The North Gauteng High Court’s rejection of the application by the DA to strike down the ANC’s practice of “cadre deployment” felt like an anticlimax in a longstanding debate about this controversial issue. How public servants are recruited and appointed into the senior non-elected offices of the public sector has blurred the boundary between party and state.

That there can in reality be a “bright” line between party and state, as the court implied, is itself open to debate, given a party’s understandable desire to ensure that public servants faithfully execute its policy agenda, and to enable it – as the judgment says, to “influence” the policy direction of government.

But the court also agreed that the legitimacy of influencing the policy direction of government is not the same thing as parties abusing the power of recruitment and appointment to politically “meddle” in government processes by rewarding party members with jobs in the public sector.

In reality, the tug-of-war between these two impulses makes it hard to maintain a bright line between the strategic interests of a party and the operational needs of the state.

This does not mean that we cannot function in a scenario in which there is a blurred line between party and state, as many other countries do. What it means is that merely striking down the constitutionality of deployment, as the DA desires, or erroneously distinguishing between a party “recommending” and “instructing”, as the ANC seeks to do, will not resolve the central problem: what guardrails do we put in place to prevent parties from abusing the appointment process?

The crux of the issue falls on the narrow legal distinction between whether the ANC’s cadre deployment committee “instructs” or “recommends”.

The DA argues that ANC bosses actively approve candidates for top positions in the public sector via parallel recruitment and appointment processes within the party. This, they submit, usurps the statutory power of appointment held by executive office bearers – ministers, as well as senior public servants.

It is unlikely that we can really separate the statutory role and authority of ANC ministers and other high office bearers in the state from their role in and obligations to the party.

The ANC counters that this is an incorrect reading of what the deployment committee actually does, which they contend is merely to “recommend” candidates for appointment in the public sector. Both parties draw on evidence from competing sets of minutes of the ANC’s deployment committees to support their respective arguments.

The problem with the DA’s approach is that although its intuitive suspicion of deployment hits the mark, it also seems to miss the point – killing deployment as an internal mechanism of the ANC will not solve the wider issue – parties inserting themselves into the process of recruiting and appointing top public servants.

If the formal practice of cadre deployment is eventually struck down on constitutional grounds, it might take on a more pernicious, clandestine and informal form, including through deliberations that are not minuted. So, will this court action really accomplish the end goal it seeks?

Party line

For the ANC’s part, to suggest that there is a real distinction between an internal party structure “recommending” suitable candidates for the public sector, and “instructing” the state to make these appointments, seems disingenuous.

The implication is that even if the party merely recommended that state officials appoint the people put forward by its deployment committees, these individuals – its own deployees, remember – would have a real choice in how to act. It is also in the interest of the ANC to draw this distinction, however improbable it might appear, because it allows the party to avoid claims that party structures usurp the legal power of ministers – its own deployees – to appoint.

It is unlikely that we can really separate the statutory role and authority of ANC ministers and other high office bearers in the state from their role in and obligations to the party.

The net result of this court action is that putting cadre deployment on trial – even if it succeeds – will not resolve the bigger problem of how to strengthen recruitment and appointment practices in the public sector to buffer the almost inevitable desire for political parties to influence appointment decisions in the state.

Read more in Daily Maverick: After the Bell: It’s not just cadre deployment; it’s the cadres you deploy

The irony of the ANC’s defence of cadre deployment in the high court case is that the party has long acknowledged the harm that bad deployment can do to government performance.

Moreover, in the recently tabled National Framework towards the Professionalisation of the Public Sector, published by the National School of Government and championed by President Cyril Ramaphosa himself, party deployment is explicitly attacked in favour of merit-based recruitment.

While this might appear like doublespeak on the part of the ANC, it highlights the urgency of implementing existing proposals to implement more stringent and independent checks in the process of recruiting and appointing public servants. DM

Vinothan Naidoo is an Associate Professor in Public Policy and Administration at the University of Cape Town.