ANC records’ legal minefield
• Cardre deployment records may spark labour-related disputes
The political mudslinging over the release of the ANC cadre deployment records is intensifying. While the political noise factor is high over the missing records when President Cyril Ramaphosa was in charge of the ANC deployment committee between 2013 and 2017, lawfare is on the rise and many legal ramifications still exist.
Whether a ravenous dachshund, a lost laptop or simply poor record-keeping are to blame, the DA had, at the time of writing, issued a letter of demand towards filing a contempt hearing for the release of these records.
Criminal charges are also on the table for officials the DA claims were involved in destroying these records. The ANC has, however, claimed cadre deployment is applied all over, and it has complied with the Constitutional Court order and has asked the DA to release its own records.
The Gauteng High Court recently dismissed with costs the application by the DA to have the ANC’s cadre development policy and deployment strategy declared unconstitutional. It said the DA had misinterpreted the Zondo report and that there was no common cause that the ANC policy has resulted in corruption, maladministration and state capture. It said influencing government decisions is different from political meddling in government affairs. Either way, this will likely be appealed to the Supreme Court of Appeal or even directly to the Constitutional Court.
Remember, Ramaphosa told the Zondo commission in April 2021 that he could not recall minutes having been kept during the period he helmed the committee. The ANC has said cadre deployment should not be inconsistent with the principles of fairness, transparency and merit in appointing individuals to public entities. “Cadre deployment cannot be faulted in principle; it is a common feature of democratic practice worldwide. But we would concede that there are weaknesses in its practical implementation that make the case for greater clarity, both within political parties and the state.”
Yet part 6 of the Zondo report claimed the practice was unconstitutional and illegal and should not exist. Minutes, subpoenaed by the commission, had already found that, quite apart from claims it did not interfere with judicial appointments, the committee had made recommendations on preferences for judges.
Members are, in fact, “recommended” across many fields, some which are government-specific — though where broad civil society mandates should trump party loyalties — and others that are more concerning, such as education or roads, rail and power, where weak appointments have left terrible marks on society.
What should be kept in mind is that the Constitutional Court has already delved into this matter when it dismissed the ANC’s application for leave to appeal a judgment requiring it to hand over its cadre deployment records. The ANC was told earlier in February to also hand over all minutes, CVs, email threads, Whats App discussions and other relevant documentation relating to its cadre deployment committee dating back to 2013, by Monday February 19.
While the disclosure documents have not been open to the public, the state capture commission report, part VI volume 2 has stated the following regarding the employment practices and minutes of the deployment committee: “Many minutes scrutinised by the commission show that the committee did consider loyalty and party membership when evaluating candidates. This would give an unfair advantage to ANC members, which would effectively contravene section 197(3) of the constitution, which states that ‘No employee of the public service may be favoured or prejudiced only because that person supports a particular party or cause’.”
So there is the legal rub of the situation. Jan Norval, employment executive at EN Safrica, makes the important point that the disclosure documents are likely to be carefully scrutinised by unsuccessful public service candidates, looking to see whether the decisions of the deployment committee affected their application for a position.
“Organs of state and possibly SOEs may be referred to bargaining councils and the CCMA relating to unfair labour practices regarding promotion, or face claims of unfair discrimination based on political opinion or other
CRIMINAL CHARGES ARE ON THE TABLE FOR OFFICIALS THE DA CLAIMS WERE INVOLVED IN DESTROYING THESE RECORDS
THE LABOUR RELATIONS ACT PROVIDES THREE REASONS FOR A FAIR DISMISSAL: MISCONDUCT, INCAPACITY AND OPERATIONAL REQUIREMENTS
grounds, should unsuccessful candidates perceive unfair influence on their application by the deployment committee,” he says.
The Labour Relations Act provides three reasons for a fair dismissal: misconduct, incapacity and operational requirements. If an employee’s employment is connected to the disclosure documents and they can perform their duties satisfactorily, they cannot be fairly dismissed for incapacity because their capacity to perform their duties is not at issue.
“Employers may also find it difficult to categorise an operational requirement which would justify the dismissal of an employee whose employment is connected to the disclosure documents. If the employee was somehow involved in his appointment through the deployment committee, and not just an innocent beneficiary of the appointment, then a dismissal for misconduct could be fair,” says Norval.
When all is said and done, organs of state and possibly SOEs are likely to face new employment-related disputes stemming from the disclosure documents, and they will have to prove that appointments to the implicated positions were fair.
Any terminations of employment stemming from the disclosure documents, or the possible declaration of cadre employment as unlawful (on appeal), would also require employers to demonstrate the dismissals were not just lawful, but fair.