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By Michael Appel
The ANC has filed court papers announcing it will oppose the DA’s legal action in the North Gauteng High Court aimed at having the governing party’s cadre deployment committee ruled inconsistent with the Constitution, unlawful and invalid.
As a starting point, what is cadre deployment and what is it supposed to achieve?
The ANC’s Cadre Deployment Policy states, “Our immediate goal, as set out in the Strategy and Tactics, is to deepen the hold of the liberation movement over the levers of the state and begin to impact positively on other centres of authority and responsibility outside the immediate realm of the state institutions. A core pool of comrades needs to be identified for deployment in each of the key strategic centres of authority and responsibility, particularly in relation to the legislatures, civil service, parastatals, independent bodies and ambassadorial appointments.”
Testifying before the State Capture Inquiry, former secretary general of the ANC, Gwede Mantashe said the Deployment Committee would merely express “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.
But, as detailed in the DA’s court papers, former Public Enterprises minister Barbara Hogan testified before the commission that: “I am not saying that the Deployment Committee didn’t always operate with honesty and integrity, but the weakness of the system is that if the Deployment Committee is captured by whatever forces it can have a fundamental impact on government. And so we have to protect government from undue influence.
“The Executive Committee the ANC saw it as their right to instruct a minister who should be appointed and not appointed. That is an abuse of power and that is usurping executive authority. “
In his capacity as the former deputy president of the ANC, Cyril Ramaphosa, was the de facto chairperson of the party’s Deployment Committee between 2012 and 2017. This was an era in which the worst looting of state coffers took place, crippling state-owned entities like Eskom, Transnet, Denel, PRASA, SAA and others . Ramaphosa testified that the committee only “recommends”.
The DA managed to get its hands on the minutes of the Cadre Deployment Committee between 2018 and 2021. Curiously, the minutes for the years Ramaphosa was chair of the committee cannot be found by the ANC. What the available minutes for later years do reveal is that the committee intervened in the appointments of 88 state institutions, “and summoned 29 Ministers and Deputy Ministers as well as the President to account to it, in order to ensure the Committee’s direction over crucial public appointment,” states the DA’s court papers.
In an interview with BizNews, the DA’s shadow minister of public service and administration, Dr Leon Schreiber, says there is now simultaneous action in South Africa’s courts and Parliament with the official opposition hoping to put “the final nail in the coffin” of cadre deployment. This off the back of a finding by State Capture Inquiry Chairperson Raymond Zondo in his final report that the deployment committee’s actions are “unconstitutional”.
Schreiber, explained that on top of pending court action, he also introduced the so-called End Cadre Deployment Bill in Parliament in August 2021.
Schreiber is hopeful this two-pronged approach could bring an end to cadre deployment; a secretive parallel structure operating in such a way that it “amounts to unfair labour practice”.
Dr Schreiber on the conclusion of the Zondo Commission
So the great news is that this is now no longer even just the DA’s opinion, and this is around the matter of ANC cadre deployment. This is a situation or a practice that has been going on for well over 20 years now. And finally, we’ve had really complete vindication from the Zondo Commission confirming that cadre deployment is unconstitutional and illegal, also basically rubbishing President Ramaphosa and Minister Gwede Mantashe’s claims during the testimony in front of the commission that somehow this was a harmless practice and that the kind of deployment committee only makes recommendations. The commission finds in very clear terms that the ANC cadre deployment committee exists in order to interfere in appointment processes in the public administration. It also confirms that this committee actually issues instructions on who should be appointed to positions of power. The problem with this, and as we’ve been arguing for two decades now, is that this practice circumvents the legally defined appointment processes. In other words, it’s a secretive committee that meets and decides on the basis of considerations that are favourable to the ANC who should be appointed rather than having an open and merit based appointment process. So we are delighted that the Zondo Commission has come to this conclusion because it adds very powerful additional ammunition to the court case that we’ve lodged in order to now have this confirmed by a court that this practice is unconstitutional and must be uprooted. I would just say that the urgency of this court case has been proven by Minister Mantashe, who within less than a week came out to try and undermine this finding and saying that, well, the Zondo commission is just a commission, it’s not a court of law. That is exactly why we’ve gone to court. And I’m sure that this is now going to be the final critical step in this process. So we can really put the nail into the coffin of ANC cadre deployment.
