Putting the record straight on legal nature of cadre deployment

DURING President Ramaphosa’s question-time in Parliament last week, he defended the ANC’s policy of cadre deployment in the civil service, in response to the leader of the opposition, John Steenhuisen, who presented persuasive arguments that this practice is prejudicial to national interest and one of the principal causes of corruption of endemic proportions and the maladministration occurring in government departments.

These, in turn, he asserted further, are responsible for the failure of adequate service delivery and cognate problems for the long-suffering people of this country.

The DA has initiated a process to introduce legislation that would make it illegal to appoint people to posts in the civil service on the basis of their loyalty to a political party, which is what, inter alia, cadre deployment is all about. In the light of the above, it is opportune to put the record straight politically and constitutionally on this inordinately contentious policy, practised on a vast scale by the ANC government, and defended unashamedly by its leaders.

I wish to comment on cadre deployment from a legal and jurisprudential viewpoint. It is cogently submitted that commitment and compliance with the value of non-racialism, which is clearly set out in section 1 of the Constitution is in practice, incompatible with the widely and indiscriminately employed practice of cadre deployment, used by the ANC administration.

The practice of cadre deployment whereby people 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 a noteworthy 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 was unlawful in the circumstances of the case. In this judgment, two people had been short-listed 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 policy required that appointments be fair and merit-based.

Nevertheless, Mlokoti was overlooked and his weaker rival, Mlami Zenzile, a political 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 appoint.

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 must be exposed for what it is, namely unfair and unlawful 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 card-carrying members of the ANC, or who are not intimately connected to the ANC.

It is conceded that in a limited number of 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 acceptable and legitimate.

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 first and foremost have the necessary qualifications, and not be merely cadres of the governing party.

This is the opposite of what has been and is still occurring in South Africa since 1994, particularly under the Zuma ANC administration, where cadre deployment became so 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 endemic corruption.

This has also resulted in other debilitating problems; in the sphere of local governing, where in relation to service delivery there have been widespread political protests, some of which have become violent and politically destabilising.

The astonishing problems that our country is confronted with, as have been so transparently exposed by virtue of the credible evidence presented on State Capture at the Zondo Commission, are inextricably connected to cadre deployment.

A paradigmatic change is required in this regard. This is a profound challenge to the leadership and the people of this country if we are to become a successful operating democracy and in the words of the preamble to the Constitution “heal the divisions of the past … ” and in terms of its section 195 promote the principles of “professional ethics … efficient, economic and effective use of resources.”