IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG
Case No.: 31418/22
In the matter between:
DEMOCRATIC ALLIANCE - Applicant
and
AFRICAN NATIONAL CONGRESS - First Respondent
AFRICAN NATIONAL CONGRESS DEPLOYMENT COMMITTEE AND THREE OTHERS - Second to Fifth Respondents
THIRD RESPONDENT'S - ANSWERING AFFIDAVIT
I, the undersigned,
MATAMELA CYRIL RAMAPHOSA
do hereby state under oath that:
1. I am the President of the Republic of South Africa. I am the head of state and the head of the National Executive in terms of section 83(a) of the Constitution of the Republic of South Africa, 1996 ("Constitution").
2. I am cited in this application as the third respondent in my capacity as the President of the Republic of South Africa and as the executive authority of the Republic in terms of section 85 of the Constitution. I therefore depose to this affidavit in that capacity.
3. It should be noted however, that the subject matter of this application is a policy of the African National Congress ("ANC"), a political party in which I am President. I have not been cited in my capacity as the President of the ANC. Where I describe the purpose of the ANC's Cadre Deployment Policy I do so as the head of the executive of an ANC government. The Policy is essentially transformation driven. As the head of the executive I am committed to advancing the values of transformation, integrity and skills within our public service.
4. The contents of this affidavit are to the best of my knowledge and belief both true and correct and fall within my own personal knowledge unless the context indicates otherwise.
5. Where I make legal submissions I do so on the advice of my legal representatives whose advice I believe to be correct.
PURPOSE AND STRUCTURE OF THIS AFFIDAVIT
6. I have read the affidavit deposed to by Mr John Steenhuisen on behalf of the Democratic Alliance ("DA") in support of an application in which the latter seeks an order, amongst others, declaring the ANC's Cadre Deployment Policy ("CD Policy") invalid. I have also read the supporting affidavit by Mr Leon Amos Schrieber. I oppose the DA's application. This affidavit sets out the basis for such opposition.
7. On 15 July 2022 the State Attorney, Mr Melton Mahloko addressed a letter to the DA's attorneys of record in which he requested an extension to 29 July 2022 to file this answering affidavit. The DA did not respond to that request. I am instructed that such silence can be taken to be acquiescence to the same. Mr Mahloko's letter is attached as "MCR1".
8. In what follows I address the following issues in turn:
8.1. First, the DA's case is a non-starter due to ripeness, standing, vagueness and non-joinder issues;
8.2. Second, the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State ("State Capture Commission") does not recommend the relief sought in this application i.e. the revocation of the CD Policy. It does issue findings critiquing the CD Policy but ultimately recommends the establishment of a committee to facilitate public hearings for the appointment of candidates to certain managerial positions;
8.3. Third, the history and nature of the CD Policy and that cadre deployment is not unique to South Africa or indeed the ANC;
8.4. Fourth, the examples cited by the DA are not an exercise of the CD Policy, are not relevant to this application and do not support the relief sought by the DA;
8.5. Fifth, the CD Policy is not inconsistent with the Constitution or the Public Service Act 103 of 1994; and
8.6. Finally, the sequential paragraph response to the DA's founding affidavit.
PRELIMINARY POINTS
Ripeness
9. In terms of the decision of this Division of the High Court delivered on 13 December 2017, the President is required to submit a copy of the State Capture Commission Report to Parliament along with an indication of the President's intention regarding the implementation of the same. The order of this Court dated 13 December 2017 is attached as "MCR2".
In terms of another order of this Division delivered on 28 February 2022 the President is required to do so within four months of the delivery of the final part of the State Capture Commission Report. This Court's order of 28 February 2022 is attached as "MCR3".
11. I accordingly have until around 22 October 2022 to consider the recommendations in the State Capture Commission Report and make a determination as to my intention regarding their implementation. Until expression is given to such implementation, this application cannot be said to be ripe i.e. it is simply not ready for adjudication by this Court.
Locus standi
12. I am advised that the Constitution and policies of a voluntary association are treated by the court as an agreement amongst the members of the voluntary association as well as an agreement between the members of the voluntary association and the voluntary association itself. The same is true of the CD Policy: it is an agreement between the members of the ANC.
13. Axiomatically, the DA is not a member of the ANC. It accordingly does not have the standing to invalidate the agreement between the ANC and its members or amongst the members.
Vagueness
14. The DA's application is vague in at least three respects:
14.1. It fails to identify the exact provisions of the CD Policy that are alleged to violate the Constitution,
14.2. It fails to identify rights in the Bill of Rights infringed by the CD Policy,
14.3. It fails to set out facts of appointments to public administration that are both a result of the implementation of the CD Policy and which subvert identified provisions of the Constitution.
15. The examples of public appointments cited by the DA are based on speculation of the application of the CD Policy and the intervention of the Cadre Deployment Committee ("CD Committee"). As the ANG affidavit shows, the conclusions arrived at by the DA are not supported by the facts. Even some of the best policies and laws were subverted during the period of state capture.
16. This vagueness in turn renders this application incapable of proper adjudication because it denies the Court information it requires to determine not only whether the CD Policy is unconstitutional but also what remedy would be just and equitable to cure the supposed unconstitutionality.
17. In addition, the DA's vague and abstract application also causes prejudice to the respondents as it does not enable us to know what case to meet.