On the “End Cadre Deployment bill” and when it was introduced
So the bill was introduced in August of last year. We had an initial round calling for public comment just on the objectives of the bill. And in that case we got hundreds of very powerful comments supporting the position outlined by the bill. On the 8th of June I also presented it to the Portfolio Committee on Public Service, and it should be in the new term in August that there will be another meeting to actually now discuss and vote on whether this bill moves forward or not. So what has been really encouraging is that the proposals contained in the end cadre deployment bill, which is designed to do just that by, for example, making it illegal for anyone who holds political office, in other words, any politician in a party to actually be employed in the public service and the public administration, it would also make it a criminal offence to interfere in appointment processes in the way that the cadre deployment committee does with a one year jail sentence attached to that, and it would give significantly expanded powers and also enhance the independence of the Public Service Commission to actually enforce merit based appointments throughout the state. So the good news is that these proposals received quite strong support from the Public Service Commission itself and also from some officials in the Department of Public Service and Administration who have supported key aspects of the bill. The question, of course, now will be the ANC, will the turkeys vote for Christmas? They do at this stage still have a majority in parliament, although we’re working hard to make sure that ends in 2024. So at the moment, we are basically rallying as much support for the bill as we can, whether that’s from civil society. Or from other opposition parties. So that we can really stand up and be counted when this bill is voted on in parliament. Just an important point to make now that the final Zondo Report is out and essentially confirms the need for the bill. It’s going to be very interesting to see whether this is going to be the first instance where the ANC starts to undermine the findings of the Zondo Commission. In my view, voting against the End Cadre Deployment bill would directly contradict what the Commission has found. Now we’ve repeatedly heard the ANC and President Ramaphosa saying how they will support the implementation of the recommendations from the Commission. We will know very soon whether that means anything, I think, when the end cadre employment bill appears in Parliament. Now as you mentioned and obviously on the other side, we do have the legal action going ahead. It’s been a long road to get to this point because what we had been lacking really for the last 20 years was the kind of hard evidence of how this committee operates. That would really seal the deal in a court case. We had, of course, the ANC stated policy on cadre deployment, but for many years there were these denials that this committee doesn’t really exist, it doesn’t do much. It doesn’t really influence anything. And really, the breakthrough in this case came when we exposed those minutes from the ANC’s cadre deployment committee, because that is the hard evidence, along with the Zondo findings, along with testimony delivered in front of the commission. Those are the things that will be decisive in the court case, and that’s why we’re very confident that finally we have enough to win this case.
On the period they were able to get those minutes and which minutes are still missing
Indeed. And this is something that Judge Zondo also addresses in the final volume of the report. So what we have are the minutes from 2018 until 2021. This is also what the ANC shared with the Zondo Commission. But President Ramaphosa during his testimony, told the Commission that somehow the minutes don’t exist for the period in which he was the chairperson of this committee. That’s from 2012 until 2018. And again, it’s no longer just the DA or civil society saying that this is unlikely. The Zondo report itself says that it is either very unlikely or a shocking practice to make decisions around who is appointed and not even keep proper records of that. The reason I think it is nothing but a boldfaced lie is because in the very first meeting minutes from May 2018 that we do have. In other words, the ANC contends that there are no minutes before this date. The very first item from those minutes is the adoption of the previous minutes and therefore, according to their own documents, there is at least one set of earlier minutes that they have not made available to the commission or to the public. And that is why, while we are running with this court case now against the practice itself, we have also currently going on and are hoping for a court date for a separate court action where we are still trying to force the ANC to make available those earlier minutes. And as I say, this example, which confirms that they are indeed at least some minutes from prior to this period, are going to be really critical because they will show the personal involvement of what this committee did while President Ramaphosa was the chairperson. So watch this space in this regard as well.
On what is the best and worst case scenario heading into 2024
So just to say, first of all, in the best case scenario, the key distinction to make is that in this case and cadre deployment in general, the problem with it is not with respect to the political sphere. So members of Parliament, the president, councillors and even some political advisers that are provided for in the law, those are obviously political positions and in fact are politicians. It is democratic. Correct that the ANC, if it gets a certain number of votes, will be entitled to a certain number of seats and fill those seats. So that’s not what this is about. So technically, the ANC members of parliament will not be the ones who will suffer the consequences because they are politicians, and that is correctly so in any democracy. However where there will be an impact is obviously for ANC members or cadres or supporters who have gotten positions in the civil service, which is supposed to be an independent and impartial implementer of government policy. And that’s made very clear also by the Constitution that members of the public service must implement the lawful policies of the government of the day. So there’s no question about that. What the ANC has however done is extended its political influence much deeper into the civil service. And that’s why you see people who are supposed to be planners or engineers or other technical positions are filled by people who can’t do the job because they are appointed on the basis of their loyalty to the ANC, not on the ability to do the job. So that’s an important distinction and perhaps gives some hope that the ANC can understand this distinction.
