The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
Anyone who has ever watched the classic BBC TV series Yes Minister and Yes Prime Minister, would know that a completely impartial civil service might be more of an ideal one ought to strive for than an actual reality that is always achievable. Either the civil service is fatally politicised in which case political decisions always override decisions based on common sense and efficiency, or the civil servants run the show, in which case they make decisions that are in the best interest of the civil service (rather than the country).
Set principally in the private office of a British government cabinet minister in the (fictional) Department for Administrative Affairs in Whitehall (the sequel was set in the Prime Minister’s offices at 10 Downing Street), the series follows the senior ministerial career of The Rt Hon Jim Hacker MP, played by Paul Eddington. His various struggles to formulate and enact legislation or effect departmental changes are opposed by the will of the British Home Civil Service, in particular his Permanent Secretary, Sir Humphrey Appleby, played brilliantly by Nigel Hawthorne. His Principal Private Secretary Bernard Woolley, played by Derek Fowlds, is usually caught between the two.
Well the South African Constitution attempts to address this difficult problem. Section 197(3) of the Constitution makes for interesting reading. This section states that: “No employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause.” This section must be read with section 195(4) which states that some members of the public service could be appointed “on policy considerations” although legislation must regulate such appointments.
This means that the Constitution requires the civil service generally to be non-political, but that it also allows the appointment of a small number of individuals in strategic positions at a senior level for political and policy reasons. It therefore attempts to strike a balance between the need for an impartial and non-political civil service on the one hand, and the need to employ policy advisors and senior civil servants who would actually share the political views of the incumbent party and would enthusiastically ensure the effective implementation of the policies of the incumbent political party.
Where a political party loses a national or provincial election, the incoming administration would therefore generally be prohibited from firing civil servants merely because they were appointed by the outgoing administration or merely because they share the views of or support the political party who governed the country or the province until their defeat at the last election. While strategic “cadre deployment” in the civil service would therefore usually be permissible, it would usually not be permissible to fire the “deployees” of the outgoing government merely because they do not share the views of the incoming administration.
Of course, this does not mean that political parties do not ignore the provisions of section 197(3) and that the civil service has not been politicised to some degree. Because it is often very difficult to prove that someone was appointed for political reasons (even to a “non-political” post) and because most applicants for jobs in the civil service only apply for those posts if they broadly support the political party governing the country or the province where they seek employment, these cases seldom come before the courts.
This is why the CCM arbitration award handed down in December in the case of Thonono & 12 Others v Department of the Premier: Western Cape Provincial Government is of some interest. It reminds us of the general principles which are not always honoured by either one of the two major political parties.
In this case the incoming DA administration in the Western Cape (taking over from the ANC) decided to terminate the contracts of several individuals appointed by the ANC administration. They claimed this was allowed because the contracts actually allowed for a unilateral termination and, alternatively, that this was done for operational reasons (because the posts in which these people served were abolished by the new administration).
The CCMA confirmed that clauses in fixed term employment contracts which allows for the automatic dismissal of employees were not valid as these purported to allow the parties to an employment contract to amend the provisions of the Labour Relations Act. If this was allowed then an employer would be able to force an employee to waive his or her constitutional and legislative employment rights by entering into a certain type of employment contract.
This would be against public policy, because employers are usually in a stronger position than employees and could then force new employees to waive their employment rights by signing contracts that would take away all or most of the legal protection afforded to employees by the labour law.
But, the CCM award also confirms that political decisions to terminate the employment of employees appointed by the outgoing administration which was controlled by another political party would usually not be allowed. It stated in this regard as follows:
The decision by the new political leadership not to honour the contracts of employment for the full duration of the fixed term contract of employment, i.e. until 30 June 2011 must surely be tested to be in compliance with both section 185 (the right not to be unfairly dismissed) and section 188 (that any dismissal, in order to be fair, must be based on incapacity, misconduct or operational requirements and in accordance with a fair procedure). It can most certainly not be left for a political .party or leader to make a political decision at the expense of the concept of fair labour practice, which is a constitutional right accorded to all employees.
The CCM also rejected the argument that because Premier Helen Zille had decided that the jobs done by these employees were going to be abolished this in itself could justify the termination of their employment. One could, of course, prove that for operational reasons a certain job has become redundant and then a person’s employment could be terminated if this was done ina procedurally fair manner.
One cannot make a political decision that a certain job would be abolished (without proof that it was indeed operationally required to abolish this job) and then justify the firing of the person holding that job. If this were to be the case, every time the ANC or the DA took over a provincial government of a province or the governing of a municipality it would just be able to make a political decision that those jobs held by appointees of the previous administration would be made redundant in order to get rid of all the employees which did not support their political party.
Although the CCM does not make a finding on this, the employees in this case obviously believed that they were really fired by the incoming DA administration because they were ANC appointees. In other words, there might have been some cadre deployment (of the DA kind) happening here. The CCM rejected this kind of cadre deployment and stated as follows:
I have great difficulties in agreeing with Adv. Stelzner’s submissions that the applicants’ dismissal were substantively fair simply on the basis that the termination came about as a result of the decision taken by the Premier and cabinet. No substantive evidence whatsoever was led as to why it was necessary for this decision to be taken prior to the expiry of the applicants’ fixed term contracts of employment. Political decisions need to be taken keeping in mind the right of employees to fair labour practices and more specifically the right not to be unfairly dismissed. On the evidence placed before me I do not believe that, other than the decision being a political one, there was a substantively fair reason for the applicants’ dismissals. I do acknowledge the right that an employer has to restructure its business, but the reasons for restructuring needs to be tested against the requirement of fairness.
Of course the DA will probably not like this CCMA finding, but in principle it should welcome it as it reaffirms the general principle that politicians should not be allowed to fire civil servants merely because they do not share the political views of the incumbent party (which, except in the Western Cape and in some municipalities) would be the ANC. This decision could therefore be viewed as an anti-cadre deployment decision.
If a DA city council (in Cape Town or elsewhere) were to lose the local government election in April and the ANC were to win back a municipality from the DA, the principles reaffirmed in this award would come in handy for DA appointed civil servants. Obviously if the DA won over municipalities now governed by the ANC the same principle would apply. But that is the thing with a good human rights principle: it applies to everyone and binds everyone (whether they are DA or ANC); it protects individuals from the abuse of power – no matter whether that power is exercised by the ANC, the DA or some other political party.
That, so it seems to me, is a good thing.BACK TO TOP