From left: DA leader John Steenhuisen. (Photo: Gallo Images / Darren Stewart) | President Cyril Ramaphosa. (Photo: Leila Dougan) 
‘We are here to chop that cancer from the body politic,” advocate Anton Katz told a full bench of the Pretoria High Court on Monday.
Katz was referring to the DA’s application to have the ANC’s policy of cadre deployment declared unlawful and unconstitutional.
The policy, under increasing scrutiny since the Zondo commission’s consideration of the issue, reflects the ANC’s desire to have key state positions filled by approved individuals. The party has an internal committee which meets to deliberate over such positions and candidates, with more details of its proceedings revealed by the 2021 release of the minutes of meetings held between 2018 and 2020.
DA: Cadre deployment fosters corruption
The DA is objecting to cadre deployment on several grounds. Central to the party’s argument, however, is that the policy is inconsistent with the Constitution, which requires South Africa’s public service to be free from political interference. The party also argues that the policy undermines the rule of law by fostering corruption, and that it effectively gave rise to State Capture.
In court on Monday, Katz played to his audience by asking the bench if they were “okay” with the ANC’s stated desire to control “all levers of the state” — including investigative and judicial functions.
While the ANC might argue that its internal policies were beyond the scrutiny of the court because they pertain to a private organisation, Katz contended that “the policy of cadre deployment effectively operates as a policy of government”.
The ANC is also arguing that its deployment committee merely “recommends” suitable candidates, without dictating to the relevant member of the executive who should be appointed. Katz said the fact that the policy specifies that executive members who fail to follow the recommendations of the committee need to supply an “explanation” for having done so, and may face disciplinary action as a result, means that what looks like “recommending” is effectively “dictating”.
A further element of the DA’s argument is that the ANC’s policy undermines the right to equality by discriminating against public service candidates who are not ANC members.
Counsel for AfriForum — which joined the matter as an amicus, or friend of the court — on Monday took this argument a step further, contending that the policy amounts to “indirect discrimination on the grounds of race”.
AfriForum’s submission was subsequently described by ANC advocate Les Morrison as “a tirade of political content”.
ANC: Our policy is protected by freedom of expression
The ANC’s argument is that the DA is trying to limit the rights of political parties to express preferences about who they would like in public office — which amounts to a restriction of the party’s freedom of speech.
Arguing for the ruling party, Morrison said the very idea that a policy could be unconstitutional was “nonsensical”. He gave the example of a political party which might campaign to bring back the death penalty, and would be within its legal rights to hold this as a policy.
“The ANC has had the policy since 1985, since it was banned. The question we pose to the DA is: when did it become unconstitutional?” the advocate asked.
Morrison acknowledged that the members of the cadre deployment committee “wanted powers to tell the government what to do”, which he described as “very human”.
But there was no evidence that they achieved their objectives, Morrison said.
This was a point subsequently expanded on by advocate Mfundo Salukazana for the ANC, with Salukazana arguing that the DA had failed to provide sufficient proof that the policy led to the appointment of unqualified cadres.
“There has been no attempt to show that the appointments singled out by the DA were made solely on the basis of the cadre deployment policy in order to perform corruption,” Salukazana maintained.
It would be fallacious to assume; “You were appointed, you turned out to be corrupt, it means the ANC always knew when they deployed you that you were corrupt,” the advocate said.
Counsel for the ANC also argued that what was being presented in these proceedings is “the ideology of the Democratic Alliance dressed up as law”.
How does the cadre deployment policy play out in real life?
At the heart of the current legal debate is the cadre deployment policy itself — not the ANC’s deployment committee, or its proceedings.
But the committee meeting minutes, released by the Zondo commission after pressure from the DA, are relevant to those of us outside the court because they provided the only available glimpse into how the ANC’s policy is actually implemented.
As reported by Daily Maverick at the time, one of the more eye-opening revelations of the minutes was that the committee has, in the past, discussed and recommended candidates to be judges. This contradicted testimony by both ANC president Cyril Ramaphosa and former deputy secretary-general Jessie Duarte, to the effect that the committee did not involve itself in judicial recommendations.
In Ramaphosa’s testimony to the Zondo commission, he also gave some indication of how seriously Cabinet ministers take the recommendations of the committee, saying: “I know of ministers who have been there [in front of the committee] three times or more just to get a list [of candidates] recommended”.
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The suggestion there is clearly that if the committee disapproves of a candidate, the appointing member of the executive has to find a new one — somewhat belying the impression repeatedly given elsewhere by the ANC, and reiterated now in court, that the committee does nothing more than express an opinion which can be rejected.
But, as also noted by Daily Maverick separately, there is also clear evidence that not all the committee’s recommendations succeed. This was the case with regard to judicial appointments.
It is also not clear to what degree the deployment committee prioritises party membership over other relevant considerations, as the minutes show members discussing the skills, experience and CVs of candidates far more frequently than their ANC standing.
The ANC is arguing that the DA fails to understand the context in which the policy was born, which was one in which the majority of public service employees were “if not hostile, then sceptical” towards the new democratic administration, to quote Morrison on Monday.
But even some of the ANC’s current top brass have questioned whether the policy is still necessary, with Finance Minister Enoch Godongwana suggesting to Newzroom Afrika in 2021 that the objective of racially transforming the civil service has already been achieved. DM
Court proceedings continue on Tuesday.