It is up to the ANC to decide what it wants to do with its internal policies, argued lawyers on Tuesday opposing the DA’s application to have the ruling party’s cadre deployment policy declared unconstitutional and unlawful.

This has been one of the major refrains of the advocates representing the ANC, President Cyril Ramaphosa, Public Service Minister Thulas Nxesi and the government this week: the DA cannot attempt to dictate, through the courts, what another political party’s policies should be.

Indeed, it was suggested on Monday, this might give rise to “lawfare” in which the courts are flooded with attempts to amend the policies of political rivals.

But should the policy of cadre deployment, which sees the party’s preferred candidates recommended to fill key state positions, be considered in the same light as other internal political policies?

It can’t be, the DA has argued, because “the policy of cadre deployment effectively operates as a policy of government”.

Furthermore, the DA’s Anton Katz added on Tuesday afternoon, there exist other scenarios in which the courts would be justified in meddling in the business of a private organisation: if the body in question had a stated policy to bring down the state, for example.

Advocates for the other side have argued that a policy cannot in itself be unlawful or unconstitutional; it can only be put to unlawful or unconstitutional ends.

As advocate Adila Hassim put it on Tuesday, arguing for the state: “When a law is abused, it doesn’t follow that the law is unconstitutional. It’s the case of the abuse that must be addressed.”

In other words, if the DA has evidence that the implementation of the cadre deployment policy has led to undesirable outcomes, it can challenge “those specific appointments where the appointee doesn’t meet the minimum qualification requirements or there’s evidence that the appointee is compromised”, Hassim suggested.

Furthermore, she said, the DA had already done this effectively in the past.

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Another tack taken by the ANC: that South African case law establishes that as an appointing official or a minister, you are allowed to take account of other people’s views. This is all that happens via the party’s cadre deployment committee, lawyers suggested: important people are given opinions.

“We’re not dealing with judges, who can’t be influenced at all,” ANC advocate Les Morison said on Monday.

The DA has argued that the cadre deployment committee does more than recommend, however: it effectively usurps the power vested by the Constitution in Cabinet ministers and other members of the executive to make decisions about state appointments.

The difficulty for the DA here appears to be that there is little concrete evidence that can be pointed to in order to definitively show an occasion on which a minister was instructed to make an appointment by the committee that he or she would not otherwise have made.

One of the examples the DA has attempted to put forward is that of the appointment of Tom Moyane as commissioner of the South African Revenue Service (SARS).

The ANC has, in turn, tried to poke holes in this illustration in two regards. On Monday, advocate Mfundo Salukazana suggested that the fact that Moyane may have been appointed under pressure from former president Jacob Zuma does nothing to support the wider claims about the cadre deployment committee, since Zuma was not a member of that committee.

Representing the minister of public service and administration on Tuesday, advocate Isaac Maleka argued, moreover, that SARS is not technically part of the public service — relevant because one of the DA’s contentions is that cadre deployment undermines the nonpartisan constitutional vision for South Africa’s public service.

What the DA wants is for the court to declare the ANC’s policy unconstitutional and unlawful.

To do so would give rise to “unacceptable consequences”, argued Maleka, building on an argument first raised on Monday — that a sweeping declaration of this nature could mean that countless past state appointments would now be ripe for challenging in court.

This is easily dealt with, retorted Katz: the court could simply make an order that the declaration is “only prospective”. In other words, it could only be applied to decisions about future appointments, not those in the past.

There was one statement in court on Tuesday that seemed impossible to argue with. The DA and ANC have approached this matter, observed Katz in his concluding remarks, “from different galaxies”.

It is now left to the Full Bench of the Pretoria High Court to drag the matter back down to Earth. Though judgment was reserved on Tuesday, Deputy Judge President Aubrey Ledwaba said that the judges would endeavour to rule as soon as possible.

“We are aware that this is an important matter,” said Judge Ledwaba; one in which “clarity” is sorely needed. DM