By Paul Hoffman

The longing for comprehensive control of all levers of power, of which cadre deployment is a central pillar, is what prevents the ANC from reforming the criminal justice administration in order to render it constitutionally compliant.

0:00 / 9:32BeyondWords

The announcement that cadre deployment in the public sector is to be dispensed with is the most welcome development in politics in years.

The announcement is contained in the National Framework towards the Professionalisation of the Public Sector, which was approved by Cabinet on 19 October 2022, it has wholesale adopted the DA’s policy to abolish cadre deployment and replace it with merit-based appointments throughout the public sector.

The pernicious practice of cadre deployment is one of the main planks of the National Democratic Revolution (NDR) which is the driving force behind the policies and practices of the ANC-led alliance which has enjoyed an ever-dwindling majority in national government since the dawning of the democratic era in SA.

The overall goal of the NDR is to secure hegemonic control of all the levers of power in society. This goal is at odds with the constitutional dispensation in place. Its inconsistency with the tenets of constitutional democracy under the rule of law has led to many reverses for government in litigation impugning the constitutionality of a wide variety of laws and policies which the ANC has tried to put in place.

That longing for comprehensive control of all levers of power is what prevents the ANC from reforming the criminal justice administration in order to render it constitutionally compliant.

The Constitutional Court envisages, in binding terms, prosecutors and other anti-corruption personnel adequately independent of the executive and of political influence or interference. The Constitutional Court has set the criteria applicable to corruption fighting in loud and clear terms. The revolutionaries cannot muster the political will to do what is needed to counter corruption and mend the criminal justice administration because too many of them will be on the receiving end of accountability for corrupt activity.

The State Capture Commission identified the practice of cadre deployment as central to the processes of the capture of the state and recommended that its illegality and unconstitutionality should lead to its termination forthwith.

It ought to be obvious that deployed cadres feel beholden to the cadre deployment committee that was responsible for their appointment. Doing the bidding of cadre deployment committees rather than implementing the lawful policies of the government of the day has led to paralysis, poor service delivery and a general inability on the part of the state to respect, protect, promote and fulfil the human rights guaranteed to all in the Bill of Rights which is Chapter Two of the Constitution. The conflict of interests is apparent, harmful, unmanageable and incurable.

Constitutionalists in SA have long complained of the illegality of cadre deployment, James Myburgh, editor of Politicsweb, wrote an essay on the topic which is worth revisiting today.

In it, Myburgh refers to the work of American academic Leonard White who tackled the topic in 1924. Myburgh notes that:

“White quoted with approval a memorandum submitted by lower-level civil servants to the British Royal Commission on the Civil Service in 1915. It stated:

“‘The civil service is becoming more and more the indispensable servant of the community, and it is the business of the community to ensure that all who serve it are appointed on the score of capacity and character alone, and that those who reach the highest posts in the service shall do so by virtue of ability and merit. The inevitable result of any shortcoming in these matters will be weakness and failure.’”

White’s own views on the topic we know as cadre deployment are no less trenchant:

“[It is] reflected in poorly-built highways, which crumble under modern traffic conditions; in shoddy goods and worse than amateur service in state institutions, which should operate solely on the basis of public trustee for unfortunate or subnormal members of society; in high infant mortality rates and unnecessary suffering among those most dependent on the public service; in lax and fumbling enforcement of the law and in the sacrifice of the interests of the state or municipality. It is as unnecessary as it is impossible to translate these losses into dollars and cents; but it is as necessary now as ever before to insist that these losses are real and preventable.”

Myburgh’s long campaign against cadre deployment, or what he calls “The monster we should have strangled at birth”, would appear to be coming to fruition, not a moment too soon.

The DA, which is engaged in public interest litigation against both government and the ANC to have cadre deployment declared illegal and unconstitutional, has welcomed the announcement of the ending of the practice.

The announcement is a long overdue reform by the leadership of the ANC. Both the president and chairperson of the ANC gave evidence before the State Capture Commission in 2021 during which they stoutly defended the established practice of cadre deployment. Their attempts to characterise the work of cadre deployment committees at Luthuli House as the formulation of mere recommendations fell flat when minutes of meetings presided over by Deputy President DD Mabuza surfaced at the commission and demonstrated that the “recommendations” are considered by the ANC leadership to be of a binding nature.

Worryingly, the President must have known of the decision of Cabinet when he faced the nation on television to give his response to the recommendations of Chief Justice Raymond Zondo in the report of the State Capture Commission, yet he made no mention of it; indeed cadre deployment was not raised at all by the President despite its centrality to the response to the commission and to the trajectory of the ANC.

In his formal 76-page response to the SCC, one waits until page 66 to read:

“6.2 Professionalisation of the Public Administration.

“6.1.1 A key mechanism of state capture was the strategic positioning of individuals in positions of power through the abuse of public sector appointment and dismissal processes. This was in contravention of the Constitution and applicable legislation.

“6.1.2 An important instrument to address this issue is the National Framework towards the Implementation of Professionalisation of the Public Sector, which was adopted by Cabinet on 19 October 2022. The Framework makes specific proposals to stabilise the political/administrative interface, ensure merit-based recruitment and selection and more effective consequence management. All public sector legislation governing professionalisation will be reviewed and, where necessary, amended to align with this Framework.”

At this stage, it is difficult to determine how exactly the Cabinet decision will be implemented via the legislative processes envisaged by the president for the 2022/23 period. Will all cadre deployments be set aside as illegal and unconstitutional as happened in the Mlokoti vs Amathole District Municipality case?

Will the new policy only be implemented prospectively in relation to new appointments? Will there be a (much-needed) review of the merit of existing appointees in key positions? Will the state’s obligations to respect and protect human rights be given the priority it deserves with the merit-based new public sector fixing that which is broken, be it the electricity and water supply systems, the leaking sewers, dilapidated hospitals, schools and so on?

The president has pronounced a commitment in favour of honest and trustworthy public servants, which is a good start. The devil will be in the detail.

It must surely be so that the government has been advised that the DA litigation impugning the constitutionality of cadre deployment has merit and that its prospects of successfully defending it are slim. The DA has wisely decided to insist on getting a court order in the pending litigation, even if by consent, now that government has revised its position on cadre deployment.

It has long been clear to keen observers that the NDR is, in many respects, deeply and darkly unconstitutional. Those who pursue the NDR with zeal do not regard the National Accord which led to the adoption of the Constitution as our supreme law to be binding on them. They view the Constitution as a “beach head” from which to launch further revolutionary activities with the aim of achieving that elusive hegemonic control of all the levers of power in society.

When that occurs the state and the controlling party will be collapsed into one and the revolution will prevail over the Constitution. The inconsistencies between the revolutionary and constitutional agendas have been described before.

The new stance of Cabinet on merit appointments in the public sector is likely to attract the attention and interest of the gathering of ANC cadres who will meet at Nasrec in December to elect the new leadership of the ANC.

A good number of them will be beneficiaries of the current cadre deployment system with personal agendas to pursue. A lively debate is likely. DM

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