DA leader John Steenhuisen.Photo: Michele Spatari/AFP
The ANC has been vindicated in a high court ruling on the constitutionality of cadre deployment handed down three months ahead of an election where the majority it has maintained for 30 years hangs in the balance.
Inversely, the Democratic Alliance (DA), the applicants, has been denied a finding it hoped to use as fodder on the campaign trial. A full bench of the Pretoria high court found that it “came to court with a case built of speculation and conjecture”.
It had not only failed to make out a case that cadre deployment is unconstitutional but to bring any proof that it has resulted in corruption and state capture, Justice Aubrey Ledwaba wrote in an often scalding ruling.
“There is nothing unconstitutional about a political party influencing the policy direction of a government, including the appointment of senior personnel to public service, so long as the public service is protected against being misused for partisan purposes.”
President Cyril Ramaphosa, who was cited as the fourth respondent, had argued in court papers, as he had in testimony before the Commission of Inquiry into State Captur, that there was “nothing unlawful in political parties deploying senior personnel to public service.”
He reiterated that the practice was not unique to South Africa and cited a study by the Organisation for Economic Co-operation and Development in 2007, which concluded that political involvement in public administration was part of how democracy functioned.
He also, the court recalled, accepted that the policy can be abused, and that the ANC has recognised that it had been abused, but that this did not render it unconstitutional.
The DA tried to rely on both testimony on cadre deployment at the Zondo commission and its final report on state capture but it did not further its case.
The commission had not, as it attempted to argue, found that cadre deployment is unlawful and unconstitutional, nor had the president conceded that the policy contributed to state capture.
“These two submissions must accordingly be rejected,” the court said.
From a plain reading of the precise words of Chief Justice Raymond Zondo it was clear that his remarks concerned the conduct of public officials, the court said.
Zondo said that it would be unlawful to take into account the recommendations of any political party when deciding who should be employed into public service.
“There is no reference to the policy, much less a finding of unconstitutionality.”
Of its claim of admissions by Ramaphosa, the court said the president had at most “conceded short-comings in the manner deployments were done at the relevant time and the need to change direction”. Nor could it agree with the DA’s point that the president had lied to the commission when he said the cadre deployment committee did not direct judicial appointments.
It said the commission was alive to the rules of cross-examination and had held that the president contradicted himself on the two occasions when he was questioned on the subject (Ramaphosa denied a contradiction in his court papers) but rightly made no finding as to whether he had lied or tried to mislead it.
“It was not for the DA to draw such a conclusion.”
The ANC had objected that the DA had breached the rules on evidence by referencing Zondo’s alleged pronouncement that the policy was unconstitutional simply as Part 6, Volume 2 of his report on state capture. It made for a record of 485 pages without a specific reference to said statement.
The court quoted precedent which held that a litigant cannot “throw a mass of material contained in the record of an enquiry at the court and his opponent and merely invite them to read it to discover for themselves some course of action which may lurk therein”.
The DA had asked the court to declare the ruling party’s cadre deployment policy inconsistent with the Constitution, including the Bill of Rights, as well as chapter five of the Public Service Act.
Or, as the court put it: “The DA makes plain in its papers that it wants the policy struck down and gone yesterday.”
It argued that through it state capture had been enabled and state institutions hollowed. It had further hobbled the state’s proper functioning and so denied poor people proper service delivery and the realisation of their human rights.
The ANC countered that the opposition had failed to put up a proper constitutional attack. This meant, it said, that it was prejudiced because it could not appreciate the case it was supposed to answer.
It further argued that the court had no jurisdiction to hear the matter, because it could not make political statements about the contents of a political party’s policies. Cadre deployment was among the policies contained in its party manifesto, and had been endorsed by voters who elected the ANC into power and kept it there for all of the post-apartheid era.
It added that the DA was trying to score a political goal in the court that it has been unable to achieve in the polls.
Ledwaba said the official opposition had not heeded the constitutional court’s words in South African Transport and Allied Workers v Gavras and Others and Minister of Cooperative Governance and Traditional Affairs v De Beer and Another where it made clear that a constitutional challenge must be explicit.
“The import of the remarks in Gavras and De Beer is that it is impermissible of a litigant to rely on a generalised disenchantment and broad sweeping conclusions in pleading a constitutional attack such as the applicant has done in this case.”
There were a number of examples in the DA’s founding papers, the court continued. These included that the policy undermined the Bill of Rights, that it cultivated corruption and that corruption at Transnet ensued because Siyabonga Gama was named as chief executive of the ports and rail company at former president Jacob Zuma’s insistence.
The fault line in the party’s founding affidavit extended to its reliance on the apex court’s ruling in Glenister II to argue that it recognised that the state has an obligation under section 7 of the Constitution to take measures to combat corruption, and that state capture was a cognate corrupt practice.
“The reliance both on the level of fact and law is a misdirection,” the court said.
It noted that Glenister concerned a challenge to the rationality of the fated decision to disband the Scorpions, which was located in the National Prosecuting Authority, and replace the unit with the Directorate for Priority Crimes Investigation.
“Aside from the fact that this case is concerned not with a public decision but a policy of a voluntary organisation, the applicant relies on a set of complaints with no facts [to] illustrate the alleged infractions of the constitution. The two cases are incomparable.”
Nor, the court said, did the DA lay any basis for its claim in pleadings that cadre deployment runs counter to the rule of law and right to equality.
It awarded costs against the DA, saying a careful consideration of its application, its sweeping nature aside, revealed that it did not raise genuine and substantive constitutional issues.
The ruling ended with what the court called a necessary reference — “in case we are misunderstood” — to the constitutional court’s recognition of the harm caused globally by state corruption. It knows no boundaries and inflicts severe harm on society, the high court stressed.
“For that reason, it ought not to be used by political parties to pursue political objections”.