not always been the reality. Earlier this year, former Minister of Mineral Resources, Mosebenzi Joseph Zwane, admitted that he had appointed two special advisers ‘without any knowledge of what they were doing for a living’, or even if they were qualified for the position.[xiii] Similarly, in 2020, it emerged that the Minister of Human Settlements and Water and Sanitation, Lindiwe Sisulu, had appointed Menzi Simelane and Mo Shaik as special advisers, despite their alleged embroilment in state capture, and the fact that Shaik’s qualification was in optometry and had nothing to do with the provision of water or sanitation services. [xiv]These occurrences are probably not aberrations and may be repeated, since the identity of special advisers is generally and senselessly shrouded in secrecy. In order to prevent cadre deployment, nepotism, and the appointment of unqualified individuals as special advisers, it is vital that the identities of such persons be publicised to enable others to assess their suitability for the position.

How Do We Currently Find Out?

Currently, the appointment and identity of special advisers comes to light if Members of Parliament (MPs) pose a question in the National Assembly to a specific Minister enquiring if any special advisers have been appointed, and who they are.[xv] At other times, media reports may mention in passing a quote on a matter from a special adviser of a Member of the Executive.[xvi] Dissatisfied with this state of affairs, and

believing that there should be high levels of transparency and accountability in the appointment and remuneration of special advisers since public monies are involved in paying the salaries of these persons, the HSF reached out to each Ministry and Office of the Premier to enquire:

• how many special advisers are appointed,
• who the special advisers are,
• the date at which the advisers were appointed,
• whether they act in full-time or part time capacity,
• the duration of the employment contract,
• and how their remuneration level is established in relation to the work they do and any public-sector commission guideline.

Unfortunately, the responses were less than optimal. Despite the original enquiry from the HSF being made on 21 April 2021, and again in May and July 2021, only the President, Deputy President, and a dismal seven Ministers and three Premiers had responded by the date of this publication. In the interim, president Ramaphosa shuffled his Cabinet,[xvii] rendering some of the answers useless, since the contracts of special advisers are tied to the term of office of the Minister who appoints him or her. We have not yet begun the arduous process of requesting information from the new Ministers, because it will likely be a while before they appoint their own special advisers, and we cannot wait another four months for seven answers. Rather, we include the answers of the Ministers that were in place before the Cabinet reshuffle of 5 August 2021, to illustrate the problems we experienced in extracting this simple information from them.

What Did We Learn?

Some Departments and Premiers’ Offices responded efficiently and without reluctance, and admirably, the Office of the Premier in Mpumalanga has listed their special advisers on their website.[xviii] However, fourteen executive authorities completely failed to respond,[xix] and five executive authorities said they would respond but did not, despite being reminded to do so.[xx]

Of those who did respond to our enquiry, some left the questions half-answered, and there seemed to be a general reluctance to disclose what remuneration level was applied to special advisers. This reticence has also been demonstrated to MPs who enquired about remuneration packages of special advisers.[xxi]

Some responded that a Promotion of Access to Information Act (PAIA) form had to be completed before the enquiry could be processed, along with a payment of R35.[xxii] Though the fee is negligible, it is strange that some Departments did not require a PAIA application.

Six Departments maintained that the information should be requested from the DPSA.[xxiii] When the DPSA was approached, we were initially told that information on appointments in all areas of the public service was available on the DPSA’s website. After an attempt to search through the website, we requested to be pointed to where exactly on the website such information existed. We were then told that the relevant Departments should provide the information on special advisers, and that only the names of the special advisers of the Minister for the Public Service and Administration could be provided. This response was forwarded to the Departments who had asked that we approach the DPSA, but none provided any response.

On the administrative end, it is worth noting that many of the government contact details listed on the various websites were invalid, with many emails bouncing. Some government websites simply do not work.[xxiv] Many Departments, and the DPSA itself, seemed to think that the information could be obtained on the DPSA website. If this is so, it is unclear where in the mass of documents on that website this information resides. Further, if this was indeed the case, there would be no need for MPs to ask internal questions in the National Assembly regarding the identity of special advisers.

Conclusion And Recommendations

The answers from the Departments and Premiers’ Offices reflect a lack of consistency in the way they disclose who they employ. Some require a PAIA application and payment in support of the application, some deflect to other Ministries, and many could not be bothered to respond. The ones that are upfront and respond timeously should be lauded, and should serve as an example to the rest. Rather than relying on MPs, sifting through news articles, or approaching each executive authority individually, there must be transparency about the identity of special advisers. This will allow interested parties to interrogate whether the special advisers have appropriate qualifications, are not being overpaid, and that taxpayer money is not being wasted. We would therefore urge that, at the very least, the identity of each special adviser should be published on the websites of the respective authorities. It may also be helpful to keep a collated record of the special advisers and publish it on the government website or the DPSA website in a clearly identifiable manner.

Special Advisers of the Executive Authority (2019-2021 Cabinet)

[xiv] Jan Gerber “Sisulu appoints Menzi Simelane and Mo Shaik as special advisers” News24 (17 January 2021), available here.

[xv]As an example, see Question NW2180 to the Minister of Social Development, available here.

[xvi]As an example, see Business Tech “Special advisor to the president answers 6 burning questions about the new NHI in South Africa” (22 August 2019), available here.

[xvii] eNCA “Summary: Ramaphosa names new ministers in Cabinet reshuffle” (6 August 2021), available here.

[xviii] Office of the Premier: Mpumalanga website, available here.

[xix]Minister of Defence and Military Veterans; Minister of Human Settlements, Water and Sanitation; Minister of International Relations and Cooperation; Minister in the Presidency for Women, Youth and Persons with Disabilities; Minister of Public Enterprises; Minister of Social Development; Minister of Police; Minister of State Security; Minister of Sport, Arts and Culture; Minister of Trade and Industry; Premier of Gauteng; Premier of Limpopo; Premier of North West; Premier of Northern Cape

[xx] Minister of Health; Minister of Mineral Resources and Energy; Minister of Public Works and Infrastructure; Minister of Transport; Premier of KZN