Paul Hoffman: Constitution ignored as cadres swim in the pool of public enterprise

by | Jul 19, 2020 | General | 0 comments

by Nadim Nyker

In January, before the blanket of the pandemic settled on South Africa, President Cyril Ramaphosa seemed on track to end political patronage in the country. In his weekly newsletter, CR stated his commitment to stop “the practice of poorly qualified individuals being parachuted into positions of authority through political patronage,” noting consequences for state officials “who do not do their work”. Also known as cadre deployment, under-skilled members of the ANC have occupied positions in state-owned enterprise and public administration, plainly based on their network and loyalties for decades. These appointments, as expanded on by Paul Hoffman, are highly unconstitutional and are the driving force behind a failed state,  economy. What’s more: A ‘top secret’ 45-page document has fallen into the hands of the DA, where these Lenin-based ideals, which resonate with the National Democratic Revolution are hatched in a plan to re-envisage a new way of governing. CR’s plan may have been pushed off course by the pandemic, but is it enough to foment a coup? That’s a question Hoffman, a lawyer, raises in this piece. – Nadim Nyker

By Paul Hoffman*

Cadre deployment in the public administration is illegal and the National Democratic Revolution is unconstitutional.

The content of a mysterious 45 page top secret document that was leaked to the DA by a public servant has given rise to a great deal of controversy. The document is called “top secret” because it envisages a whole new way of governing provinces and municipalities, matters that are regulated by the Constitution, our supreme law. Those who are sworn to uphold the Constitution by reason of the political positions they hold would be playing with fire to be associated with the ideas in it, some of which border on the seditious.

Three points need to be made at the outset:

  • Cadre deployment in the public administration, and indeed in the SOEs, is illegal
  • The striving of the ANC’s “national democratic revolution” for hegemonic control of all the levers of power in society is deeply and darkly unconstitutional as well as a less than effective and efficient way of governing the multi-party constitutional democracy under the rule of law in place in SA since 1994.
  • The ANC is riven with factions; the two largest of these are led by the President and by his COGTA minister Nkosasana Dlamini-Zuma respectively. There is also a unity faction led by the Deputy President and many more patronage networks in cities and towns controlled by the ANC led alliance.

An examination of the facts rather than speculation and supposition reveals that not everyone in the ANC is singing off the same hymn sheet.

In January President Cyril Ramaphosa let it be known in his weekly newsletter that:

“We are committed to end the practice of poorly qualified individuals being parachuted into positions of authority through political patronage. There should be consequences for all those in the public service who do not do their work.”

That commitment is a salutary one, admittedly made before the pandemic wrought havoc in governments around the world, because, if implemented, it would serve the constitutional imperative that effective and efficient use of resources (including human resources) is required in the public administration and the SOEs.

It is simply not possible for a government to be administered by cadres of a party with a grand total of less than 1 million members, most of whom have minimal education (due to the dysfunction in the education system and the ravages of apartheid), when the population of the country is close to 60 million. The pool from which to draw “properly qualified individuals” who also happen to be loyal cadres is simply too small. That is why the President complains of “poorly qualified individuals”.

Read also: Why is SA economy shrinking? Blame it on the Soviet-inspired NDR – Anthea Jeffery

It appears the Constitution has been, and still is, routinely ignored and flouted by the governing alliance’s delinquents to effect the deployment of loyal “cadres” in the public administration and the state-owned enterprises (SOEs). That loyalty, which is to the pursuit of the National Democratic Revolution (NDR) and not to implementation of the Constitution, was easily transmogrified into the state capture project’s “parallel processes” run by the ANC’s Jacob Zuma faction (to which NDZ belongs) from Luthuli House with ample support from the executive and legislature. The Secretary General and his deputy are both members of this faction. Their record of public service is marred by the revelations in the “Gangster State” expose by Pieter Louis-Myburgh and a chequered career involving allegations of driving and crashing without a licence, nepotism and corruption (see the views if Irvin Jim here)

The question now is whether the president was signalling the end of these Luthuli House sponsored forms of cadre deployment and has been overtaken by fresh plans hatched and recorded in 45 pages after the pandemic hit our shores. A clue as to what is going on was given by NDZ at a media briefing on 25 April (when earlier drafts of the contentious document were apparently in existence already). NDZ revealed that the pandemic:

“…also offers us an opportunity to accelerate the implementation of some long agreed upon structural changes to enable reconstruction, development and growth. These opportunities call for more sacrifices and – if needs be – what Amilcar Cabral called ‘class suicide’ wherein we must rally behind the common cause.”

