Dismissing the DA plea to declare the ANC’s cadre deployment policy unconstitutional, Pretoria’s high court lashed out at the official opposition party for coming to court with a case “built on speculation and conjecture”.
In the 40-page judgment, Gauteng High Court deputy judge-president Aubrey Phago Ledwaba said that the ANC, like any other political party, “is entitled to influence government decisions, including the appointment of senior staff to public administration, as long as the bright line between state and party is observed”.
“It goes without saying that influencing government decisions is not the same as political meddling in the affairs of government,” said the judge.
The full bench upheld the respondents’ defence that there was no “properly pleaded constitutional attack”.
The respondents included the ANC, ANC deputy president Paul Mashatile, ANC deployment committee, President Cyril Ramaphosa, SA government, and public service & administration minister Noxolo Kiviet.
“We agree that there is no valid constitutional attack on chapter IV of the Public Service Act (PSA). The DA makes no case as to why a policy of a voluntary association must comply with the PSA,” the judge said.
“It does not even make a case to demonstrate that the government is bound to comply with the policy when making senior appointments to public service. It lays no factual predicate to demonstrate the infringement of the sections of the PSA.”
The judgment was scathing on the DA’s conduct.
“The DA came to court with a case built on speculation and conjecture. Corruption knows no boundaries. It inflicts grave harm to society. For that reason, it ought not to be used by political parties to pursue political objectives ... the application is dismissed with costs.”
The judgment, which DA leader John Steenhuisen described as disappointing, follows the DA’s victory last week in the Constitutional Court, which ordered the governing party to hand over its cadre deployment records to the DA. The ANC complied with the apex court’s order on Monday.
Briefing journalists after the judgment, Steenhuisen said: “What we’ll be doing is appealing this judgment. Our legal team is busy as we speak, digesting the judgment, but we will appeal it to the SCA [Supreme Court of Appeal] and potentially directly to the Constitutional Court.”
Steenhuisen said if cadre deployment were continued and supported in its present form, “it will continue to undermine the state and it will continue to cause great harm to the SA people and their prospects for the future”.
The ANC’s head of legal, Billy Malatji, told Business Day: “This application by the DA was a leap of faith to use the court system to score cheap political points and it failed spectacularly.”
Steenhuisen said that as a party that respects the rule of law and the constitution, “we respect the judgment”.
“However, we do believe that a number of errors in law and in interpretation have been made in this particular judgment.
“Particularly at section 40 (d) of the judgment, where the court refers to what they call a ‘bright line between state and party that is observed. [It reads:] It goes without saying that influencing a government decision is not the same as political meddling in the affairs of government’.”
Steenhuisen stressed: “We believe this is a significant underestimation of the scourge of cadre deployment and its terrible effects on SA life, the circumstance of which many of us, the citizens, find ourselves today. It also flies in the face of comments made by then deputy chief justice Raymond Zondo at the Zondo commission, who said that it should be illegal for anybody to influence the appointments of people based on nothing other than their party affiliation.”
In the final part of the state-capture commission report released in June 2022, Zondo declared the policy unconstitutional and illegal.
The opposition party said cadre deployment was responsible for the appointments of former heads of public entities such as former SA Revenue Service head Tom Moyane, former Transnet and Eskom executives Brian Molefe and Anoj Singh, and former Prasa CEO Lucky Montana, who are all accused of facilitating state capture.
The DA maintains that through the policy the ANC illegally interferes in the appointment processes to ensure its cadres are appointed on the basis of their loyalty to the governing party, rather than merit and skill.
The policy, which the DA wants replaced with merit-based appointments throughout the public sector, has been used by the ANC to help fast-track transformation and to better implement its policies in government. However, it has been blamed for a series of service delivery failures.
In a recent interview with Newzroom Afrika, public protector Kholeka Gcaleka said: “The manner in which recruitment is being done in state affairs, whether it’s in boards, whether it is in the main administration of CEOs, HODs [heads of departments], DGs [directors-general], there are discrepancies and also in other levels of employment in the state institutions.”
However, ANC secretary-general Fikile Mbalula said the ruling was “a win for political party autonomy and ensures that public institutions are staffed by those who align with the ruling party’s policies and goals”.
The DA leader maintained that the practice of cadre deployment is a “violation of constitutional provisions which say nobody should be discriminated [against] or advanced on the basis of their party affiliation”.
“We believe too that the recently released cadre deployment minutes, which are now in our possession and which we are busy collating, compiling, and putting into a searchable database, flies in the face of the court’s so-called suggestion of a bright line between the state and party,” said Steenhuisen.
“Every time the lights go off, every time a factory is shut down, every time that water stops running in taps, every time that one of the state-owned entities fails to fulfil its responsibility and requires another big bailout, it is as a result of cadre deployment.”
Update: February 21 2024
This article has been updated with new information throughout.
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