Zondo commission’s recommendation that cadre deployment be dropped is backed by the courts
31 August 2022 – 21:00
There is confusion in political circles regarding the status of the recommendations of the Zondo state capture commission. The leader of the opposition regards them as binding, while the president does not.
Any commission of this nature is established to help the executive branch of government unravel a disputed and complex factual matrix (think arms deal, the Marikana massacre or the SA Revenue Service capture), make factual findings and give its recommendations to government for consideration. Generally speaking, both the factual findings and the recommendations are not of a binding nature. The government may accept, reject or modify recommendations made as part of its functions in setting policy, making laws and running the country.
In the case of the recommendations of the Zondo commission concerning the abolition of cadre deployment in the public service and the state-owned enterprises (SOEs), there is an exception to the general rule that recommendations do not bind. The question of the lawfulness and constitutionality of the ANC cadre deployment practices came up for consideration in the high court in the matter of Mlokoti vs Amathole District Municipality. The court decided that the appointment of a municipal manager at the instance of an ANC cadre deployment committee was not constitutional and set the appointment aside.
The ANC did not appeal the decision, which is binding in the Eastern Cape and of persuasive authority throughout the country. Instead of appealing the ANC pretended that its cadre deployment committees only make recommendations. This pretence was unmasked when the minutes of some meetings of the national cadre deployment committee were made public by the Zondo commission. Its recommendation that cadre deployment be dropped is backed by the court findings in Mlokoti’s case and can therefore be regarded as binding.
The whole matter of the legality of cadre deployment is the subject of pending litigation brought by the DA. While cadre deployment to positions in politics is unexceptionable, it is likely that the DA will win its case impugning the practice in the public service and the SOEs.
Paul Hoffman, SC
Director, Accountability Now