These sentiments are not the incoherent mumblings of a frustrated ideologue; they are the seriously expressed intent of a person who came within 179 votes of succeeding her ex-husband as president of SA. They also reveal a commitment to the ideology behind the National Democratic Revolution devised by Lenin, one still dreamt of by some in the ANC, despite their failure to launch it in more than 25 years in national government in SA and despite the failure of the underlying ideology wherever it has been tried in the world.

It is critical to note that the ideology underpinning the NDR is clearly and obviously at odds with the constitutional values of the land. The minister’s sentiments fly in the face of the transformation of SA into a constitutional democracy under the rule of law.

In order to implement the values of the NDR in a legal manner a 75% majority in parliament is required; any other means of doing so would be truly “revolutionary” and accordingly illegal. All of the many transformation projects allowed by and falling within the parameters of the Constitution, our supreme law, do not involve revolution inspired “class suicide”. This less than constitutionally pure stance of some in the ANC has also been pointed out previously, here.

The minister’s quoted sentiments betray her flirtation with authoritarianism, socialist hegemony and radical economic “transformation” aka seizure of complete control of all the levers of power in society. (In society, mark you, not just in government).

The DA is calling the secret document a blueprint for a “coup d’etat”, but the strategy and tactics of the ANC are to proceed with “dexterity in tact” with due regard to the “balance of forces” at any given time. The balance of forces may have been upset by the pandemic, but, hopefully, not enough to foment a coup.

The Constitution requires the cultivation of good human resource management practices in the public administration and SOEs. It also requires cabinet members not to act in any way that is inconsistent with their office or exposes themselves to the risk of a conflict between their official responsibilities and their private interests. Nor may they improperly benefit any other person.

Their oaths of office require them to uphold the Constitution, not undermine it with the deployment of unsuitable and under-qualified cadres.

Cadre deployment has been declared illegal in the High Court. There was no appeal against this finding, rightly so. The case was one in which the deployment of a cadre as municipal manager in the Amathole District Municipality was overturned. Meritocracy prevailed when the best candidate who had applied for the job impugned the constitutionality and legality of the cadre deployment. He was awarded the position the cadre had been illegally appointed to occupy.

The aims of the national democratic revolution are radically at odds with the requirements of the Constitution. The revolution may be regarded as a “private interest” of those who subscribe to its eternally unsatisfied longing for hegemonic control of all the levers of power in society.

It is no wonder that the Zuma state capture project nearly succeeded and may yet do so. President Cyril Ramaphosa is also a “revolutionary”, but he has identified (at least as advised in January) the need to put a stop to the parachuting practices in the public administration and the state owned enterprises.

The need for transformation of outmoded deployment practices in the public administration must be taken seriously by the ANC deployment committees (chaired by the deputy president) who are the authors of the pervasiveness of cadre deployment in state owned enterprises (think Brian Molefe at Eskom, Lucky Montana at Transnet) and the public administration (think Bheki Cele and Riah Phiyega in the police, Mo Shaik and Menzi Simelane in human settlements and previously in the SSA and NPA respectively). When Simelane was appointed to lead the constitutionally independent NPA he gaily announced that he was going to implement “the vision of the ANC” for the NPA, treating the Constitution as irrelevant to his plans. Prosecutors worth their salt who valued their independence fled.

It is the ANC led alliance which has been in power at national level since 1994 that is responsible for these illegal practices, including the “hollowing out” of the NPA. By all means deploy cadres in politically elected office, but do not break the law and flout the Constitution by deploying cadres in the public administration and in state owned enterprises.

