Hoffman tells DA its cadre deployment battle ‘too widely framed’

Accountability Now’s Advocate Paul Hoffman has penned an expansive explanation on the history, intention, and chances of the DA succeeding in its legal action – in its current scope – to have the ANC’s deployment committee and cadre deployment ruled unlawful and unconstitutional. Hoffman believes the official opposition stands a greater chance of halting cadre deployment by “amending and limiting the relief it seeks from the courts”. The ANC and the government is opposing the DA’s court action. Testifying before the State Capture Inquiry, former secretary general of the ANC, Gwede Mantashe said the Deployment Committee merely expresses “a view” on a candidate but it was not binding on which person the party preferred for placement in a senior role in the state. That, ultimately, the decision lay with the respective minister in government. Hoffman says former public enterprises minister Barbara Hogan laid waste to this assertion when she testified at the commission. The DA also managed to get its hands on the minutes of the Cadre Deployment Committee between 2018 and 2021 – which similarly show it does more than just express “a view” as both Mantashe and ANC leader Cyril Ramaphosa put it. You can watch a previous interview BizNews did with the DA’s shadow minister of public service and administration Dr Leon Schreiber explaining their pending litigation here. – Michael Appel

The past, present and future of cadre deployment by the ANC

Back in the nineties, during the presidency of Nelson Mandela, the ANC adopted its notorious “cadre deployment” policy in terms of which loyal followers of its “national democratic revolution” are required to seize “hegemonic control of all levers of power in society” to advance that revolution.

“Society” , mark you, not just government.

The cadre deployment committees of the ANC which function at national, provincial and local levels are riven with factionalism and have been for more than a decade. This discord leads to less than satisfactory outcomes when the favourites of the dominant faction at any given time are not the best, or even appropriately, qualified candidates. The ANC party structures elbow aside the legally created systems for the appointment of personnel in the public administration and the state-owned enterprises. 

This practice leads to the undermining of those who are supposed to be in authority. The appointees regard themselves as the deployed cadres of the ANC rather than public servants and do not answer to anyone other than the ANC deployment committee that appointed them. The firm loyalty to the party leads to a conflict of interests that is unmanageable whenever party interests do not coincide with the public interest. 

JOHANNESBURG, SOUTH AFRICA – DECEMBER 17, 2017: African National Congress (ANC) president Jacob Zuma, Zweli Mkhize and Cyril Ramaphosa during day two of the 54th National Conference on December 17, 2017 in Johannesburg, South Africa. People gathered at the Nasrec Expo Centre to be a part of the ANC national conference for the vote for a new ANC president. (Photo by Gallo Images / Netwerk24 / Deaan Vivier)

Which deployed municipal manager uses funds to fix the waterworks when the mayor needs a new car?

Cadre deployment facilitated the state capture projects of the Zuma era. Those cadres who were not prepared to play ball were hounded out of their positions. Some became whistle blowers and gave evidence to the State Capture Commission.

The goal of establishing a hegemonic form of control of the state and of society too is startlingly at odds with the notion of multi-party democracy under the rule of law, a notion which is at the heart of our new constitutional dispensation, ushered in when freedom finally dawned in SA. The “unity in diversity” contemplated in the Constitution and “hegemonic control” make strange bedfellows. Jacob Zuma revealed his lack of appreciation of constitutionalism when he lectured Lindiwe Mazibuko, then leader of the opposition, in parliament about the majority having more rights than the minority “because that is how democracy works” in his understanding of constitutionalism in SA. In fact our Bill of Rights makes it plain that the state is obliged to respect, protect, promote and fulfil everyone’s rights.

The fact that cadre deployment continues after the High Court has characterised it as illegal and unconstitutional in the Amathole District Municipality case is indicative of how far the ANC has strayed from the rule of law and the constitutional requirements for good governance.

The public administration provided for in the Constitution should exist to render services to all people in a manner which is impartial, fair, equitable and without bias. [s 195]. It must loyally execute the lawful policies of the government of the day [s 197].

Everybody is entitled to fair labour practices [s 23]. Good human resource management and career development practices must be cultivated for public servants [s 195]. These requirements are the antithesis of the ANC’s cadre deployment model of governance which is itself inconsistent with binding constitutional principles.

The Constitution does contemplate a public administration and a judiciary in which the former must be “broadly representative of the South African people” and in which the “need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”.

These constitutional provisions are not a fig leaf for cadre deployment. Loyalty to the ANC is not a constitutional requirement. On the contrary, judges are required to be impartial and independent and the public administration must provide services “impartially, fairly, equitably and without bias” [as set out in s 165 and s 195(1)(d) respectively.]

The values and principles which inform our public administration apply to administration in every sphere of government, to organs of state and to public enterprises [ s 195(2)].

Having heard the relevant evidence, the State Capture Commission recommended the scrapping of cadre deployment. Even before this recommendation was made the DA applied to court for an order declaring the cadre and deployment policy of the ANC unlawful and unconstitutional.

Both the ANC and the government are opposing the application.

David Mabuza, newly appointed deputy president of the African National Congress party (ANC), right, embraces Paul Mashatile, newly elected treasurer general of the African National Congress party (ANC), during the 54th national conference of the African National Congress party in Johannesburg, South Africa, on Monday, Dec. 18, 2017. With his election as leader of the ruling African National Congress on Monday, Ramaphosa, 65, will be the party’s presidential candidate in 2019 and may take over running the country from Jacob Zuma sooner than that if he’s ousted before the end of his second term. Photographer: Waldo Swiegers/Bloomberg

The attitude of the ANC is expressed by its Treasurer General, Paul Mashatile, and has been widely reported as opposition based on criticism of an ill-advised step by the DA. He claims that an attack on a political party’s policy is ill-advised and without merit. It is an attempt to restrict political autonomy according to Mashatile.