And given this under reports, there may be some members who feel like this is the right thing to do. However, we are not naive about it and obviously until you have a majority or in Parliament, then you can’t guarantee any of these things. So that is why we are following the additional steps that I’ve outlined, because even if the bill does not pass, we will have the court case which hopefully will seal the deal against cadre deployment, and then the ANC will have no choice. Then there will be no choice for Mr. Mantashe to say, oh well it’s just a commission and we will take this thing all the way to the Constitutional Court if that’s what it takes to get this confirmed. Now, of course, we already know that the chief justice of the Constitutional Court, Judge Zondo has made his views clear on this. And so that does really give hope that whenever this court case does conclude, we will emerge victorious from that. But there is another aspect here that I’m currently working on, and that is while the court case and the bill are looking forward and saying, how do we prevent this from ever happening again in future? There is also an aspect here or a potential for us to look backwards, at least into the immediate history based on those minutes. And that is something that we’re currently exploring. What is the best way to intervene in specific appointments that were made in an unlawful and unconstitutional manner through the cadre deployment committee?
So that is another potential action step that we are currently exploring. And so in whatever configuration this ends, I am quite confident that it will be before the 2024 election. It will be either through the courts or through Parliament or through other legal action or potentially all of those together. But I think that perhaps the important point of this entire campaign is when you want to take on something like systemic corruption, which is really what kind of deployment is. There is no single silver bullet or one one statement or thing that you can issue and say now you’re you know, you’re winning this fight. It is a very long term and it requires a very comprehensive response. And I think that’s more than anything, reason for optimism in this case is that the DA really has been working very comprehensively against this. And I think that’s why we’re ultimately going to succeed, because we are simply winning the war on all fronts, whether that’s in the public mind, whether that is politically, whether that is going to be in the courts, whether that’s through the Zondo Commission. Those are all the avenues of this conflict. And I’m very confident that we are now starting to see the fruits of this fight.
On if people deployed to state owned entities like Eskom Transnet and Prasa and whether they should be held responsible
That is exactly the direction in which I’d like to go. And an important part of this is that the Zondo report has also confirmed that cadre deployment amounts to unfair labour practices. and the reason obviously is simple because if you and I apply for a job and we go through a selection process. But in the meantime, there’s a secret meeting that decided a different candidate should be appointed regardless of the outcome of that selection process. That’s obviously unfair labour discrimination against the people who are not favoured by the kind of deployment committee. So there is a labour law aspect that we’re looking into. And then, of course, at the moment, any retrospective action would only be limited to the three years of hard evidence that we have in the form of those minutes. And that’s where it links, with the case we’ve got going on to get hold of earlier minutes because then we can also go back further and look. And it is highly relevant to look at the period when the current president of the republic was the one interfering in these appointments. And that is an incredibly important piece of this puzzle that has to be part of any accountability for past decisions that have already been taken. So at the moment, we are looking at different options. You’ll appreciate it’s quite a complex and a difficult terrain to navigate because you obviously will have to find people who were themselves disadvantaged, who went through this process.
On if the many infrastructure failings in South Africa are directly attributed to cadre deployment
Absolutely. And therefore, the biggest victims of cadre deployment, as is always the case with any form of corruption, are the poorest of the poor who rely, to some extent, on those functioning public services, because they are the ones, at the end of the day who have no buffer against the kind of rising food prices that we see, the kind of economic implosion and growing unemployment that we see all around us. And even things like the Stage six load shedding that’s taking place right now, that is the direct consequence, the direct result of cadre deployment over many, many years, over decades into different positions, different levels within an institution like Eskom. And now it is something that’s reached a crisis point and it’s really affecting the poorest of the poor the most. So the fallacy here is, that somehow cadre deployment in any form is beneficial to the poor. That is absolutely untrue. And in fact, the thing that will be of greatest service to the 30 million South Africans who live in poverty is to make sure that we finally start appointing competent people into positions like state owned enterprises, like government departments, because at the end of the day, we need people to start doing these jobs. We cannot fix the roads or the ports or the harbours or the electricity until we get competent people into positions of power. And whether that person is black or white or whatever the case may be should really be immaterial at this point. Our state is collapsing and we need the best from all amongst society to really step forward into public service. And I would also just say it’s really insulting to the millions of unemployed black professionals in South Africa, many young graduates who cannot find work despite being far more qualified than many of these cadres who have been deployed to positions in in the state to somehow say that they require cadre deployment and some kind of ANC patronage system in order to find jobs. That is a mafia-like argument to make. And at the end of the day, it is exactly those skills that we are not drawing on. We are not attracting that new generation of of young, talented and many of them black South Africans who can help us fix these problems because cadre deployment actually locks them out far more than it does anyone else, because it reserves these positions for people like Dudu Myeni and Hlaudi Motsoeneng and Brian Molefe, and frankly, making the argument that those people are more qualified because they have links to the ANC, then the millions of unemployed young people especially, is really a very insulting argument to make.
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- ‘Cadre deployment will sink the ANC’ – Terence Corrigan
- ANC cadre deployment minutes labelled a ‘mockery’ – Full Report
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