Tricky: Chief Justice Raymond Zondo hands President Cyril Ramaphosa the State Capture Report, which contains 353 recommendations on criminal sanction. (Ntswe Mokoena)
The Pretoria high court tore to shreds the Democratic Alliance’s (DA’S) court application arguing that the ANC’s cadre deployment policy was unconstitutional and called into question the opposition party’s interpretation of the state capture report.
“We must first record that it is not common cause that the policy has resulted in corruption, maladministration and state capture. Thus far the DA has not placed any admissible evidence before the court to sustain these claims,” the court said on Wednesday.
In a ruling delivered as the DA was studying the governing party’s cadre deployment records, the court said there was no indication that the commission on state capture headed by Chief Justice Raymond Zondo had found that the ANC cadre deployment policy was unconstitutional.
The court also ruled that there was no suggestion in Zondo’s report indicating that the state capture commission found that the ANC’s cadre deployment policy was unconstitutional.
“From plain reading of the words used by the chairperson [Zondo], his remarks are directed at the conduct of public officials. He states that it would be unlawful to take into account recommendations of any political party when making decisions on who should be employed into public service. There is no reference to the policy much less a finding of its unconstitutionality,” it said.
The court said the DA had not placed any admissible evidence for its conclusions.
The full bench of high court judges said the DA’s argument that individuals such as Tom Moyane, Lucky Montana, Brian Molefe and Siyabonga Gama were recommended by the ANC’s deployment committee during former president Jacob Zuma’s tenure could not be justified.
“In order to conclude that the committee usurps power from the minister, that it is directly involved in interviews and selection of candidates and that the committee influences appointments of judicial officers this court would need to speculate as to what occured at the point of the minute,” it said.
It said that much like any other political party, the ANC is entitled to influence government decisions, including the appointment of senior staff to public administration, as long as the “bright line” between state and party was observed.
“The DA makes no case as to why a policy of a voluntary association must comply with the PSA [Public Service Act]. It does not even make a case to demonstrate that the government is bound to comply with the policy when making senior appointments to public service. It lays no factual predicate to demonstrate the infringement of the sections of PSA,” the court said.
“Alive to the rules of cross-examination, the commission correctly made no finding that the president had either lied or misled it. It was not for the DA to draw such a conclusion.”
The DA’s application argued that the cadre deployment policy was used as a mechanism by the ANC to control public administration, which it said had led to state capture and the erosion of independent institutions.
It told the court that as the largest opposition, it had an interest in challenging the policy and its influence on how the government functions.
The DA argued that the constitutional imperatives of accountability, responsiveness and transparency require that the lawfulness of the policy be determined.
The ANC argued that there was no properly pleaded constitutional attack.
The ANC submitted that the DA’s case presented no live issue or flesh-and-blood dispute that the courts could resolve. The ruling party stated that it was elected with a particular set of policies that were expressly and impliedly set out in its manifesto.
The ANC argued that the DA had approached the court to score political goals it could not achieve through the ballot box.