18. The vagueness permeates all of the prayers claimed by the DA.
Non-joinder
19. The DA makes use of a number of anecdotes to suggest that the CD Policy is fundamentally flawed.
20. The DA cites examples without joining the relevant parties who may be in a position to answer. The DA impugns:
20.1. PRASA1 but fails to join it or the Minister of Transport so that they might respond to the allegations made concerning the relevance or otherwise of the CD Policy;
20.2. Transnet2 and Eskom3 but fails to join it or the Minister of Public Enterprises so they might respond to the allegations made concerning the relevance or otherwise of the CD Policy;
20.3. SARS4 but fails to join it or the Minister of Finance so they might respond to the allegations made concerning the relevance or otherwise of the CD Policy.
21. It is from these leaps of logic that the DA surmises that the CD Policy is unconstitutional and ought to be declared invalid. Without a word from those impugned the Court is not placed in a position where it can determine the validity of the DA's analysis or make a decision concerning the constitutionality of the CD Policy.
STATE CAPTURE COMMISSION
Work of the State Capture Commission
22. The DA's case emanates from the work of the State Capture Commission. The State Capture Commission was established in January 2018. It was established by the former President in accordance with his powers under section 84(2)(f) of the Constitution, 1996 and the Commissions Act 8 of 1947 ("Commissions Act"). The proclamation establishing the State Capture Commission is attached as "MCR4".
23. The State Capture Commission conducted its inquiry for about four years (and sat for over 400 days). Between December 2021 and June 2022, it handed over a report which comprised of 6 parts. Each with between one and four volumes spanning close to 6000 pages (and a total of 17 volumes).5
24. The work of the State Capture Commission has been invaluable. It has resulted in the public airing of how state capture and corruption came to take place at alarming levels over a number of years, from about 2009. Transnet, Denel and Eskom were among the entities for which evidence was gathered from over 300 witnesses.
25. I appeared before the State Capture Commission voluntarily in order to provide oral testimony on two occasions: firstly, in my capacity as the President and former Deputy President of the ANC in April 2021 and secondly, in my capacity as President of the Republic and former Deputy President of the Republic in August 2021.
26. The CD Policy was among the issues on which evidence was given.
State Capture Commission findings and recommendations
27. The State Capture Commission delivered its final list of recommendations to me in June 2022. It dedicated Volume 2 in Part VI to my evidence and the "Role of the ANC and Parliamentary Oversight". The first and relevant pages of the report are attached as "MCRS".
28. The State Capture Commission stated that:
"His [The President's] own analyses, as well as those of the party, detailed above, clearly show that the cadre deployment process can be abused to facilitate corruption and possibly State Capture."6 (Emphasis added.)
29. It then quoted me as saying:
"Let us accept, Chairperson, that some of those deployments were done in a particular era and in a particular way and right know [sic] as we look at that past state we were able to look at it and say we actually need to do things differently. ,,1 (Emphasis added.)
30. To which the State Capture Commission added:
"This statement implies that certain deployments under the previous regime were done in a way which enabled the appointments of corrupt individuals. ,,a (Emphasis added.)
And,
"The ANC's deployment policy itself identifies that the process can be abused. It notes that 'the potential for NEC members to have political or other interests in the deployment of particular cadres to particular positions cannot be ruled out.'
(Emphasis added.)
31. Repeatedly, therefore the State Capture Commission spoke of the possible (not certain) use of the CD Policy for improper goals. The State Capture Commission did not find that the CD Policy is always used for nefarious purposes. It also did not find that all appointments made using the CD Policy were corrupt, for corrupt reasons or of corrupt persons. Instead, what it said was:
"It may be that many politically motivated appointments in fact occurred independently of the Deployment Committee. The party has indeed made much of its struggles with factions and divisions. 10 (Emphasis added.)
32. Therefore, the CD Policy may have been utilised for ill-purposes. But, the converse is also true: it may have been avoided for ill-purposes. Any policy, no matter how well-intentioned, could be used for ill-gains.
33. The State Capture Commission ultimately made the following finding:
"What is said above makes it clear that within the current constitutional and statutory framework it is unlawful and unconstitutional for a President of this country and any Minister, Deputy Minister or Director-General or other government official, including those in parastatals, to take into account recommendations of the ANG Deployment Committee or any deployment committee or any similar committee of any other political party in deciding who should be appointed to a position in the public service or in organs of state or parastatals. 11
34. Part VI, Volume 2 did not contain any recommendations on the CD Policy. Rather, the State Capture Commission delivered Part VI, Volume 4 titled 'All the Recommendations'. The first and relevant pages of the report are attached as "MCR6". As to the governance of SOEs the State Capture Commission Report reads:
"243. Although the File documents envisage the formalization of the appointment processes including a limited form of public involvement (the public may be invited to identify candidates) the Nomination and Selection of candidates remain firmly controlled by the relevant Government Minister. It is difficult to see why the proposed system will be any better placed to deal with state capture than it was before. There are no effective mechanisms which would prevent cronyism and cadre deployment from continuing to dominate appointment to the Boards and to senior executive officers.
244. The recommendations of the Commission, it is submitted, must insist on a truly independent and transparent process free from political manipulations so that the ultimate appointment made by a Minister is genuinely the result of a merit-based selection process."12
35. It is clear from a reading of these paragraphs that they do not constitute recommendations from the State Capture Commission but instead submissions made to the Commission on what should be contained in its recommendations.
