Our highest court has decided that the interests of justice are served by closing its doors on the efforts of the ANC to keep confidential its cadre deployment decision-making records for the period during which then deputy president Cyril Ramaphosa chaired the Luthuli House-based national cadre deployment committee of the ANC.

The ANC has five days, calculated from Monday 12 February, to disgorge the records of all kinds to the DA. 

Its chairperson, Gwede Mantashe, has told Parliament that this will be done – but its president, Cyril Ramaphosa, has told the Zondo Commission on oath that no minutes were kept when the committee met under his chairpersonship.

There is, however – contradictorily so – explicit reference to such minutes in the minutes of the first meeting chaired by his successor as chair, former deputy president DD Mabuza.

A frisson of excited anticipation is abroad in the land. Time will tell what the records reveal and their extent. The excuse that “the dog ate my homework” does not appear to be available.

Take for example the exchange in the Sona debate reported as follows in the Mail & Guardian:

“In a direct attack on Ramaphosa, he [leader of the official opposition John Steenhuisen] said this week’s Constitutional Court order, which effectively compels the ANC to hand over the record of every decision made by the ANC’s cadre deployment committee since January 2013, would show that the president, at best, did nothing to stop appointments that furthered the State Capture project under former president Jacob Zuma.

“ ‘The DA expects the ANC to abide by this ruling to expose its dirty cadre secrets and how Mr Ramaphosa’s committee laid the foundation for State Capture and the subsequent collapse of service delivery’,” he said.

“Mantashe countered that the ANC would hand over the records but would not relinquish the contentious policy.

“Confusing constitutional imperatives and affirmative action with cadre deployment, he said, was the reason there were black judges on the bench and black heads of department in government.

“‘We will continue to appoint capable people’.”

Daily Maverick reported this in more detail, quoting Mantashe as saying “cadre deployment has changed the reality where every DG [director-general] was a white man, where every judge was a white male, where every mayor was a white man… Run to court, do whatever… You will get your report, but we will continue to deploy people who are capable.”

That there is confusion is beyond doubt.

Look no further than the op-ed by Prof Pierre de Vos of UCT in Daily Maverick of 13 February 2024: “The ANC government – not cadre deployment – is at the crux of SA’s corruption cancer”, which I found perplexing.

It is preferable to picking his points apart painstakingly to state, with reference to judicial authority and the Constitution, what is and is not allowed when it comes to the appointment of personnel in the public administration and in state-owned enterprises.

By the way, there can be no cavilling at cadre deployment in political positions at national, provincial and local levels of government in South Africa. 

All political parties enjoy freedom of association and they are entitled to insert the names of their loyalists on the party lists that are submitted to the Electoral Commission of SA.

The voters then decide whether to vote for those on the list by supporting the party in question, or to vote for an independent candidate, or, at local level, for the ward councillor of their choice.

The Bill of Rights in sections 18 and 19 of the Constitution makes these points uncontroversial.

Public administration

On the other hand, the basic values and principles governing public administration are set out in Section 195 of the Constitution. 

Relevant for present purposes are sub-sections (d), (h) and (i) which require that services must be provided impartially, fairly, equitably and without bias and that “good human-resource management and career-development practices, to maximise human potential must be cultivated” in a public administration which “must be broadly representative of the SA people, with employment and personnel management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past to achieve broad representation” [note: not party loyalty in any way, shape or form].

These principles apply to administration in every sphere of government, organs of state and public enterprises as set out in Section 195(2).

The only possible exception is that contained in Section 195(4) which contemplates the appointment of a number of persons on policy considerations under national legislation that must regulate these appointments.

This exception is to accommodate special advisers to policymakers, those who have a keen appreciation of the development of the constitutionally compliant policy of the party that appoints them as public servants, not as duly elected politicians who reach office via being elected to represent “we, the people”.

Not surprisingly, the practice of cadre deployment has been and is being considered by the courts. The Zondo Commission has already nixed it, but its recommendations are not binding in law.

Before the end of this month, it is expected that the full bench of the Gauteng High Court will rule in the application the DA has launched to have cadre deployment practices declared illegal, invalid and unconstitutional across the board.

The Mlokoti case

The Eastern Cape High Court considered the same issue in relation to a single cadre deployment of a municipal manager in 2008 in the Amathole District Municipality. The same legal principles apply; the legal precedent set by Judge JD Pickering is likely to be followed, or at least dealt with when the imminent judgment is delivered.

What happened in the Mlokoti case was that the position of municipal manager was vacant; Mlokoti was the best candidate but the ANC’s relevant cadre deployment committee did not want a PAC member in the position and insisted on a cadre deployment. 

Mlokoti took the decision on judicial review and it was reversed by the court by nullifying the cadre deployment and replacing the cadre with Mlokoti.

While it is arguable that an honest cadre deployment committee will seek to appoint those whom Gwede Mantashe refers to as “capable people”, the pool of talent from which the cadre deployment committee draws its appointees is limited to loyal cadres of the National Democratic Revolution (NDR).

These cadres are members of a political party or alliance which has purported to govern at national level for 30 years. The membership of the ANC is around one million, in a population of roughly 60 million.

Finding “capable people” in such a small pool of potential deployees of the NDR is the devil’s own work. 

Deleterious consequences are inevitable, as is borne out by the falling levels of service delivery in the municipalities, the inability to keep the lights on and the water supply flowing in quantities of potable quality. 

Prof De Vos is quite right to finger corruption as the underlying problem.

Cadre deployment has another dimension. 

A loyal and competent public administration is meant to objectively serve the people of SA by implementing the values of the Constitution and by respecting, protecting, promoting and fulfilling the rights guaranteed to all in the Bill of Rights. The state must do so under Section 7(2) of the Constitution.

A deployed cadre is meant to serve the NDR. One of the main purposes of the NDR is to secure hegemonic control of all the levers of power in society. State Capture is simply a manifestation of this striving for hegemonic control.

The corruption follows from the debased and unconstitutional notion that comprehensive control of society is a legitimate purpose of government via cadre deployment. Nothing could be further from the true aspirations of constitutional democracy under the rule of law.

Cadres do not recognise the separation of powers; they resist checks and balances on the exercise of power and they resent an independent media and impartial judiciary.

Cadre deployment forms no part of the project to create a better life for all in the manner contemplated by the Constitution. This point has been made in detail only 25 years after apartheid ended and constitutional democracy began.

Cadre deployment still has its defenders.

The ANC was obviously well-advised not to appeal the Mlokoti judgment. Yet cadre deployment continues. 

The pretence of merely making a recommendation to the appointing authority is put up by the ANC (via its then spokesman Zizi Kodwa, now minister of sport) to disguise the inwardness of what is happening behind closed doors in cadre deployment committee meetings.

This pretence will be unmasked when the documents are made available.

The Mabuza-era documentation already reveals that recommendations made are of the binding kind and are ignored by appointing authorities at their peril. It is likely to have been the same on Ramaphosa’s watch.

The contentious and counterproductive policy of cadre deployment is in breach of Section 195 of the Constitution and should be jettisoned by the ANC, together with its outdated ideology that informs the NDR.

If it is not, the voters of SA will have to decide whether they wish to continue to be governed by those who do so by sleight of hand and as corruptly as the ANC has done for 30 years. DM