Death-knell for jobs for the boys

Finweek English Edition - - Openers - Nikki de Hav­il­land

AN UN­EX­PECTED but po­ten­tially lethal span­ner has been thrown into the ANC’s pol­icy of de­ploy­ing party cadres into se­nior pub­lic ser­vice posts as well as to po­si­tions in the con­sti­tu­tional in­sti­tu­tions that guard against the abuse of rul­ing party power. The East­ern Cape High Court has de­clared the prac­tice il­le­gal.

As a re­sult, the Cen­tre for Con­sti­tu­tional Rights (CFCR) is on a mis­sion to see that rul­ing is in­deed the death knell for the prac­tice. It’s asked the Hu­man Rights Com­mis­sion (HRC), as well as the Pub­lic Pro­tec­tor, to take action. CFCR di­rec­tor Nikki de Hav­il­land says the cen­tre will take the mat­ter fur­ther if the HRC and Pub­lic Ser­vice Com­mis­sion don’t.

Judge Jeremy Pick­er­ing’s rul­ing could cause some se­vere headaches for the ANC by pos­si­bly open­ing up the po­ten­tial for a raft of court chal­lenges against bu­reau­crat ap­point­ments. The judg­ment has, of course, also come just as the new ANC leader- ship pre­pares to “make sure the right peo­ple are in the right jobs” in the pub­lic ser­vice.

It’ll be telling in­deed to see which State man­darins are re­placed and who re­places them af­ter the up­com­ing elec­tion. While the ANC wasn’t avail­able for com­ment on the Pick­er­ing judg­ment – or to in­di­cate for that mat­ter whether it in­tends ap­peal­ing it – De Hav­il­land says: “There was noth­ing am­bigu­ous about the judg­ment. The bot­tom line is that there should be no ex­ec­u­tive in­ter­fer­ence in the ap­point­ment of pub­lic ser­vants. This prac­tice is a com­plete breach of the sep­a­ra­tion of pow­ers and no rul­ing party should be mak­ing ap­point­ments in the pub­lic ser­vice.”

Pick­er­ing de­clared po­lit­i­cal de­ploy­ments il­le­gal in the case in which Voyu Mlokoti took the Amath­ole District Mu­nic­i­pal­ity to court when he was over­looked for the po­si­tion of mu­nic­i­pal man­ager. In an as­sess­ment of his rel­a­tive strengths and weak­nesses com­pared with the other short-listed can­di­date, Mlamli Zenzile, Mlokoti was found to be the bet­ter can­di­date by an 11-mem­ber rep­re­sen­ta­tive se­lec­tion panel. De­spite this and de­spite two le­gal opin­ions cau­tion­ing the mu­nic­i­pal­ity not to ap­point Zenzile, he was ap­pointed. The ANC re­gional lead­er­ship had in­structed the coun­cil to ap­point him.

The court over­turned the ap­point­ment, ar­gu­ing it had con­tra­vened mu­nic­i­pal re­cruit­ment pol­icy that de­manded mu­nic­i­pal man­agers be se­lected ob­jec­tively and on merit and that in­di­vid­u­als had to be re­cruited to po­si­tions on the ba­sis of qual­i­fi­ca­tions and suit­abil­ity.

Com­ment­ing on the in­volve­ment of the re­gional ex­ec­u­tive coun­cil of the ANC, the court had the fol­low­ing to say: “It’s clear that the coun­cil­lors of the ANC supinely ab­di­cated to their po­lit­i­cal party their re­spon­si­bil­ity to fill the po­si­tion.”

Pick­er­ing con­ceded that al­though it’s ac­cepted prac­tice for the ex­ec­u­tive to ap­prove se­nior ap­point­ments within the pub­lic ser­vice, the ac­tual re­cruit­ment and ap­point­ment of pub­lic ser­vants must be non-party po­lit­i­cal, as set out in SA’s Con­sti­tu­tion and labour laws.

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