He overlooks the provisions of s 2 of the Constitution which make it clear that any conduct that is inconsistent with the Constitution is invalid.

The question is whether cadre deployment in the public administration, as widely defined in s 195(2) of the Constitution, is conduct inconsistent with the Constitution.

As career development practices and good human resource management are required by the Constitution, which also prescribes that national legislation must ensure the promotion of the values and principles governing the public administration, it is a racing certainty that any party which seeks to reserve positions in the public administration for its loyal cadres is conducting itself in a manner which is inconsistent with the Constitution. Accordingly its policy may be struck down as invalid when challenged or impugned for its want of constitutionality.

Mashatile is right to defend the political autonomy of the ANC. This freedom is guaranteed in the Bill of Rights which allows for political organisation in s 19 and for freedom of association in s 18. These freedoms do not imply that the entire public administration (as defined above) becomes the playground of the loyal cadres of the majority party in government from time to time. Nor can it be argued that the values and principles that constitutionally inform the public administration should be regarded as no longer part of our supreme law simply because the ANC wants to deploy its cadres. SA is a country of 60 million people. To draw the entire public administration from the ranks of loyal cadres of a political party that has about 1 million members in total is a recipe for the type of disasters in the form of state capture and rampant grand corruption which SA has endured during the past two decades. The chaos is a direct consequence of the deployment of cadres who owe their allegiance not to service of the people of SA but to the national democratic revolution of the ANC. Many features of that revolution are themselves unconstitutional as has been pointed out previously.

It is risible to suggest that one political party with so few members can become the sole repository of all of the skills and talent required to run the entire country via deployments worked out in smoke-filled backrooms of Luthuli House. No wonder Eskom is not able to cope with supplying power reliably.

To the extent that the relief claimed by the DA implies or suggests that cadre deployment to purely political positions from presidency down to municipal councillor is illegal, the relief claimed is too widely framed and the opposition to it is justified whether from government or from the ANC.

It is true that a very limited number of positions in the public administration require, as a key performance indicator, an appreciation of, and possibly even support for, the policy positions of the governing party. This wrinkle in the system of good human resource management that is constitutionally prescribed is catered for in s 195(4) which allows for national legislation which permits appointments on policy considerations. There is no legislation that allows cadre deployment in the public administration (as defined) in the form in which the ANC has indulged in the deployment of its loyal supporters in the past.

By amending and limiting the relief it seeks from the courts, the DA can fell at the knees the arguments put up by Mashatile insofar as they relate to deployments in the state enterprises and the public administration. It is the choice of all political parties to nominate their candidates for political office at national, provincial and local levels of government. Concomitantly, it is the right of voters to give their support to the candidates and parties of their choice.

Conversely, the public service is required to loyally execute the lawful policies of the government of the day. Cadre deployment in the public administration has already been ruled unlawful in the Amathole District Municipality case. The ANC chose not to appeal that decision, preferring the “work around” solution of pretending that cadre deployment committees do no more than make recommendations to the statutory bodies tasked with making appointments. 

That pretence has been blown sky high by the evidence given at the State Capture Commission both by the president and by the chairman of the ANC, Gwede Mantashe. The latter railed against features of cadre deployment as long ago as 2010, but was unable to prevail upon his comrades to change the evil practices of cadre deployment in the public administration which led to the state capture project.

JOHANNESBURG, SOUTH AFRICA – NOVEMBER 12: Former Public Enterprises Minister Barbara Hogans at Zondo’s commission of inquiry into state capture on November 12, 2018 in Johannesburg, South Africa. Testifying at the inquiry, Hogan revealed that the ANC and its alliance partner ANCYL, attacked her as they pushed for the beleaguered Simphiwe Gama to be appointed Transnet CEO. (Photo by Gallo Images / Netwerk24 / Felix Dlangamandla)

It was plain from the evidence given to Chief Justice Zondo during the commission hearings that the recommendations of the cadre deployment committees of the ANC are in fact recommendations of a binding nature. Minutes mysteriously disappeared, or possibly (rather implausibly) were not kept when cadre deployment committees met. Former cabinet minister Barbara Hogan made in plain in her evidence to the commission that ministers trembled and sweated before cadre deployment committees. It is not necessary to do so if it is true that mere recommendations were being made. The characterisation of the activities of cadre deployment committees as merely making recommendations does not hold water and will not impress any objective and impartial court hearing the case that the DA has brought.

The future health of the public administration in SA hangs on the outcome of the DA’s case. Loyalty to the state and the people of SA has to replace loyalty to the ANC in the public administration if SA is to escape the quagmire into which it has been plunged by the practice of cadre deployment in the public administration. The ANC leadership and the cabinet know these divided loyalties to be the cause of state capture. They should, instead of opposing the DA case, consent to relief which abolishes cadre deployments in the public administration as a mark of their commitment to ending corruption in the land. It seems unlikely that the DA will persist in claiming the overbroad relief it has initially sought. As a party of constitutionalists it too must respect and protect the rights of the ANC to associate as it sees fit and to organise politically within the confines of our supreme law, the Constitution. Deployed cadres in party political positions are acceptable, those in the public administration, including SOEs are unlawfully deployed.

Paul Hoffman SC is a director of Accountability Now

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