36. Ultimately, the State Capture Commission did not recommend that the CD Policy be revoked or that the nomination and selection of candidates be removed from the control of Government Ministers. Instead, it recommended the establishment of a Standing Appointment and Oversight Committee:
"In the circumstances the Commission recommends the establishment of a Standing Appointment and Oversight Committee tasked to ensure, by way of a public hearing, that any person nominated for Board appointment or as the Chief Executive Officer, Chief Financial Officer, or Chief Procurement Officer of an SOE meets the professional, reputational and eligibility requirements for such a position. The Committee will also investigate and act upon any complaints received concerning the misconduct of any Board member or senior executive in the discharge of his or her duties."13
37. It also did not accept the submission that Ministers be absolved of their authority to appoint office-bearers in SOEs and recommended instead that the Standing Appointment and Oversight Committee -
"recommend to the shareholder Minister concerned the names of at least one but not more than three of the best qualified candidates suitable for appointment for every vacancy on the Board or senior executive post".14
38. The recommended sphere of responsibility for the proposed Standing Appointment and Oversight Committee does not appear from the State Capture Commission Report to extend to non-SOE appointments.
39. At the risk of over-emphasising the point, the State Capture Commission did not recommend that the ANC do away with the CD Policy. It also did not recommend that ANC members not suggest to qualified persons that they apply for these positions or recommend that the Minister be prohibited from consulting with other members of the ANC prior to filling the vacancy.
40. It appears that the DA would have liked that the State Capture Commission recommend that the CD Policy be revoked. This much is clear from one of the questions the DA suggested be posed to me by the Evidence Leaders of the State Capture Commission:
"Do you believe that the outlawing of cadre deployment and the bolstering of the separation between party and state would be an important element of preventing state capture and corruption in the future?"15
41. This application therefore seems to be an attempt by the DA to achieve through this Court what the State Capture Commission did not and could not afford it - outlawing the CD Policy.
42. In conclusion, the State Capture Commission did not find that all appointments made utilising the CD Policy were a function of state capture or corruption. The State Capture Commission also did not find that all questionable appointments were made utilising the CD Policy or with the involvement of the CD Committee. In some cases, state capture took place as a result of the abuse of the policy rather than its implementation. As demonstrated below, the abuse of the CD Policy is already being addressed.
43. In any event, the DA application seeks to pre-empt the proper process afforded to me in the context of presidential commissions on inquiry. The State Capture Commission made its recommendations to me. Its recommendations are not binding. They are aimed at assisting me, as President, to address the issues that were at the heart of the inquiry. I take the findings and recommendations of the State Capture Commission very seriously and ought to be afforded the (court ordered) opportunity to consider them all with a view to making a determination as to implementation. As I illustrate in further detail below, I am entitled to a period of four months after receipt of the full report (i.e. until 22 October 2022) to consider the report including its recommendations and thereafter express my intention regarding the implementation thereof to Parliament. That period has not yet elapsed. I am taking heed of all the recommendations by the State Capture Commission, including that related to the need for a transparent, capable and ethical public administration.
44. This application seeks to leap-frog the process already set by this Court i.e. it seeks to by-pass my presidential powers to consider the State Capture Commission's findings and recommendations.
Efforts to curtail improper interference in public service appointments
45. Since I assumed the office of President in February 2018, government has embarked on several measure to improve public administration, including to address the problem of improper interference, from whatever quarter, in public service appointments.
46. These include measures to end state capture, to rebuild damaged institutions and to foster a culture of ethical public service and accountability. In the main the measures were aimed at changing the way in which the Cabinet works, to diminish if not extinguish working in silos, strengthening institutions that had been crippled or 'captured', starting with changes in leadership of these institutions, pursuing a long standing project of changing the way in which SOEs were managed and overseen by Government as shareholder, and making relevant necessary policy decisions, including enacting legislation, to address shortcomings or reinforce oversight where needed.
47. First, I have signed performance agreements with every member of Cabinet, which agreements have been published on the government website. These agreements make clear what is expected of each Minister and on what basis I will judge their performance. As a consequence of the conclusion of these performance agreements, every Minister knows what is expected of them, and every Minister knows what his or her colleague is working on. No-one works in isolation. The more transparency and coordination, the better the governance of our state.
48. Second, government has made progress toward professionalising the public service.
48.1. The exercise of professionalising the public service is aimed at ensuring that the public service is shorn of political partisanship and that the most qualified individuals enter its ranks. As stated in my second State of the Nation Address of 2019:
"We are committed to building an ethical State in which there is no place for corruption, patronage, rent-seeking and plundering of public money. We want a corps of skilled and professional public servants of the highest moral standards - and dedicated to the public service."16
48.2. The National Development Plan ("NDP") deals specifically with the need to build a capable and developmental state.17 Considerable work is being done to ensure better performance of government structures. The NOP emphasises the need for "well-run and effectively coordinated state institutions with skilled public servants who are committed to the public good and capable of delivering consistently high-quality services, while prioritising the nation's developmental objectives." The NOP outlines what needs to be done to achieve this, which is in summary:
48.2.1. Stabilising the political-administrative interface by building ''professional public service that serves government, but is sufficiently autonomous to be insulated from political patronage. This requires a clearer separation between the roles of the political principal and the administrative head."
48.2.2. Making the public service and local government administration careers of choice.
48.2.3. Developing technical and specialist professional skills.
48.2.4. Strengthening delegation, accountability and oversight - this includes promoting "greater and more consistent delegation supported by systems of support and oversight", making "it easier for citizens to hold public servants and politicians accountable, particularly for the quality of service delivery", and ensuring "effective oversight of government through parliamentary processes."
