Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
31 January 2023

ANC cadre deployment will be stopped at the ballot box, not via the courts

It is clear that some forms of cadre deployment are unconstitutional and invalid, and that carefully targeted court action challenging specific instances of such deployments may well be successful. But even this won’t solve South Africa’s endemic governance problems.

Last week the Gauteng High Court heard arguments in the DA’s case challenging the constitutionality of the ANC’s controversial cadre deployment policy — just one of the many recent cases in which political parties and other pressure groups have turned to the courts to deal with a myriad of government failures, including seemingly never-ending rolling blackouts, governance dysfunction, and endemic corruption at every level of government.

While some of these legal challenges may be successful, it would be a mistake to assume that court orders will be effective in fixing rolling blackouts and other governance failures, and in ending government corruption and nepotism.

This is not to say that strategic litigation may not sometimes be effective in checking specific cases of abuses of power, maladministration, and corruption, but rather that deeply embedded systemic failures are not going to be fixed by court orders alone.

The DA’s cadre deployment challenge is a case in point. Even if the DA wins its case and the court declares the ANC’s cadre deployment policy invalid (something that looks far from certain), it may not have a significant impact on the ability of the governing party and its allies to “deploy” selected loyalists into the civil service and other public entities.

Until the emergence of the State Capture narrative, public criticism of “cadre deployment” mostly emanated from people on the right of the political spectrum, sometimes accompanied by accusations that the policy reflected the Stalinist inclinations of the ANC.

It became a catch-all phrase, often used by economically (but no longer politically) powerful people anxious that the ANC would use its political power to transform society and state institutions in ways that would harm elite interests, and would entrench ANC dominance for generations to come while weakening the ability of opponents and critics of the party to “fight back”.

Given this particular history, I remain sceptical of the uncritical use of the term “cadre deployment” as a catch-all phrase to describe any attempts by the governing party and its leaders to influence the appointment of individuals to constitutional bodies, the civil service, and other public entities.

But there is no doubt that some forms of what is now sweepingly referred to as cadre deployment have had a devastating effect on the ability of the state to function effectively, and have played a pivotal role in facilitating corruption and State Capture.

And I must concede that I, for one, had previously underestimated the devastating impact that certain forms of cadre deployment (and abuses of the system) have had on the ability to govern cleanly and efficiently.

It is clear that some forms of cadre deployment are unconstitutional and invalid and that carefully targeted court action challenging specific instances of such deployments may well be successful.

This is so, first, because section 195(1)(i) of the Constitution requires that employment and personnel management practices in the public administration must be “based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation”.

Second, section 197(3) states that “no employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause”. Section 9(3) furthermore prohibits unfair discrimination on any ground, including on the grounds of ethnic or social origin, conscience, belief, culture, language and birth, which is also reflected in employment equity legislation applicable to the public administration.

Lastly, some forms of cadre deployment may also be unlawful and invalid because it would be in breach of either the legality principle or of the administrative law, including the principle that specific classes of decision-makers are not permitted to abdicate their responsibility by acting on the instructions of another person or body.

For example, in the case of Mlokoti v Amathole District Municipality, the Eastern Cape Division of the high court invalidated the appointment of the municipal manager because the Regional Executive Committee of the ANC instructed its members in the council not to appoint the best candidate for the job, but to appoint its preferred candidate instead, thus, as the court explained, usurping the power of the democratically elected council.

But these provisions of the Constitution (and applicable legislation) do not place an absolute ban on cadre deployment as broadly understood. For example, section 195(4) of the Constitution allows for “the appointment in public administration of a number of persons on policy considerations”, on the condition that such appointments are regulated by national legislation.

Moreover, section 197(1), which has often been invoked to justify certain forms of cadre deployment, requires the public service to “loyally execute the lawful policies of the government of the day”.

One reason for the inclusion of this provision in the Constitution was to allay fears of the incoming democratic government that members of the apartheid-era public administration (packed with National Party loyalists) would use their power to derail the implementation of the policies of the ANC government.

The Zondo Commission of Inquiry report into State Capture recognises that the latter provision “cuts both ways” and thus that a balance must be struck between the need to create a professional and non-partisan public administration, on the one hand, and the need to ensure that the administration loyally executes the lawful policies of the government of the day, on the other.

The report further suggests that there would be nothing wrong with requiring that appointees to the public administration have a good understanding of the policies of the governing party, be that the ANC, the DA or any other party that forms part of the government at any of the three spheres of government.

Some version of this kind of cadre deployment (if one can call it that) happens in both ANC and DA-controlled governments across South Africa, especially at more senior levels of the administration. It is not an accident that one would be hard-pressed to find a vocal and influential ANC or EFF member in the senior ranks of the provincial administration in the Western Cape, just as one will not find a vocal and influential DA member in the top echelons of the national administration.

Political parties in government also appoint their own in senior positions in the civil service to distribute patronage to party loyalists. Parties use this kind of patronage to buy loyalty and to attract ambitious new members to the party, which is why governing parties who lose power (and therefore access to patronage) often implode — which is one reason why the ANC in the Western Cape is only a shadow of its former self.

I also wonder if the reason the DA remained a relatively disciplined and coherent party until it lost electoral ground in 2019 is partly because these losses made clear that the party would not be in a position to gradually unlock more patronage opportunities to benefit loyal party members.

Some version of this kind of patronage politics happens in many democratic systems (although it is not usually branded as cadre deployment), and does not necessarily pose a great risk to the integrity of the system.

Moreover (and this is an important set of caveats), as long as the party or coalition of parties in government changes from time to time and as long as appointees are more or less equipped to do the jobs they have been appointed to do, the system is not egregiously unfair to citizens who wish to work and advance in the public administration.

If I am correct, the problems now widely associated with cadre deployment (endemic corruption, the collapse of service delivery, and the broader collapse of the state) cannot be fixed merely by invalidating the ANC’s cadre deployment policy. This is so because even in the absence of a cadre deployment committee, the party will continue to be able to exert an outsized influence on the appointment of individuals to the public administration and other public institutions — at least for as long as it retains its electoral dominance.

Because the party uses various forms of lawful and unlawful patronage to keep it in power and its allies and donors onside, the party must ensure that both the lawful and unlawful deployment practices continue as its survival depends on it.

The same holds true for regional or local power brokers within the party. Even if the national leadership of the ANC instructs its members in government to only appoint competent and honest individuals, it would not be in the interests of party leaders at lower levels of government to adhere to such an instruction.

In any event, the national leadership of the ANC has little influence over the practices of its allies and partners who perpetrate some of the most egregious and destructive forms of cadre deployment.

For example, a 2015 ministerial task team report on the selling of educator posts uncovered evidence of serious problems with the appointment of often underqualified or inept principals and other senior staff at some schools, particularly at schools where Sadtu has a strong presence.

While few of the cases uncovered by the task team involved the payment of bribes, the task team found evidence of collusion between union officials and government officials in the appointment of principals and other senior staff at some schools. These kinds of cadre deployments are devastating, but they won’t end if the ANC policy is declared invalid.

For all these reasons, even carefully selected court action may do little to address the endemic governance problems which are perhaps too simplistically linked to the abuses associated with the ANC’s cadre deployment policy.

What is required to even begin to fix the problem is for citizens to hold the ANC politically accountable for these failures at the ballot box and elsewhere.

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