The official opposition has accused the ruling party of playing for time after it was ordered to release the record of decision-making on public service appointments. (Photo: Delwyn Verasamy, M&G)
The Democratic Alliance (DA) on Tuesday said it would press the ANC for papers the ruling party plans to file to the constitutional court in a bid to appeal an order to hand over the record of decision-making of its cadre deployment committee.
The ANC’s lawyers wrote to those of the opposition on 7 September, indicating that they had instructions to approach the apex court.
The letter came four days after the supreme court of appeal denied the ANC leave to appeal a Johannesburg high court order to provide the DA with all records pertaining to the cadre deployment committee. The party had until the following day to do so, but an application for leave to appeal to the apex court would halt the execution of the order.
Lawyers for the DA confirmed on Tuesday that no papers had been filed. The ANC’s attorneys of record told the Mail & Guardian they were pursuing an appeal but were still drafting papers.
The DA described the intended appeal as a ploy that would delay but not prevent the release of the committee’s records, saying “there simply exists no legal grounds for the ANC to keep its cadre deployment records secret”.
DA MP Leon Schreiber, the author of a public administration amendment bill that seeks to ban cadre deployment, said the party would be writing to the ANC as a first step to ensure that it either filed the papers or complied with the court order.
“I can confirm that we have not received the papers and we will now be writing to them to insist that they avail these to us,” Schreiber said. “If they have failed to file in a timeous fashion we will consider further legal options.”
Schreiber did not expand on what these options were, but it is understood that the DA could argue that the ruling party found itself in contempt of a court order.
He has said that if the constitutional court denied the ANC leave to appeal, or heard and dismissed an appeal, the DA would not hesitate to demand harsh sanction for any member of the party who failed to comply with the order to release the records.
“Should it come to it, the DA will also insist on jail time and a contempt-of-court order against any ANC leader that attempts to delay this process after the constitutional court rejects this last appeal attempt.”
The tussle over an intended appeal came amid a debate in the National Assembly on the Public Administration Laws General Amendment Bill on Tuesday afternoon. It was introduced in 2021.
The bill proposes, among others, to make it a criminal offence to interfere in public sector appointment processes, and to prohibit political office-bearers from employment in the public service. It proposes that those who hold political office be given one year to resign from the time the bill comes into force.
That did not happen, as Schreiber conceded was bound to be the case, with the ANC launching a staunch defence of the policy and its numbers carrying the day despite the spirited support of several opposition parties, among them the Economic Freedom Fighters and the Inkatha Freedom Party.
The ruling party moved instead for the adoption of a report by the portfolio committee, which noted that the department was working on policies to enhance the professionalisation of the public service.
It was adopted with 202 votes to 123, after ANC MPs argued that cadre deployment was designed, precisely, to ensure that the country had a credible, competent civil service.
In the debate, African Christian Democratic Party MP Steve Swart had strongly disagreed and termed the private members bill “imminently reasonable” and said it had proposed “another way of doing things”.
A merit-based public service would have restored pride and talent to the public service, through depoliticisation, Swart said.
“It is obvious to all of us that that is desirable,” he said.
“But beyond that, the Zondo commission has found that the ANC’s cadre deployment is unconstitutional and illegal… More tellingly, Judge Zondo confirmed the link between the cadre deployment committee and state capture in his report.”
Privately, Schreiber said he believed it was still important to table the bill “because it starts putting an alternative on the table” to cadre deployment, which the ANC has implemented since the mid-1990s.
The DA has been emboldened in its approach to the courts on the subject by the findings of the judicial commission of inquiry on state capture,, which noted that cadre deployment is clearly located outside the legislative framework for public service appointments.
Chief Justice Raymond Zondo wrote that the Constitution and the Public Administration Act made “no mention of membership of a political party including the ANC or current ruling party, nor is there mention of a recommendation made by the deployment committee of the ANC or any political party”.
He added: “It clearly could not be justified for a party to use its internal ‘recommendation’ of a candidate for office as a means of placing political pressure on and distorting the objective statutory process of selection and appointment to that office in the state.”
The DA has asked the Pretoria high court to declare cadre deployment unconstitutional, and here judgment is pending. It turned to the Johannesburg high court to force the release of the committee’s record of decision-making.