48.2.5. Improving interdepartmental coordination.
48.2.6. Taking a proactive approach to improving relations between national, provincial and local government.
48.2.7. Strengthening local government.
48.2.8. Clarifying the governance of SOEs - "the major SOEs need clear public interest mandates and straightfo,ward governance structures that enable them to balance and reconcile their economic and social objectives."
48.3. Late in 2020 the draft national implementation framework towards the professionalisation of the public service was approved by Cabinet for public consultation and public hearings were held in this regard. The final framework towards the professionalisation of the public service will be tabled before Cabinet within the next month.
49. The professionalisation of the public service will serve to inhibit the appointment of persons who are not qualified for the jobs they are given. This should help, for example, to reduce incompetence in government departments or municipalities. It will also limit opportunities for patronage. Last but not least, it will ensure people employed by the state are not indebted to certain interests for their jobs, thereby making them less likely participants in state capture. Steps have already been taken to make the appointment of key office-bearers more transparent.
50. Third, in September 2021, the Department of Public Enterprises gave a presentation to the NCOP Public Enterprises and Communication on 'Measures taken to improve oversight over State-Owned Companies (SOCs)'. In it, the DPE stated that the Department of Public Service and Administration was in the process of developing and implementing a standardised approach to the appointment of SOC Boards. The presentation is attached as "MCR7".
51. Fourth, in May 2022, the Minister of Public Enterprises gave a budget vote speech. In it he stated that the Presidential SOE Council has recommended that government adopt a centralised shareholder model for its key commercial state owned companies. This is aimed at separating the State's ownership functions from its policy-making and regulatory functions, minimise the scope for political interference, introduce greater professionalism and manage state assets in a way that protects shareholder value. As part of this, preparatory work has begun for the establishment of a state-owned holding company to house strategic SOEs and to exercise coordinated shareholder oversight. The speech is attached as "MCR8".
52. Finally, steps have already been taken to be more transparent in appointment processes. As an example, once the Constitutional Court determined that Mr Shaun Abrahams had not been lawfully appointed as National Director of Public Prosecutions ("NDPP"), a public and transparent process was undertaken to identify a new NDPP. This was done in an effort to help South Africans regain confidence in the institution. As such, they would be able to see who the candidates were, follow the interviews of each candidate, and see how the final choice was made. The appointment of Ms Shamila Batohi as NDPP was, as a result, embraced and welcomed by all, and faith that she would right the NPA ship started growing from that moment. Other examples are provided in my affidavit to the State Capture Commission in my capacity as ANC President which is attached as"MCR15".18
53. This is all to say that steps have already been taken to minimise and ultimately prevent undue interference in the appointment of public servants. These changes circumscribe the scope for abuse without doing away with the CD Policy which, as I demonstrate below, is important in democratic societies.
State Capture Commission did not find that I misled it
54. The DA states that I misled the State Capture Commission.
"26. At the outset, however, it is important to highlight that the President and Minister Mantashe repeatedly emphasised at the Commission that the Cadre Deployment Committee merely "recommends" candidates, and that it does not dictate to Ministers and other officials, who to appoint. This was done in a bid to sanitise the policy and create the impression that it is not at odds with the Constitution.
27. It is now clear that this evidence was false and misleading. The minutes of the Cadre Deployment Committee between 11 May 2018 and 17 May 2021 demonstrate that the Cadre Deployment Committee does not merely recommend, it appoints."19
55. My evidence was neither false nor misleading. I invite Mr Steenhuisen to retract the accusation made against me.
56. There are simply different interpretations for the recommendation function of the CD Committee. This is demonstrated by the interaction between myself and Mr Pretorius during my oral evidence before the State Capture Commission on 28 April 2021. Mr Pretorius said:
"In fairness to those who have given the evidence and in fairness to yourself, Mr President. I need to put to you certain passages from the evidence that have told the Chair of the hard interpretation of deployment. In other words, that it goes much further than recommendation.
And then I would like to put to you, certainly of your own statement, which quite frankly highlights the problems that you face or have faced and do face. The evidence of Lynne Brown in relation to SOE boards, more than one, was to the following effect:
'It must be borne in mind that all appointments to the boards of state-owned entities must also be approved by the African National Congress Deployment Committee where after it gets approved by Cabinet...'
That was her clear and unequivocal evidence. Do you have any comment? PRESIDENT RAMAPHOSA: [No audible reply]
ADV PRETORIUS SC: And this was in the period 2014 to 2015, at least.'
57. To which I responded:
"Yes, that is where the interpretation of this recommendation process would come in. And that is why I referred to the role of the minister because the minister as the executive or it plays a critical role because it is the minister who, in the first instance, knows and realises that the board's tenure has come to an end. I need to replenish the members of the board and these are the skills that are needed. I need or we need accounting skills, corporate governance skills, financial skills, you name it, environmental and so forth and we need to have a gender balance.
So it beholds on the minister and I deal with this, you know, on an ongoing basis even now as President. It beholds on the minister to then come forward and say: I need to replenish the six members on the board.
And what she will often have to do or be encountered with is. Have you sourced, have you worked out a list, a list of names that should be preferred? And the minister's task is to do precisely that and having done that, a wise minister would then say: I have got like 18 names and I need six or 12 names. They would then put that forward and say to the Deployment Committee - and then the Deployment Committee would say - and quite often a pamphlet is set out or an advert for people to apply.
