Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.
It is to be hoped that the State Capture Commission will give the attention that it needs to the phenomenon of cadre deployment as it manifests in Luthuli House. In the interim, both Zille and Madonsela are wrong on aspects of the issue, as emerged in a recent debate.
It is a perilous path to tread when anyone crosses swords with two powerful people at the same time. The topic of cadre deployment has its pitfalls too. Any column that combines these ingredients is fraught with danger. The two powerful people are former Public Protector, Professor Thuli Madonsela and former Western Cape Premier Helen Zille, both formidable.
“Cadre deployment” refers to the practice of the ANC that sees loyal members (or supporters) of the party appointed to positions of power and influence in all spheres and facets of the state. Deployed cadres are expected to drive the National Democratic Revolution (NDR) of the ANC and its alliance partners the SA Communist Party and Cosatu, the trade union federation, most of whose members are public servants.
It is the primary aim of the revolution to secure hegemonic control of all the levers of power in SA society. This striving is at odds with the notions in the Constitution that ours is a multi-party democracy under the rule of law in which there is a separation of powers between the various spheres of government. We have guaranteed human rights, a free media, an independent and impartial judiciary. The entire system is open, accountable and responsive.
Various checks and balances on the exercise of power ought to be achieved through our oversight and support structures such as Parliament itself and the Chapter Nine Institutions set up in the Constitution. Hegemony seeks comprehensive control of all levers of power. This strategy of the ANC is at odds with the tenets of constitutionalism.
It remains an open question whether the State Capture Commission (SCC) will or will not identify the practice of cadre deployment in state jobs and in the state-owned enterprises (SOEs) as a cause of the well-established phenomenon that saw an unholy alliance of the Zuma and Gupta families lording it over various significant levers of power in SA. The scope of the mandate of the SCC includes investigating:
“… the nature and extent of corruption, if any, in the awarding of contracts and tenders to companies, business entities or organizations by Government Departments, agencies and entities.”
Clearly, if the commission views cadre deployment in the public administration and SOEs as a corruption of our constitutional order, there will be findings in one or other of the forthcoming tranches of its report due at the end of January and February 2022.
The values and principles that inform governance of the public administration (including SOEs) are set out in Section 195 of the Constitution which requires that:
“Good human resource management and career development practices, to maximize human potential, must be cultivated…
“Efficient, economic and effective use of resources must be promoted.”
It is foundational to the constitutional order that the entire system of governance ensures “accountability, responsiveness and openness.” Our state is founded upon these values and others set out in Section 1 of the Constitution.
Now clearly, the practise of confining the candidates for jobs in the state, the SOEs, the judiciary and the Chapter Nine Institutions to loyal cadres of the NDR or even to those friendly to the ANC is in conflict with the law. It corrupts the whole appointments system by eliminating from consideration the vast majority of the 60 million population who happen not to hold ANC membership or favour.
It has already been argued that cadre deployment is a cause of State Capture.
According to media reports, Zille and Madonsela recently debated cadre deployment in the context of the work of the SCC. These are the words attributed to them:
Madonsela: “I am happy the commission has given us its preliminary views on what happened. First, I would like to indicate that it’s still not answered the big question of whether the state was hijacked. For example, some (DA members) have referred to cadre deployment as a problem. My preliminary conclusions as Public Protector was that what we were seeing was not cadre deployment, it was a hijack. I am not for or against (cadre deployment), but I am saying State Capture, as we saw it, was about the family of President Zuma having gone into business with the Gupta family, and the power given to Zuma by the people of SA being hijacked and repurposed to advance the business interest of these two families.”
Zille: “The old NP ‘cadre deployment’ usually managed to build strong state-owned entities, a capable state, and led to significant industrialisation and economic growth. Quite the opposite under the ANC… All cadre deployment is wrong. In extreme cases, it results in a collapsed state, such as we have now.”
Madonsela must surely know that it is incumbent upon the public service to “loyally execute the lawful policies of the government of the day” (Section 197(1) of the Constitution). It is also obvious that the NDR is wholly inconsistent with the values of the Constitution and conduct aimed at achieving the goals of the NDR is invalid under Section 2 of the Constitution.
As a professor of law, Madonsela is surely acquainted with the rulings in Mlokoti’s case in which cadre deployment was struck down as illegal and unconstitutional when a cadre deployment committee attempted to impose its will on the lawful appointment processes of the Amathole District Municipality, which was in need of a new municipal manager.
The decision of Justice Pickering to replace the deployed cadre with the best candidate for the job (who happened not to be an ANC loyalist) was not appealed and stands as good law.
The ANC pretended, in its cadre deployment activities after that case, to make “recommendations” via cadre deployment committees rather than appointments. However, the minutes of those meetings of the national cadre deployment committee that have reached the public domain reveal that the so-called “recommendations” are of a binding nature.
Rebecca Davis has analysed the perfidy in some detail in Daily Maverick. This practice is deeply unconstitutional, as Madonsela surely knows. She can be for cadre deployment in purely political positions and against it in the public administration including SOEs. It is not an issue on which neutrality is indicated.
Zille is quite wrong to condemn all cadre deployment. It is only the latter categories that are illegal. Here’s why. All political parties enjoy freedom of association in SA. It is guaranteed to all in the Bill of Rights. If the ANC chooses to organise itself as if it is a military organisation and not a political party it is at liberty to do so via its cadre deployment activities.
Zille has also not attached due weight to the explanation of the activities of the Broederbond recently given by Jan Bosman in response to suggestions that cadre deployment is a perennial problem in SA.
It is also an exaggeration to suggest, as Zille does, that the state has collapsed.
It is to be hoped that the State Capture Commission will give the attention that it needs to the phenomenon of cadre deployment as it manifests in Luthuli House.
It is in order to deploy cadres in political office positions held by party members, from president down to lowly municipal councillor. It is not in order to disqualify the majority of job seekers who wish to work in the state or SOEs on the basis that they are not loyal cadres of the NDR. The state does not belong to the ANC and party and state should not be confused or conflated. Job reservation ended with apartheid.
Perpetuating it in smoke-filled back rooms at Luthuli House for the benefit of the “new elite” ANC cadres ought not to be allowed. A recommendation that the practice, insofar as it relates to the public service and the SOEs, should be discontinued at once, would be a welcome addition to the other good news emerging from the report of the SCC. DM