The legal nature of cadre deployment

I REFER to the excellent and informative Oped by Ebrahim Harvey headed “ANC cadre deployment has little to do with competence” and published in your paper on March 13.

With regard to the highly questionable practice of indiscriminate cadre deployment, Harvey made two seminal comments.

The first is that, as a result of cadre deployment, the number of ANC leaders at all levels of government with impressive educational qualifications, including in its leading structures, is abysmally poor.

The second is his concluding statement: “I am not in the least asserting that all cadres deployed by the ANC were undeserving appointments, but undoubtedly the bulk of appointments since 1994 were.”

I wish to comment on cadre deployment from a constitutional and jurisprudential viewpoint to complement Harvey’s approach, which is essentially political.

It is submitted that commitment and compliance with the value of non-racism, which is clearly set out in section 1 of the Constitution is also invariably in practice incompatible with the widely and indiscriminately employed practice of cadre deployment used by the ANC administration.

The practice of cadre deployment whereby persons, who are card-carrying members of the ANC, have been appointed to positions in the public service, regardless of their competence, is in most cases unconstitutional and unlawful. This was held to be the position in an important case in an Eastern Cape High Court judgment in Mlokoti v Amathole District Municipality of 2008, in which the judge declared unequivocally that cadre deployment is indeed unlawful in the circumstances of the case. In this case, two people had been shortlisted by the Amathole District Municipality for the post of municipal manager.

A selection panel found

Vuyo Mlokoti to be the stronger candidate and furthermore the municipality’s recruitment required that appointments be fair and merit-based. However, Mlokoti was overlooked and his weaker rival, Mlami Zenzile, a cadre, was appointed to the post. This appointment flowed from the instructions of the ANC’S regional executive committee, which told ANC members of the district council who to vote for. The High Court found in favour of Mlokoti, in a judgment that was a singular triumph for constitutionalism and that unequivocally condemned the practice of such cadre deployment as unethical and unconstitutional.

Unqualified cadre deployment in general must be exposed for what it actually is, namely unfair discrimination. In effect it is akin to apartheid in most cases in the manner in which it operates in relation to those who are not cardcarrying members of the ANC or who are not intimately connected to the ANC.

It is conceded that in a limited number of very senior posts in the civil service, as occurs in other democracies, such as in Washington and Westminster, where a particular position may justify the appointment of a person whose views are aligned to the governing administration, it is justified. It is, however, very much the exception to the rule that in an apolitical civil service as a whole it is essential for those appointed to serve the government of the day with commitment and competence, should have first and foremost have the necessary qualifications, and not be merely be cadres of the governing party.

This is the opposite of what occurs in South Africa since 1994, particularly under the Zuma

ANC administration, where cadre deployment has become widespread, and has resulted in large numbers of incompetent people being appointed to positions for which they had neither the experience nor qualifications and has facilitated maladministration and corruption. This has also resulted in other very debilitating problems, particularly in the sphere of local governing.

Large-scale cadre deployment must inevitably lead to the politicization of the civil service and decline in competence and commitment, as has manifestly occurred increasingly under the Zuma administration.

It is cogently submitted that the Ramaphosa administration must take decisive steps to put an end to such practice in the interest of good and competent government. It must do so by both word of mouth and conduct and thereby re-instate non-racialism and professionalism in its philosophy and practice of governance.

It is to be fervently hoped that Ebrahim Harvey’s letter, referred to in his Oped, to President Ramaphosa, urging him to review “the bankrupt policy of cadre deployment by the ruling ANC since 1994” will be seriously taken heed of by the new President and his administration.

GEORGE DEVENISH, emeritus professor at UKZN, helped draft the interim constitution