And quite often you get many applications and I actually appreciate that because it basically means you are opening up quite a number of these positions to South Africans who can play a role in enhancing governance in some of our state-owned enterprises. And it is the minister who must then summarise all that, bring together a summarised list or preferred list or summarise and then put it forward as a near or shortlist.
And once that has happened, the Deployment Committee would say: Well, we would recommend the following. And sometimes they need six and there is 18, they would recommend: Why do you not go forward with 12 and then let us see what the selection in government then comes up with. And that is where I would say maybe Lynne Brown then says this got to be approved.
But I will, as the former Chair of the Deployment Committee, will be able to say clear emphatically that it is that recommendation process. And as you can hear, it goes through a number of processes and this may be confusing and this may even create doubt in people's minds but that is the actual process as it unfolds and as it happens. And in the end, Cabinet - even with Cabinet - Cabinet then will then be presented with say maybe a near final list.
But Cabinet then finally, Chairperson, deliberates on each of the names where Cabinet has a role in deciding because of legislation for that entity. It deliberates on that and some names fall off at Cabinet level and some on those lists are sent back to the minister or Cabinet says: Take this back. We are not about to approve this.
And the ministers pull out their hair and be frustrated but that is the rigorous role that is involved in the selection of those people. And may I add deployment committee level, I know of ministers who have been there three times or more just to get a list recommended.
So it is not as easy as that where you just have a list which is underpinned by nefarious intensions, just approved, it is quite vigorous and I have known and I have seen ministers coming out of that type of process just pulling the sweat off their foreheads because it means they have achieved something. It is not an easy process."21
58. The first and relevant pages of the transcript are attached as "MCR9".
59. It follows that what may be viewed by some as more than a recommendation is simply a function of the rigor of the implementation of the CD Policy for good reason. However, the fact that I have an interpretation different from that held by the DA does not mean that I expressed a falsehood or misled the State Capture Commission.
60. Finally, that the CD Committee minutes may express themselves in a way that suggests to the DA that the Committee plays a more interventionist role in appointments does not mean that it, in fact, does. The CD Committee is entitled to express its wishes and frustrations as it likes.
Independence of the Judiciary
61. The State Capture Commission made the following observation:
"408.10 I noted that there was a concern that factionalism and other such issues would be carried into the judiciary. He asked the President to clarify whether this meeting was an exception, or if the Deployment Committee did in fact involve itself in judicial appointments. President Ramaphosa suggested that this should be viewed in a 'positive light' as the ANG was dedicated to transforming the judiciary. Although judicial officers should not have a relationship with the ANG, the governing body must play a role in transforming the judiciary.
408.11 This concession does contradict President Ramaphosa's and Mr Mantashe's earlier statements that the Committee does not consider judicial appointments and only encourages candidates to apply."
62. It is incumbent on me to clarify this point. There was no contradiction in my testimony. Like a number of other parties represented in the national legislature, the ANC has delegates who participate in the Judicial Service Commission ("JSC"). In their role at the JSC, they follow the commands of section 174(2) of the Constitution to "reflect broadly the racial and gender composition of South Africa". The CD Policy makes no express reference to judicial deployment. It is not relevant to judicial deployment and the CD Committee plays no role in such deployment. It expresses its views on candidates. Such views are aired in the JSC interviews with the candidates by ANC delegates. Other political party delegates will have their own views. Ultimately it is the JSC as a whole, chaired by the Chief Justice, that deliberates and makes recommendations for appointment.
NATURE OF THE CD POLICY
History of the CD Policy
63. In my affidavit submitted to the State Capture Commission I set out in detail the history of the CD Policy, the purpose of the Policy, and the evolving nature of the Policy. I do not intend to repeat the contents of that affidavit here. I annex it as
"MCR10".
64. The nature and purpose of the Policy is also set out in the answering affidavit filed on behalf of the ANC.22
65. For the purposes of this affidavit I wish to highlight a few aspects:
65.1. The CD Policy stems from a period when the ANC was preparing to govern. Developing a cadre of competent leaders who are competent and who understand the transformational project under a democratic Constitution is essential.
65.2. During the tenure of South Africa's first democratically elected president
- Mr Nelson Mandela - many state institutions were re-energised to give effect to the post-apartheid order to fit in with the new spirit of reconciliation and inclusivity but also embody new ideological directions.
65.3. The CD Policy serves a dual purpose. On the one hand, it ensures that state institutions reflect the demographics of our country, but most importantly that they include persons that embrace the new constitutional dispensation. On the other it ensures that persons most 'fit-for-purpose' are appointed whenever critical positions have been identified.
65.4. The CD Policy applies to senior positions in government such as Directors-General and Deputy Directors-General as well as leadership in critical institutions including the private sector. It does not apply to Cabinet because as President, I have the constitutional prerogative to appoint members of Cabinet. While inputs and opinions may be sought by the President in making these appointments, these are not matters that would serve before a CD Committee. It also does not apply to public representatives in the various legislative and executive bodies for which there are specific selection processes in place.
65.5. The CD Committee essentially operates like a recommendation committee. The CD Committee does not decide who should take up specific positions. Rather it discusses who should be encouraged to apply for positions and makes recommendations to the persons making the appointments. The CD Committee may furthermore provide guidance to ministers on critical appointments
65.6. The CD Policy is not static. It evolves to address shortcomings within it as and when such shortcomings are identified. For instance, during its 53rd National Conference, the ANC decided that it needed to monitor performance of those persons who had been deployed to various positions. This meant making sure that people were performing at the level required of them. The resolutions of the 53rd National Conference are attached as "MCR11".