Cadre deployment of a most nefarious kind is at the heart of the forms of state capture that have been exposed for public scrutiny in evidence before the Zondo Commission and in the last report of the previous Public Protector, Advocate Thuli Madonsela: her “State of Capture” report.

The essence of the problem is that cadres are meant to serve the aims of the NDR, and not those of the public (by behaving accountably and responsively) as required by the Constitution. The implementation of the values, precepts and principles of the Constitution is what the public is entitled to expect of the state, not the pursuit of the revolutionary agenda of the NDR which has brought the state to its knees, the economy to recession and the poor people (over half the population) to the brink of starvation.

It has long been the policy of the ANC, as governing party, that safe party hands should be placed on all of what it calls “the levers of power” in society. This is with a view to establishing a hegemonic form of control of the state which is startlingly at odds with the notion of multi-party democracy under the rule of law, which is at the heart of our current constitutional dispensation.

The “unity in diversity” contemplated in the Constitution and “hegemonic control” make strange bedfellows. The latter is however one of the central tenets of the NDR which the ANC ideologues and dogmatists pursue relentlessly with a view to merging party and state.

If the fallout generated by the “State of Capture” report of the Public Protector and the Zondo Commission brings an end to the inevitable abuses that follow from loyalty to party displacing loyalty to country, it will not be a moment too soon.

The ANC has resorted to the stratagem of saying that its cadre deployment committees do no more than make recommendations to the state and the SOEs. This is a facile attempt to avoid the consequences of the essential illegality of the practice. As the recommendations are invariably followed it is a stretch to call them “recommendations”.

“Cadre deployment” is one of the methods by which the ANC led alliance seeks to achieve the goals of its “revolution”. This “revolution” is neither national, nor democratic (in the constitutional sense), nor a revolution, in that the alliance in government should have no need to pursue a revolution when it is able, by its democratic majority and through peaceful non-revolutionary means to bring about the changes in policy desired by the people who voted for it.

In order to create hegemony by ending multi-party democracy under the rule of law, with the concomitant separation of powers and independent institutions functioning openly, accountably and responsively, the ANC will have to muster a 75% majority in parliament to do so legally, or it will have to foment a revolutionary change of the kind feared by the DA that will bring down the wrath of the UN, the AU and the people of SA on it.

In South Africa’s post 1994 constitutional democracy the ANC dominated tripartite alliance has consistently utilised the practice of cadre deployment in the public administration despite its illegality. At present the ANC, SACP and COSATU co-operate closely, albeit somewhat fractiously, at all levels of government. Of course, cadre deployment can work at some levels, provided competent cadres are chosen and recognise the supremacy of the Constitution. Therein lies the rub. As long as loyalty to party (or “movement” as some still call it) trumps loyalty to the state, problems are inevitable.

Many senior civil servants are overtly members of the ANC and help keep its structures in place by running branches and canvassing support for ANC policies in their spare time. One former director general, Mzwanele Manyi, even simultaneously headed a lobby group, without due regard for the conflict of interests this involves.

The blurring of the bright lines between party and state through public service “cadre deployment”, which the High Court has struck down as illegal, has prejudicial consequences for the promotion of constitutionalism. Professor William Gumede, author and learned analyst and all things ANC, has pleaded publicly for the modernisation or adaptation of the ANC’s cadre deployment system, suggesting that our Planning Commission and National Development Plan will fail if this is not done. He points out that the cadre deployment committees of the ANC which function at national, provincial and local levels are riven with factionalism. This leads to less than satisfactory outcomes when the favourites of the dominant faction at any given time are not the best, or even appropriately, qualified candidates. The party structures elbow aside the legally created systems for the appointment of personnel in the public administration and the undermining of those who are supposed to be in authority is then likely to occur, and does. The appointees regard themselves as the deployed cadres of the ANC rather than public servants and do not answer to anyone other than the alliance deployment committee that appointed them. Many mayors and even premiers have learned this, to their detriment. The fact that cadre deployment continues after the High Court has characterized it as illegal and unconstitutional is indicative of how far the ANC has strayed from the rule of law and the constitutional requirements for good governance. The leaked document that has raised the DA/DM furore is simply further evidence of this tragic fact.

