Can cadre deployment survive the courts?

Does a political party in power have the right to pack the state with loyalists who will implement its policies without question? Can political parties dictate appointments when the constitution already lays out guidelines for those appointments? Is it logical for a political party to want to dictate to the state which individuals are to drive its vision? 

These are some of the questions raised by the DA’s legal battle against cadre deployment, the first part of which is now heading to the Constitutional Court. 

While the legal fight is dismissed by the ANC party faithful as “political hubris”, an outcome in the DA’s favour, it says, could have far-reaching consequences for the ruling party — and any other political party that comes to power in the future.

ANC leaders argue there is nothing sinister about cadre deployment. In fact, they say it’s “Politics 101”; a practice followed across the world from the US to Singapore to China.

And it’s certainly not new for the ANC. Cadre deployment can trace its genesis back to the Kabwe conference of 1985, when then ANC president Oliver Tambo called for the establishment of a political school.

Eleven years on, its first iteration was crafted by the ANC’s former policy guru Joel Netshitenzhe in a document titled “The National Democratic Revolution: Is it Still on track?”. The policy was  deemed essential if the democratic government was to transform the state and society, and prevent those seeking to subvert the new order from doing so from within the state.

But between its implementation in 1999 and its first review after the Polokwane conference in 2007, something went badly wrong. Then it got worse: many argued that the policy had been bastardised under former president Jacob Zuma.

It all came apart when the state capture commission, in its final report, concluded that the policy is, in fact, unconstitutional. And it’s perhaps not insignificant that the chair of that commission, Raymond Zondo, is now South Africa’s chief justice. 

I am actually delighted the ANC is going to the Constitutional Court on the first leg of the case. If the DA is successful, it will entrench transparency far beyond the reach of this case

—  Leon Schreiber

Leon Schreiber, DA spokesperson on public service & administration, readily admits that this will be a gargantuan battle. Still, he is determined to bring to light the machinations of deployment.

His legal strategy is two-pronged: first, to obtain minutes of ANC deployment committee meetings; second, to have the policy as well as the committee itself declared unconstitutional. 

On the first count, the Supreme Court of Appeal last week upheld a high court judgment giving Schreiber access to ANC deployment committee meeting minutes. After that ruling, the ANC indicated it would approach the Constitutional Court to block the DA’s application.

In Schreiber’s view, it’s another attempt to delay the inevitable.

“I am actually delighted the ANC is going to the Constitutional Court on the first leg of the case,” he tells the FM. “If the DA is successful, it will entrench transparency far beyond the reach of this case.”

The second part of Schreiber’s application — to have the policy and the committee itself deemed unconstitutional — was heard by the Pretoria high court in January. Eight months on, the judgment is still pending. 

It’s not that all deployments have been ruinous. In its early days there was the deployment of heavyweights such as Lesetja Kganyago and Lungisa Fuzile to the National Treasury, Frene Ginwala as speaker of parliament, Pravin Gordhan at the South African Revenue Service, and Trevor Manuel as finance minister. 

But it also resulted in disastrous appointments such as Hlaudi Motsoeneng at the SABC and Dudu Myeni at SAA. 

“This is a fundamental point of departure for us. This case is not only forward-looking but backward-looking too. We don’t yet have a full picture of how state capture was possible until we have an idea of how your Hlaudi Motsoeneng was appointed, or Dudu Myeni,” he says.

How did it happen, he asks, that people who were incompetent — or worse, corrupt — were put in positions of power?

“For us, sunlight is the best disinfectant, so we have to have a full picture of how these appointments were made,” he adds. 

The DA has obtained the minutes made available to the state capture commission through a separate application — and those minutes make clear that the deployment process is a formal one, with detailed notes and minutes, says Schreiber. It even recommends appointments to the courts, he says.  

Says Schreiber: “For any political party to subvert the selection process, we argue, is incorrect and should be illegal.” He adds that the ANC’s argument that transformation is at the heart of the rationale behind its policy is incorrect, given that the constitution itself makes provision for transformation in its sections dealing with the public service.

However, ANC insiders disagree that the process is as formal as the DA expects. In fact, at provincial and regional levels, there are never minutes taken during these discussions. “The DA is going to find at the end that no such minutes exist,” one party leader tells the FM. 

People in power appoint people they know. They want like-minded people around them

—  Lawson Naidoo

Lawson Naidoo, executive director of the Council for the Advancement of the Constitution, doesn’t take issue with the policy per se. It’s an international practice, he says — one that far predates the ANC’s 1985 resolution. 

“People in power appoint people they know. They want like-minded people around them,” he tells the FM.

He adds: “In the purest sense, there is nothing intrinsically wrong with the policy itself, but then when you talk about its implementation, that’s where the problems start.” 

In particular, he says, it went wrong in South Africa “when it facilitated patronage and cronyism by providing access to resources”. 

It is also one thing to argue, as did then ANC treasurer Paul Mashatile in court papers, that the policy simply encourages people to apply for certain positions. It’s something entirely different, says Naidoo, to venture into the territory of judicial appointments. 

“This is where it crosses the line and shows that the system is being abused. There is a clear mechanism for the appointment of judges where the ANC is already represented and this is the Judicial Services Commission,” he says. “If that is a pervasive practice, it undermines the judiciary and respect for the rule of law.”

Naidoo says it is difficult to see the ANC succeeding in its Constitutional Court application, given the manner in which the party was dismissed by the SCA. 

When it comes to the second leg of the case, he believes there are constitutional matters at play and it may go as far as the Constitutional Court — particularly in light of Zondo’s state capture commission findings. (Zondo will likely have to recuse himself from the matter, as he has already expressed an opinion on it.)

Mashatile — now chair of the deployment committee as deputy president of the ANC — in the replying affidavit to the DA argues that the opposition party has “misconceived” the way the deployment policy works. The party doesn’t expect candidates to subordinate “their duties to the government (and to the country) to the interests of the party”, he says. 

“They are required to devote their full time to their governmental position without fear or favour.”

But this doesn’t preclude the ANC from making known who it “prefers” to hold particular positions. That’s its constitutional right to freedom of association and political expression, he says. 

Former Reserve Bank governor, labour and finance minister Tito Mboweni too sees nothing wrong with the party appointing relevant people to manage state agencies and activities. And anyone who wants to eliminate the practice is “in dreamland”.

“The DA does it as well ... they appoint people who they think can deliver on implementing their policies. It’s not unique to South Africa, you see it all over the world ... Parties appoint their own people to implement their policies,” he says.

“Where it goes wrong is when you appoint the wrong people for the wrong reasons.”

He adds: “I am a product of cadre deployment, and my record speaks for itself.” 

The court case is not the end of it. On September 19, the DA will bring a bill before parliament aimed at legislating the professionalisation of the public service.

Writing in his newsletter this week, President Cyril Ramaphosa said there is room for improvement in the country’s public service, and that far-reaching reforms are on the way to bolster state capacity and professionalise the service.

It is impossible, however, to escape the irony that Ramaphosa has appointed a minister to preside over this very public service who has hardly shot the lights out in her own government career.

Noxolo Kiviet was, in fact, reportedly rated the worst-performing premier by the public service commission in 2012, when she held the Eastern Cape premiership. She is also among the subjects of a Special Investigating Unit probe into a scandal around fraudulent degrees at the University of Fort Hare.

It’s a poignant example of Ramaphosa’s usual doublespeak — and of cadre deployment gone wrong.