65.7. The ANC's 54th National Conference went further and determined that continual development would be required to ensure there was no sense of complacency among persons developed and trained to take the lead
in critical institutions. The resolutions of the 54th National Conference are attached as "MCR12".
Global approach to political public service
66. The DA would have the Court believe that there is something inherently improper about the recommendation for deployment of persons by the ANC to the public service. It relies on a few anecdotes to suggest that the CD Policy is inconsistent with the Constitution and/or the Public Service Act and deployment should never take place under any circumstances.
67. However, the deployment of persons by political bodies to serve in the administration is not only a common feature of democracies around the world, it is essential for the proper functioning of a democracy.
68. In 2007 the Organisation for Economic Cooperation and Development commissioned a study on this very subject which resulted in a report titled 'Study on the Political Involvement in Senior Staffing and on the Delineation of Responsibilities Between Ministers and Senior Civil Servants' ("OECD Report") which is attached as "MCR13".
69. The OECD is an international organisation of about 38 member states mainly in the Global North. South Africa, together with three of its fellow BRIGS countries, is a partner of the OECD. The OECD aims to develop evidence-based international standards and find solutions to a range of social, economic and environmental challenges.
70. The authors of the OECD Report drew on an empirical examination of a number of different national systems around the world including Belgium, Denmark, France, Italy, Korea, Mexico, New Zealand, Poland, Sweden, the United Kingdom, the United States and South Africa.
"The report highlights that political involvement in administration is essential for the proper functioning of a democracy. Without this an incoming political administration would find itself unable to chanae oolicv direction. However public services need protection against being misused for partisan purposes, they need technical capacity which survives changes of government, and they need protection against being used to impair the capacity of future governments to govern."23 (Emphasis added.)
71. The OECD Report states that:
"In sum, the study suggests that more political influence in staffing matters may work well, if there are other checks and balances overseeing functional responsibilities, and mav be essential if the alternative is very weak oolitical traction on the oublic service."24 (Emphasis added.)
72. As I demonstrate below, the very purpose of the CD Policy is to ensure that the public service is aligned to the constitutional objective of transformation. This policy direction would become weakened had the CD Policy not been put in place. The CD Policy is therefore consistent with international trends around the world and ought not to be viewed as inherently improper or unconstitutional. Indeed, as I pointed out in my affidavit to the State Capture Commission, the DA itself has "a process of vetting candidates for employment in DA-led municipalities".25
73. The CD Policy is also a function of a political party operating within the constitutional framework of a proportionally representative democracy that the ANG deploy persons to these bodies.
74. A party running for the elections at various levels will do so on the basis of a manifesto and policies. The electorate will vote for a particular party based on that manifesto. The electorate expects that if a particular party gains the majority vote in the elections, it will action the contents of its election manifesto. It is therefore imperative that persons placed in leadership positions are able to action the will of the people as demonstrated by their election at the ballot box.
75. What is important is that candidates that have the support of a political party also have the requisite skills, training and commitment to ethical public service that is required by section 195 of the Constitution.
DA'S EXAMPLES ARE NOT RELEVANT TO CD POLICY
76. The DA states that the State Capture Commission Report set out how cadre deployment resulted in the capture of critical state institutions and lists a number of examples of this.
76.1. The first is the appointment of Siyabonga Gama at Transnet. Notably, the DA does not even assert that the CD Policy was the reason for Mr Gama's appointment or that the CD Committee recommended him for such appointment. The DA could not do so because Mr Gama was not recommended or approached by the CD Committee. 26
76.2. With regard to Messrs Singh and Molefe's appointments, as the ANC states in its affidavit, neither of their candidatures went through the CD Committee.27
76.3. With regard to Mr Lucky Montana, again the DA does not even allege that Mr Montana was deployed by the ANC. In fact, the DA merely speculates that this is the case saying that Mr Montana "is widely believed to have been deployed". 28
76.4. And again, the DA's reference to Mr Tom Moyane29 does not illustrate that he was deployed by means of the CD Policy. In fact, the DA does not even suggest that he was. It simply quotes a passage of the State Capture Report that states that some CEOs and board of directors of SoEs had been approved through the national deployment committee. The fact is that there was no application of the CD Policy at all in Mr Moyane's appointment.
77. The DA begins its narrative on 'cadre deployment as a conduit for state capture' by stating that the examples it highlights relate to cadre deployment.30 However, the examples it goes on to give do not demonstrate the use of the CD Policy or the involvement of the CD Committee. In fact, when setting out the narrative relevant to Mr Gama, Mr Montana and Mr Moyane, the DA does not even state or assert that these persons were appointed through the CD Policy or with the involvement of the CD Committee. It simply speculates that this is the case.
78. The DA attaches to its affidavit an affidavit deposed to by Mr Leon Amos Schreiber, a member of the National Assembly for the Democratic Alliance. Mr Schreiber attaches to his affidavit a notice which he complains is evidence of "a// of the harm set out by the DA in its application". 31 With respect, like a number of the other examples used by the DA in this application, this affidavit and its attached notice is irrelevant.
