When Michael Evans sticks his head above the parapet, as he did in Daily Maverick on 11 June, it is advisable to pay attention to the points he makes.
Evans is a highly regarded senior attorney with an impeccable track record which he was obliged to place on record under oath in recent litigation. In his affidavit, and also his Daily Maverick piece, he records that he was a member of the ANC underground from 1983 to 1990. He has not been a member of any political party since then, but has done sterling work in his capacity as a practising attorney.
The take-home message from his piece is that the ANC’s practice of cadre deployment is in danger of bringing about a kakistocracy in South Africa in which the feared status of a “failed state” beckons due to ineptitude and corruption.
The courts have long regarded cadre deployment as illegal, invalid and unconstitutional as it is used by the ANC in the public administration and state-owned enterprises. The Chief Justice has confirmed that these judgments are sound law in the State Capture Commission report.
The DA is awaiting judgment from the Gauteng Full Bench in its full-frontal attack on cadre deployment. Judgment in the case was reserved in January, so one can reasonably expect it soon, given that judgments ought not to be reserved for more than three months in the ordinary course of the work of the judiciary.
The case, and the persistence of the ANC in defending what is clearly an illegal practice, are quite extraordinary. The freedom of association that allows cadre deployment to political positions at all levels of government does not apply to the public administration and the state-owned enterprises where “good human resource management and career-development practices, to maximise human potential, must be cultivated” according to section 195(1) of the Constitution which also provides, as Evans correctly points out, that services must be provided impartially, fairly, equitably and without bias.
These are the antithesis of the ANC’s cadre deployment model of governance which is inconsistent with binding constitutional principles.
All politicians in public office are obliged to take an oath of office in which they solemnly swear or affirm that they will “obey, respect and uphold the Constitution”. As cadre deployment in the public administration disobeys, disrespects and does not uphold the Constitution, it is plain that there is a corrupt breach of their oaths of office by all who appoint staff according to cadre deployment rules instead of in accordance with the Constitution.
Even if cadre deployment is ended tomorrow, the challenges of corruption remain.
The essence of the policy of the ANC to appoint cadres in the public administration is to pursue the desired “hegemonic control of all levers of power in society”. This aim is the deeply unconstitutional objective of the National Democratic Revolution and is corrupt.
As Evans points out, it has hollowed out Eskom, leading to interruptions in the supply of electricity in the country. Those let loose by cadre deployments at Eskom have unleashed all manner of corrupt practices which have brought Eskom to its knees and the country to a crisis. Ethics and professionalism are abandoned in favour of revolutionary agendas that do not appear anywhere in the Constitution.
It is to be hoped that the DA’s court challenge will bring an end to fresh cadre deployments.
However, it is also necessary to address the corruption that is ravaging the country, not only via improper cadre deployments but also in kleptocracy (governance by thieves), State Capture (the repurposing of the state to advance private agendas) and grand corruption (the abuse of office for private gain).
Evans has not addressed the need to counter corruption in his piece. Even if cadre deployment is ended tomorrow, the challenges of corruption remain. The ineptitude of which he rightly complains will continue until the corrupt are held to account for their various malfeasances.
A great deal of loot (estimated at between R1-trillion and R2-trillion) has to be raked back and the culture of corruption with impunity has to end in successful prosecutions and the issuing of orange overalls to the corrupt. Until there are successful prosecutions, the temptation to join the ranks of those enjoying impunity for their corrupt deeds will remain. The deterrent effect of seeing “big fish” jailed for corrupt activities is not to be underestimated.
Read more in Daily Maverick: The three four-letter words that should be engraved on every desk in government — ‘rake back loot’
Serious corruption is not going to be successfully countered by wishful thinking and hopeful hand-wringing.
The courts have recognised that without effective and efficient anti-corruption machinery of state there is little prospect of delivering on the promises of the Constitution, particularly those set out in the Bill of Rights.
Indeed, the duty of the state to respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights is at the heart of the reasoning of the majority judgment in the case now known as Glenister 2, in which the binding criteria for successfully countering the corrupt are set out in some detail.
The Zuma administration had no appetite for compliance with the rulings in Glenister 2. The processes of State Capture would not have been a success. Not if specialists trained to take on the corrupt had been housed in an operationally and structurally independent unit that enjoys full resourcing in guaranteed fashion and secure tenure of office (the STIRS criteria). Instead, the Zuma government clung to the Hawks and kept the NPA out of the kitchen of anti-corruption activity.
In August 2020, having dispensed with the services of President Jacob Zuma, the National Executive Committee of the ANC passed a resolution instructing Cabinet to establish, as a matter of urgency, a specialist, stand-alone, independent new entity to counter corruption without fear, favour or prejudice. These attributes accord with the rulings in Glenister 2. The resolution was welcomed as a breakthrough in ANC policy.
When Cabinet did not respond urgently, as instructed, Accountability Now presented draft legislation that puts flesh on the bones of the ANC resolution.
Since 2019 the IFP has been in favour of the proposals made by Accountability Now. The DA embraced them in 2023 and is in the process of preparing a private member’s bill that is broadly true to the structure suggested by Accountability Now.
With three of the four biggest political parties on the same page, one would imagine that there is only plain sailing ahead on the road to constitutionally compliant anti-corruption machinery of state.
Unfortunately, that is not the case. The minister of justice labours under a misapprehension concerning the import of the Glenister majority judgment. He believes that the main judgment of the minority in the case is an exposition of the law that binds the state.
He could not be more wrong, as any senior lawyer in practice could tell him if only he would ask. Instead, he clings to the notion that it is in order to effect the long-overdue reforms by upgrading the Investigating Directorate in the National Prosecuting Authority to what he calls “permanent” status.
Read more in Daily Maverick: Fikile Mbalula does Damascus Road U-turn on disbandment of Scorpions — Cabinet must follow
In effect, he is aiming at introducing a reincarnation of the Scorpions via an ordinary statute. The trouble with this approach is that the Scorpions were easily disbanded when they proved to be a nuisance to Zuma and his friends. A similar fate awaits the retreaded ID.
This is not evidence of secure tenure of office as is required by law. The insistence on keeping the ID in the NPA, which is under the final responsibility of the minister himself, is also not proper compliance with the notion that the anti-corruption body should be free of executive influence, interference and impedance.
Cabinet has ignored the resolution of the NEC for nearly three years and is hell-bent on putting in place an entity that will obviously not pass constitutional muster.
It is to be hoped that Michael Evans will turn his attention to these matters when next he puts his head above the parapet. DM