I have argued before that the practice of political appointments in public administration is central to South Africa’s corruption. It is also unlawful in our contemporary constitutional and statutory framework.
The Zondo Commission cited my work supporting the insulation of personnel decisions from political interference, but today I suggest that the DA’s motion to have cadre deployment declared unconstitutional is politically dangerous and legally blinkered.
I am also no great fan of the ANC’s response, but one opinion at a time.
In terms of political strategy, the task of building a professional, non-partisan civil service is always an arduous one. There are no shortcuts. The process is necessarily incremental. Progress must take pains to nurture a stable governing consensus that reaches across party lines and incorporates a diverse constituency.
South Africa, against great odds, has been moving in this direction. We see this in tentative, statutory steps to clarify the line between party and state. We now have strong pronouncements in government policy and a lively debate within the ANC itself. The demand for professionalising the public administration is today regularly endorsed across progressive civil society and beyond.
The DA’s court action in the Pretoria High Court threatens a schism. The policy of cadre deployment was adopted in the 1980s in the heat of the struggle against apartheid.
In the 1990s, attitudes around it hardened, partly because the DA brought it to the centre of its “fight back” campaigning. After making overtures to black voters into the mid-2010s, the party has lately moved to shore up the rights of its white constituency. This has involved a renewed posture of aggressive opposition.
The party’s legal arguments against cadre deployment target the ANC alone. In a context where other parties practice political deployment, a declaration of invalidity against the ANC suggests a process of one-sided disarmament in an increasingly competitive political system.
All this cuts through consensus, promotes partisan polarisation and incites racialised backlash against necessary reforms, the courts, and even the Constitution itself.
The DA’s application plays into the surging anti-constitutional sentiment of recent years. It is also questionable on narrower grounds of policy and law.
The party and I have different conceptions of the genesis of the problem of political appointments. The DA blames the ANC’s Leninist doctrine of cadre deployment, playing up neoliberal fears of African nationalist and communist “collectivism”. I argue that cadre deployment rather formalises in partisan policy and attempts to manage a dynamic that is powerfully driven by wider circumstances.
A mass-based patronage system
When the ANC assumed incumbency in 1994, it took on the challenge of controlling a public administration that it could not trust. The manoeuvres that followed eliminated statutory checks on political appointments. This had the effect of infusing state personnel decisions with all the demands of a society in which most people live in poverty. It thereby opened the way to the emergence of a mass-based patronage system.
It is a complex, big, structural problem. The DA’s application barely touches it.
ANC politicians already routinely influence appointments outside the cadre deployment policy and committee system. Other parties without such a policy also often do so, including, arguably, the DA itself.
I am partial to the view that political parties should not have policies that direct the implementation of unlawful practices, but what we need is not so much the invalidation of one party’s internal procedures, as a more sophisticated attempt at addressing a broader pattern of politicisation.
There are at least two interrelated legal avenues worth exploring to achieve that.
First, the Constitutional Court has noted that corruption is a threat to our democracy and that it strikes against fundamental rights. In order to protect legally enshrined requirements of institutional independence, it has invalidated specific legislation, with suspended effect to give time for parliamentary correction.
In this vein, Chapter 10 of the Constitution clearly envisages a sphere within the public administration which is professional, non-partisan and demographically representative. It allows for some appointments to be made on the grounds of policy considerations, but currently, this only applies to ministerial advisers under section 12A of the Public Service Act.
The requirements of political “independence” articulated across these provisions are relatively loose. They leave ample room for the exercise of legislative prerogative. But they also apply very broadly across the public administration and plausibly impugn a range of current laws.
The second avenue worth exploring arises from international precedent.
The level of judicial involvement means that this precedent is probably best applied in strategic litigation around specific departments, public entities and municipalities. US courts have elaborated relevant legal language, principles, and structural remedies that find support in South Africa’s Constitution.
In relation to famously corrupt Cook County (including Chicago) and Illinois, the federal district court has been instrumental in significantly curtailing patronage operations. The so-called Shakman Decrees, issued over a number of years, embodied negotiated settlements between parties.
These required governments to develop compliance plans excluding political criteria from most personnel decisions. They opened the door to enforcement actions by individuals affected by violations.
In the process, tens of thousands of government positions have been effectively removed from the ambit of political deployment. DM
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A sophisticated and nuanced opinion.
So what you actually postulate in the meantime is for us to sit on our hands & wait for it to work itself out? Or am I missing the part where we actually do something to turn things around in this country?
I completely agree.
I am so tired of the “No it’s not perfect so don’t do it. Better let’s just sit and fry” approach.
The percentage likelihood of achieving perfect in this country currently is about – hmm sorry this may take some time to add – ah yes, that’s it
Zero.
