DA's application against ANC cadre deployment 'is premature', court hears

Adila Hassim SC, on behalf of the government and President Cyril Ramaphosa, has asked the Pretoria high court to dismiss with costs the DA’s application to have the court declare the ANC’s cadre deployment policy unconstitutional and invalid, saying the application is premature.

In her submission, Hassim said Ramaphosa is providing appropriate direction to ensure public appointments are not vulnerable to abuse, regardless of what the ANC or any other party does with their policies.

She said it was necessary in the answering affidavit of the president and the government to set out the efforts that have been made to address the problem of improper interference in public appointments to end state capture and rebuild damaged institutions and foster the culture of accountability.

Hassim said these measures validate the conclusion that the DA's application is premature.

“The DA’s contention that the president has no intention of revoking the policy is neither here nor there — it's for the ANC to decide what it wishes to do with its internal policies, and it's for the president to ensure that the constitution [and the] law is upheld,” she said.

The matter follows the disclosure of ANC deployment committee minutes during the state capture commission last year, which gave the impression that the committee influenced individual appointments to the civil service and parastatals.

Hassim argued there was nowhere in the case where the DA contended that the manner in which the policy was put in place was inconsistent with the constitution.

In a written argument on Monday, the DA’s counsel Anton Katz SC said the policy undermined the “fundamental distinction” between party and state.

Hassim argued the DA’s application was misguided. “The pleadings don't make a case — and such allegations as they are in the founding affidavit are not supported by facts. In the absence of facts and a properly pleaded course of action, the DA is essentially seeking advice from this court regarding a political party policy — it doesn’t resolve a dispute between the parties,” she said.

She said the relief the DA is seeking is not competent.

Hassim addressed the DA's argument that it was inappropriate for the president, as the head of the executive, to defend the policy of his party with a full-blown defence instead of an explanatory affidavit or putting in a notice to abide.

She said the president and the government are required to respond, as they are both cited as respondents. 

“Having been cited they have every right to participate fully in the hearing of the matter. The president is required to place facts before this court to assist it to come to a decision. The president had already testified about the impugned policy before the Zondo commission.”

Hassim further argued the DA had failed to highlight to the court which rights were violated and by whom.

“The DA’s founding affidavit does is not make any specifics on which rights are violated, how they are violated and by whom they are violated. Instead, the DA speculates on rights violations in general terms — that is not sufficient to make a case. There is no valid constitutional case being made to this court.”

The relief sought by the DA doesn't allow the court to determine what part of the policy is inconsistent and doesn't make a case, she added.

“We would submit that the correct approach to challenging improper appointments is to challenge those specific appointments where the appointee doesn't meet the minimum qualification requirements or there is evidence that the appointee is compromised, such that the appointment is improper.”

Judgment has been reserved.

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