The high court in Pretoria on Wednesday dismissed the DA’s case that the ANC’s cadre deployment policy was unconstitutional.
The court said it was not unconstitutional for political parties to influence the appointment of senior personnel to the public service — “so long as the public service is protected against being misused for partisan purposes”.
Wednesday’s judgment relates to a separate court case to the one the DA won for access to the deployment committee’s minutes, which went all the way to the Constitutional Court.
On Monday, the ANC delivered the minutes to the DA as ordered by the highest court.
On the constitutionality of the cadre deployment policy, the high court’s judgment said the DA had argued that the policy was “responsible for eviscerating critical state institutions, blurring lines of accountability and facilitating state capture”.
It had led to poor service delivery and had inhibited the state’s ability to function effectively and promote human rights, the DA argued.
In their judgment, deputy judge president Aubrey Ledwaba, judge Noluntu Bam and acting judge Matthews Mojapelo said the DA’s case was “undergird” by three submissions: first, that the state capture commission, chaired by chief justice Raymond Zondo, had found that the cadre deployment policy was unconstitutional. Second, it was admitted at the Zondo commission that the policy had contributed to state capture and corruption. And third, that the deployment committee influenced appointments to state institutions.
All these arguments failed, the judges concluded.
From a plain reading of the words used by the chairperson, his remarks are directed at the conduct of public officials ... There is no reference to the policy, much less a finding of its unconstitutionality.
— Pretoria high court
They said Zondo never found the policy was unconstitutional. His report found it would be unlawful for public officials to take into account the recommendations of a political party.
“From a plain reading of the words used by the chairperson, his remarks are directed at the conduct of public officials ... There is no reference to the policy, much less a finding of its unconstitutionality,” said the court.
Nor did President Cyril Ramaphosa admit that the policy had contributed to state capture or corruption, said the judgment. “At best for the DA, the president conceded to shortcomings in the manner deployments were done at the relevant time and the need to change direction,” said the judges.
The court found the DA had not put “any admissible evidence” before it to reach a conclusion that the deployment committee influenced appointments to state institutions. To get there, the court would “need to speculate as to what occurred from the point of the minute”, said the judgment.
The correct approach was to bring to court a specific challenge against a specific appointment, with evidence of unlawful interference by the committee or dereliction of a duty on the part of the state official, said the judgment.
On state capture, the DA “failed to place evidence” that Transnet’s Siyabonga Gama, Eskom’s Brian Molefe and Anoj Singh or Prasa’s Lucky Montana were recommended by the deployment committee “or that the policy had anything to do with their appointments”.
“It follows that the conclusion cannot be justified,” said the judgment.
The judgment said the DA had relied on a “generalised disenchantment and broad, sweeping conclusions in pleading a constitutional attack”. This was impermissible, said the judgment.
The court also rejected the DA’s argument that it was impermissible for the ANC, or any political party, to influence appointments to the public service. The ANC had argued that there was nothing wrong with this and that, in countries all over the world, governing political parties deployed senior personnel to public administration.
The court quoted from a Constitutional Court judgment, which said that while it was true that the ANC influenced the direction of the state, this did not mean the ruling party and the state became one entity.
“Ordinarily, political parties win elections on the basis of their policies and manifestos. This occurs worldwide. And once they assume power, they promote the policies that won them the elections. But the bright line separating the party from the state remains intact.”
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