Ismail Lagardien has also made a plea for the modernisation of the ANC in a contribution recently made to the Daily Maverick.

The public administration provided for in the Constitution should exist to render services at national, provincial and municipal spheres to all people in a manner which is impartial, fair, equitable and without bias. It must loyally execute the lawful policies of the government of the day. Everybody, including directors general, is entitled to fair labour practices. Good human resource management and career development practices must be cultivated for public servants. These requirements are the antithesis of the ANC’s cadre deployment model of governance which is inconsistent with binding constitutional principles and the values set out in Chapter One of the Constitution itself.

It is up to the public of South Africa to claim its entitlement to a government in which constitutionally guaranteed human and other rights are upheld and accountability is respected. A sound constitution is useless unless it is fully applied in the daily lives of all of the people and the institutions of state bound by it. The state can hardly respect, protect, promote and fulfil the guaranteed human rights of all, as it must do in terms of the Bill of Rights, if deployed cadres are instead pursuing an imaginary/impossible revolution without regard to their constitutional responsibility to perform their functions in government (not revolution) diligently and without delay. Oversight by the loyal opposition and corrective litigation ought to keep the public administration on the straight and narrow path that the Constitution lays down for it.

At the root of many of the problems facing our country at present is a lack of appreciation of the difference between party and state. Indeed, state capture is, in a sense, the collapsing of the state into the party. This process conflicts with most constitutional principles of a multi-party democracy under the rule of law. It is pure NDR-speak.

Those driving the various campaigns for reform or a new social compact in SA need to renounce the revolution for its inconsistency with the Constitution. They need to point out that the perpetuation of the “cadre deployment” practices after they have been declared illegal in court is intolerable and contemptuous of the court findings. If they do not, their role will sadly be reduced to that of yet another faction within the ANC led alliance. The ANC itself should abandon the NDR.

The constitutionally compliant exercise of powers and duties of the public administration ought to be aimed at improving the lot of all people. Impartial public servants should be a given, not an exception. “Cadre deployment” should be discontinued forthwith and voluntarily rather than by way of further litigation.

All patriotic South Africans need to put accountability and responsiveness to the needs of all people first in the debates on “state capture”, our “governance model” and on the manner in which personnel are deployed at all levels of the public administration in the post-pandemic order. If we have all due respect for the constitutional framework outlined above, the outcome of the debate could promote effective and efficient service delivery by the public administration.

No “class suicide” has ever taken place anywhere in the world, the notions underpinning it are long discredited and, ruminations of NDZ aside, there is no appetite for it among the cadres most of whom are motivated by greed, desire for power and patronage rather than idealism.

The carbuncle that is cadre deployment will be excised when the ANC turns its back on the NDR and our land will flourish with good cadres taking their rightful place alongside colleagues in the political sphere while in the public administration, with all staff appointed on merit and not on political allegiance. Constitutionally compliant public servants will serve the public (not the party) in a manner which is responsive to the needs of the people and is truly accountable to constitutional (not revolutionary) values. Service delivery will be aimed at implementing the Constitution and the NDP, not the illegal hegemony that the revolutionaries crave. Public servants will take the pledge and mean it.

See:  Pledge by the Members of the Public Administration of South Africa

Service delivery will unfold along the lines of the Constitution, not the NDR, as was suggested to an ad hoc committee of parliament that inquired fruitlessly into service delivery failures.

See: Submission to the Ad Hoc Committee Of The National Assembly Enquiring Into Progress With Service Delivery

Those who are deluded into thinking that there is nothing wrong with cadre deployment aimed at implementing the NDR should have regard to the supremacy of the Constitution and to the state of our municipalities in which the cadres have looked after the revolution at the expense of the SA public by given their loyalty and energy over to the NDR instead of to respecting, protecting, promoting and fulfilling the rights of all as is required by the Bill of Rights.

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