79. Firstly, the DA does not present any evidence whatsoever demonstrating that the persons called to the meeting have been subjected to the CD Policy or the regional CD committee. There is simply no evidence that this notice relates to the CD Policy in any way.
80. Secondly, the CD Policy does not state that people who have been deployed may be summoned to meetings by the ANC, must ensure that they attend meetings when they have been summoned by the ANC, and may be held responsible for other people's failure to attend meetings.
81. And thirdly, the DA does not cite those mentioned in the meeting nor seek a declarator from this Court that such invitations are unlawful or unconstitutional. For that reason, this affidavit should be disregarded.
82. I submit that declarations of constitutional invalidity cannot be made based on mere speculation. It would be impermissible for the Court to declare the CD Policy unconstitutional based on speculations by the DA not supported by any facts whatsoever. These conjectures by the DA demonstrate not only that it has not made out a case for the relief it seeks, but that it itself, cannot state under oath that the CD Policy was the reason for the appointment of the relevant persons and the reason for the capture of the relevant institutions.
CD POLICY SPEAKS TO SUBJECTS NOT IMPUGNED IN THIS APPLICATION
83. It appears from the DA's affidavit that its concerns with the CD Policy relates to deployment and not training, monitoring, or consultations and discussions that also form part of the CD Policy. However, the DA seeks an order from the Court that declares the entire CD Policy inconsistent with the Constitution.
84. The CD Policy concerns deployment in some respects but also speaks to other issues as well. For instance:
84.1. Clause 25 calls for the development of a human resource development strategy:
' comprehensive human resource development strategy must be developed particularly targeting youth and women leadership, including the mapping of possible career paths and the advancement of transformation of gender relations."32 (Emphasis added.)
84.2. Clause 39 speaks to the relationship between constitutional structures of the ANG and government executives and states that:
"While the relationship between these two structures is often best worked out in practice and convention, some quidelines are necessarv to help guide the organisation. We need to ensure an understanding, in theory and practice, that government implements the mandate of the organisation and is accountable to the political structures as well as to the public based on the electoral platform of the Movement."33 (Emphasis added.)
85. The DA has not made out a case that any of the deployment provisions of the CD Policy are unconstitutional, let alone a case of unconstitutionality of the CD Policy in its entirety.
CD POLICY IS NOT INCONSISTENT WITH THE CONSTITUTION OR THE PUBLIC SERVICE ACT
Failure to plead the constitutional rights allegedly violated
86. Under the 'Preliminary Points' heading, I set out the extent to which the DA's application was vague and prejudicial to the respondents. However, in addition to being vague, the DA's application is also simply sparse.
87. The DA appears to place reliance on sections 7 and 8 of the Constitution in order to found a cause of action against the respondents.
88. Section 7 provides, amongst other things, that the Bill of Rights is the cornerstone of our democracy and section 8 provides that the Bill of Rights is binding on both natural and juristic persons - what is commonly referred to as 'horizontal application'.
89. But the DA does not allege the violation of any justiciable human right. What it does instead, is state that:
"133. Section 7 of the Constitution requires the State to adopt measures that promote the Constitution and the rights in the Bill of Rights. As the Constitutional Court has held in Glenister, this means that the State must adopt positive measures that 'prevent and root out corruption and cognate corrupt practices'.
134. Section 7 therefore demands that the provisions of the PSA sufficiently root out corruption by removing any possibility for the influence of the ANC's cadre deployment policy on appointments in the public administration."34
90. There are three fundamental problems with the DA's approach to its constitutional challenge:
90.1. Firstly, it is incorrect. I am advised that the Constitutional Court has cautioned litigators bringing constitutional challenges to be specific in the averments they make concerning the provisions violated. Without doing so, no proper constitutional challenge can be said to have been brought.
90.2. Secondly, the very provisions relied upon by the DA make clear that they buttress (or lay the foundation) for justiciable rights. In other words, the very provisions upon which the DA relies (sections 7 and 8) demand that they assert other provisions. The DA fails to heed the command of those provisions.
90.3. Third, it constrains the Court which is required to conduct a multilayered inquiry when a constitutional challenge is brought including determining:
90.3.1. the parameters of the right;
90.3.2. whether the law or conduct complained of interfere with such right;
90.3.3. the internal qualifiers of the right;
90.3.4. whether the law or conduct complained of fall within the limits of the internal qualifiers;
90.3.5. whether the limitation is justifiable.
91. What the DA does is place reliance on sections 195 and 197 of the Constitution, but it cannot rely on these sections to make out a case against a voluntary organisation against whom relief is sought. In any event, as I show below, the CD Policy can be read in a manner consistent with these provisions.
Constitutionally-compliant reading of the CD Policy
92. I am advised that before any Court engages in an analysis on the extent to which an impugned instrument violates a provision of the Constitution, it first enquires whether that instrument may be read in a manner that is consistent with the Constitution.
93. In the event that the CD Policy may be subjected to the DA's constitutional challenge, I submit that it ought to and can be read in a manner that is consistent with the Constitution. The CD Policy is consistent with the Constitution as it contains provisions which, like the Constitution, are:
93.1. Transformational in intent. Section 1(b) of the Constitution states that this nation is founded on the value of non-racialism and non-sexism and section 9(2) permits measures designed to protect or advance persons disadvantaged by unfair discrimination.
93.2. Aimed at realising the full potential of human beings as illustrated by section 195(1)(h) of the Constitution.
93.3. Designed to facilitate accountability and transparency and openness as set out in the founding provisions of the Constitution.
