ANC wants a 'constitution-free zone' on its cadre deployment policy, says DA

The ANC wants a “constitution-free zone” for its policies but “there are no constitution-free zones in South Africa”, the DA said on Monday.

The DA’s counsel Anton Katz SC was seeking to persuade the high court in Pretoria to declare the ANC’s cadre deployment policy unconstitutional and invalid. In written argument Katz said the policy undermines the “fundamental distinction” between party and state.

The case 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.

“The policy is patently inconsistent with an apolitical and career-orientated public service. The purpose of chapter 10 of the constitution … is to ensure there is a separation between the state, as entity, and the political party that secures a majority of votes in a general election,” said Katz.

Katz was addressing an argument by the ANC that the soundness of party policies were political questions for the electorate to decide and not matters for courts. Katz said the DA’s case was about “legal and constitutional soundness”. These were matters for the courts.

He said when a policy affected government actions it would be within a court’s remit to declare the policy unconstitutional. For example, if a party had a policy that supported the death penalty and got into power and, through parliament, enacted legislation to bring it back, it would be within a court’s remit to declare that policy unconstitutional.

However, Les Morison SC, counsel for the ANC, said it was the DA who was seeking to limit the ANC’s right to freedom of expression and the ANC who was protecting the constitution. The right protected all speech — whatever its content — provided it was not incitement to violence, hate speech or propaganda for war. The deployment policy was none of these.

He said the right to freedom of expression meant “the ANC can say what it likes about who it would like in office. And any political party can say who it would like in political office”. The DA was trying to limit the right of all parties, “including itself”, to say who they would like in the public service.

Morison said the DA was arguing the policy, “by its mere existence”, was unconstitutional. Yet the constitution explicitly permitted its own amendment. Logically, that meant a party should be allowed to campaign for its amendment, therefore allowing unconstitutional ideas to be aired. It was a party’s right to campaign for an unconstitutional policy, provided it was not incitement to violence or hate speech.  

It was only when an unconstitutional policy was implemented by government that courts could intervene; and then it should be those specific acts of implementation — not the policy — that should go to court. The DA’s case was not directed at implementation and was an “amorphous” case, he said.

Mfundo Salukazana, also for the ANC, added the sections of the constitution on which the DA relied to make their case of unconstitutionality were binding on the state and not on the party. He said the case by the DA was ill-founded.  “It is mistaken and an opportunistic political act.”

Katz said the DA targeted the policy because it was going for the “roots” of cadre deployment instead of individual branches.

The case continues on Tuesday.