I support the DA entirely. The point is not whether it’s perfect but to improve the direction of travel.
Thank you for a knowledgeable and important piece. Cadre deployment is an old communist strategy that ensures control of powerful positions. But, as you note, both that and various kinds of nepotism are not uncommon in other countries. I think cadre deployment should indeed be banned from ANC policy; but the key issue in South Africa is competent and honest public service. Obviously this does take time – not that they have been trying, many would add. But as to corruption, much of it attaches to public procurement contracts and tenders, often for very large amounts. The cases reported daily, not least in DM, are simply astounding in how even the most elementary procedures are ignored and contracts awarded to buddies at obscenely inflated prices. Surely, surely, tender processes are not that hard to enforce, with a watchdog, if necessary spot checks on any major tender process, and immediate punishment of officials who fail to follow the rules. The procedures are fairly simple: checking the applicants’ competence, financial status, previous experience, etc.; and checking, which is also not difficult, that offers – for locomotives for example – are comparable with international cost levels. Hopefully the Zondo Commission and other recent moves have at least put the brakes on the “help yourself” mentality. If only we had a leader who could now show some strength.
Well said Chris, I’ve been preaching this, many times, insisting that a professionally competent tender/procurement Board be formed for whenever large tender or procurement action is required – there should be a law against all procurements or tenders, subject to, maybe, smaller values, going out without going through this body, by penalties and heavy fines. This is where many large tender and procurement Fraud, occurs.
Believe me, as a Quantity Surveyor – I have studied this in the building industry in S A and Lesotho and certain overseas companies working in SA. We are throwing away Tax-Payer’s/Client’s money for Tender/Procurements, by not insisting that these must only go out when authorised by a governmental Monitoring and Controlling Tender board.
Recently many tenders and procurements have been put out by unqualified criminals (?) posing as Managers on behalf of Fat cats who intend to commit large tender/procurement Fraud
DM reports and comments on these crimiinal acts many times a month.
Again, let us put an end these “criminal Entrepeneurs”.
We all need to do something to stop this before many more millions of Rand gets stolen, again.
Please support me and spread the word.
Political appointments for the upper echelons of the public service are a well know and used approach in some countries. In the USA for example the top two or three levels change with a new administration. The only difference to our system is that the appointees are all professionally competent!!
I do think the critical part here is the skill set of the appointed. Cadre deployment is pretty normal in other countries to a degree, but the person deployed must have the correct and adequate skills. So if legally we could use the law to stop a party from deploying people solely on their party allegiance, then I would support that, and we all should!
And while “the task of building a professional, non-partisan civil service is always an arduous one”, I think after 25 years of near consistent failure on every level of government purely due to the ANC and its policies. One of these policies has been identified as the main culprit of state capture by a billion Rand commission so I think it’s ok to question this policy and try and first stop it urgently. At least the DA is trying to stop this madness, your other suggestions don’t seem to be able to find a short term solution. And we must find a shorter term solution to putting the right people in positions before there is nothing left of the country. How about contacting the DA and offering your support?
The high minded pontification of another carefully crafted academic argument that allows the ANC to get away with its multitude of corrupt dealings layered in ineptness and incompetence. Yeah, nah yeah, let’s rather wait for an organic rectification of the system from good intentioned meditation – that’ll pay the bills and keep the lights on!
Conduct inconsistent with the Constitution is invalid per C2. Cadre deployment is inconsistent with the values and principles set out in C195(1). Ergo it is invalid, illegal and unconstitutional as already found in Mlokoti’s case. A party with a grand total of 600,000 members cannot reasonably be expected to have enough loyal cadres of merit who are qualified to work the levers of power in the public administration and SOEs, given that our population is around 60 million.
Edwards, some people have studied things and have real knowledge, and not all academics are airy fairy out of touch bozos. I have been both academic and building site worker. and we need to respect each other. Brunette was not defending ANC cadre deployment but rightly warning that the issues are more complex. This kind of angry dismissal of (all) intellectuals only drags the world down into the chaos of fake news, airhead populism and thoughtless grumbling. I agree with Mr Karl above who is more thoughtful and nuanced with his views.
Very objective! For me a bigger problem is the strategy and tactics of the DA to build its credibility by taking opposing positions on anything the ANC does positions themselves as perpetual opposition and not a government in waiting.
The ANC is doomed to failure as they are ideologically paralysed by having to pander equally to outright communism, socialism, while still giving being warm and fuzzy to capitalism of investors needed to create jobs.
The position of the DA seems ambivalent and that they are ‘softly capitalist’ recognising that only new investment in production capacity will generate the growth needed to achieve a brand of ‘market- socialism’ is needed but, at the same time not alienating the hoi polloi.
We need a ideological defined and policy specific opposition to the ANC that may better define an alternative government.