JAUNDICED EYE

It’s a remarkable aspect of the South African political terrain that the Official Opposition has been able to do far more through the judicial system to ensure the African National Congress’s adherence to the norms of democratic governance than it has through Parliament.

In reality, there’s limited scope for parliamentary checks and balances in a system where the ruling party — on its own or in alliance with the likes of the Economic Freedom Fighters — has consistently hovered around the two-thirds mark in seats. That’s especially true in a developing African country where the government does not think of itself as just another political party, subject to the swings and roundabouts of pragmatic Western-style governments.___STEADY_PAYWALL___

Instead, it sees itself as the vanguard of a National Democratic Revolution that will sweep all before it. Revolutions, by definition, are not about compromise and negotiation. They’re about having unfettered and unshared control of the levers of power.

This mindset infuses the ANC’s approach to everything, including its desire to gerrymander electoral boundaries when it loses control of a municipality (uMngeni) or a province (Western Cape). But it reaches its apogee in the policy of cadre deployment, which has destroyed virtually every one of the hundreds of national, provincial and local government structures, agencies and state-owned enterprises to which it has been applied.

Cadre deployment, as well as arguably being the greatest act of self-harm in our history, is the single biggest blight on South Africa’s ability to function. As Chief Justice Raymond Zondo pointed out, it is at the heart of the ANC-facilitated corruption that has hollowed out the state and, as stated in the report of his commission of inquiry into state capture, flouted at least four core principles of the Constitution.

That is why last week’s High Court rejection of the Democratic Alliance’s action against the practice is a blow. It’s a rare loss for a party that has an exceptional record in using the judicial system, in dozens of successful legal applications, to hold the ANC government and its often-overreaching officialdom to account.

It’s easy to forget that last week’s impeachment of Judge Hlophe started with a DA court application 16 years ago. The impeachment of the previous Public Protector? DA lawfare. The Zuma spy tapes; Zuma’s fake medical parole; the thwarted appointment of a corrupt cadre to head the prosecuting authority; and the Constitutional Court ruling that the government can’t strip South Africans of their passports — all DA court victories.

Judge Aubrey Ledwaba’s finding reflects the ANC’s justification for cadre deployment: that it is common practice in every democratic government in the world.

That is partially true. When there is a change of governing parties, some key posts of the government machinery see a changing of the guard, ostensibly to make sure that the old administration’s stalwarts don’t sabotage the new policies, but in reality also to reward the incoming government’s top supporters.

There are at least three obvious ripostes to this in a local context.

The first is that we don’t have regularly changing governments. While there might have been a need for key positions of power to be occupied by ANC supporters when it ended 46 years of National Party government, which had shaped in its own image every aspect of state administration, that is not the case now, after three decades of ANC government.

The second is that the ANC’s talent puddle cannot possibly provide the managerial, technical and administrative skills to run an economy as complex as South Africa’s. There’s a dearth of the “suitable and qualified” cadres that President Cyril Ramaphosa last week promised his administration would appoint in future, speaking at last week’s election manifesto launch.

Ramaphosa also neglected to mention that the ANC deployment committee’s powers extend to the appointment of Cabinet ministers, so it’s not his say-so on who will be employed. It depends on the ever-shifting balance of power between rival factions within his administration.

The third is that no democracy in the world has so thoroughly — from the top to the bottom of every national, provincial and municipal hierarchy — ensured that any vacancy of any significance is filled by a card-carrying member, no matter how deeply the barrel has to be scraped.

Cadre deployment has been deeply corrupting. The influence of the ANC deployment Gestapo can seen, virtually without exception, in the non-private sector appointments made since 1994.

Cadre deployment, bolstered by race-based empowerment quotas in the pursuit of “transformation”, walks in philosophical lockstep with the ANC's determination to cement, in perpetuity, the party’s grip on power. Just as it is now virtually impossible to become a school principal (or to a lesser extent a teacher) without the blessing of the ANC’s teachers’ union partner, SADTU, the ANC party card has informally become the minimum — and often only — qualification for almost any promotion within the civil service, including the police.

One of the supporting documents filed in DA’s failed High Court application, and also cited by Zondo in his voluminous State Capture findings, is a confidential ANC document setting out the primary objective of cadre deployment. It is to “deepen the [ANC’s] hold over the leers of state” and to extend that grip “outside the immediate realm of the state institutions”. This includes “the entire civil service … education institutions … independent statutory commissions, agencies, boards and institutes … and international organisations and institutions”.

It will be interesting to see whether Ledwaba, who is well regarded in the legal fraternity, allows the DA to appeal his judgment. Key to his ruling was his view that the ANC, like any political party, “is entitled to influence government decisions, including the appointment of senior staff to public administration, so long as the public service is protected against being misused for partisan purposes.”

The DA appears to be the victim of its own incredibly bad timing. The DA failed, said Ledwaba, because its case was based on “speculation and conjecture”.

Had the DA waited with its application to have cadre deployment declared unconstitutional until after it had in hand the ANC’s cadre deployment minutes, Ledwaba might well have come to a different conclusion. Certainly, a Constitutional Court, now headed by a Chief Justice who is known to be critical of cadre deployment, may come to a different conclusion.

The DA must bitterly regret its haste. The deployment committee minutes, released by another protracted DA battle that went all the way to the ConCourt give a glimpse of the policy’s malevolent intentions and effect. (It’s not a full picture — while the minutes were supposed to be “full and unredacted”, those relating to the 11 years that Ramaphosa headed the committee have been conveniently and irretrievably lost because of a laptop hard drive “failure”.)

Ultimately the DA’s lawfare, however necessary and admirable it is, is at best a temporary solution. Since the judiciary itself is the target of cadre deployment and ANC capture, the only long-term solution is at the ballot box.

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