94. Like the Constitution, the objectives of the CD Policy and its provisions are transformational. For example, Clause 4 of the CD Policy reads:
"Strategic deployment of ANC cadres played an important role in the ANC taking control of the post-liberation state. The ANC's deployment committees on national and regional levels played a crucial role in state transformation. contributing to reasonable success in deracialising the public service. This also helped ensure that bureaucratic sabotage bv reactionary forces intent on undermining the democratic order would be minimised."35 (Emphasis added.)
95. The CD Policy is also driven by service-delivery. It provides, in relevant part:
"Our cadres deployed in whatever centre should take with them the qualities and attributes that we hold dear as a Movement. This includes putting service to the people, an ethic of work and selflessness, respect for the senior structures and cadres of the Movement, responsiveness to the needs of the people and a collective approach to matters.
In our deployment we should consciously strive to dispel the notion that we have become a Movement and a leadership which is distanced from the people whom we have served in our long struggle for liberation. We must be true to our tradition of putting the interests of our people and our country first."36 (Emphasis added.)
96. It is accordingly consistent with section 195 of the Constitution.
97. The CD Policy does not support or demand the appointment of persons who are not qualified for positions. That would be counterproductive. It iterates the importance of qualification, skill and expertise numerous times:
98. At the very beginning it states that:
"In 1994 the ANG recommended the deployment of suitablv qualified personnel into structures of government at all level .(Emphasis added.)
99. It also provides that:
"Focus should not only be on academic or orofessional exoertise but should also take into account skills and expertise in doing constituencv work and working with the masses on the ground." (Emphasis added.)
And,
"The deployment strategy will ensure that the Movement deploys its cadres in accordance with their knowledge. skills. abilitv and exoerience."38 (Emphasis added.)
100. The CD Policy itself provides that it should not be utilised for ill-gains:
"Some of the situations and practices to avoid would be ... [a]llowing political structures to constantly interfere in the running of government and seeking to replace Executive structures of government". 39
101. In addition, in many respects, the CD Policy, contains qualifiers and checks and balances that ensure that those objectives are realised in a balanced and reasoned manner. I reiterate that the CD Policy is not a static document.
102. Most importantly, the CD Policy does not, and cannot, override legislative requirements for the appointment of public servants.
CD Policy is not inconsistent with the Public Service Act
103. The CD Policy is merely an internal policy of a voluntary association. It need not comply with the Public Service Act. Were the Policy to be abused in a manner that results in the appointment of public servants in direct violation of the Public Service Act, the provisions of the Act prevail. Any government conduct that is in violation of the Act may be set aside. There is no legal basis upon which the honourable Court can order that an internal policy of a voluntary organisation is invalid on the basis that it does not comply with a statute. The relief sought is therefore misguided. I am advised that legal submissions in this regard will be advanced in written argument.
104. For the sake of completeness, however, I address the crux of the DA's challenge to the CD Policy as it relates to the Public Service Act. The DA suggests that the CD Policy is inconsistent with the Public Service Act for two reasons: (a) it usurps the ability of Ministers to exercise executive function in terms of section 9; and
(b) it undermines the criteria for appointment set out in sections 10 and 11 of the Public Service Act.40
105. Both of these allegations are without basis.
106. Firstly, there is no provision in the CD Policy that usurps the abilities of Ministers to exercise executive function. The DA does not point to any provision of the CD Policy which does so. This is because there is none.
107. What the DA's true gripe relates to some instances where it appears to the DA that Minister's executive authority was usurped. The DA ought to have brought a case to review the appointments made in those cases instead of challenging the CD Policy for something it does not do.
108. Secondly, there is nothing in the Public Service Act that denies Ministers the right they have to consult with their colleagues in cabinet prior to making appointments. Considering the views of others without fettering one's own discretion is not unlawful.
109. Finally, section 11(1) of the Public Service Act requires that appointments have due regard to equality and the other democratic values and principles enshrined in the Constitution. This is consistent with what the CD Policy aims to do: to capacitate the public service with persons who would advance the transformational project.
PUBLIC SERVICE ACT IS NOT UNCONSTITUTIONAL
110. The DA seeks an order declaring that Chapter IV of the Public Service Act is unconstitutional as it does not insulate public sector appointments from the CD Policy. First, I am advised that that is not a legal basis for a declarator of constitutional invalidity. The DA is required to assert which provisions of the Constitution are violated by the legislative provisions. Second, assuming that the DA's constitutional concern is about the independence of the public service, it does not allege that the Public Service Act is unconstitutional because it does not provide for an independent public service. It merely states that the Act is unconstitutional because it does not protect against the ANC's Cadre Deployment Policy.
111. The DA seeks to rely on Glenister v President of the Republic of South Africa and Others.41 I am advised that reliance on Glenister is misguided at the level of fact and law. As I have shown, the conclusion that 'cadre deployment is a corrupt practice' is not supported by any facts in the DA's founding affidavit. On this shaky basis, the DA makes a leap of logic by stating that the government is constitutionally obliged to root out corruption by insulating public sector appointments from the CD Policy. Then the next leap - that the constitutionally mandated manner of doing this is through the Public Service Act. In doing so, the DA does not even consider the recommendation by the State Capture Commission for the establishment of a Standing Appointment and Oversight Committee.
112. The difficulty that the DA faces is that is has brought an abstract challenge. It further bases its challenge on speculation and irrelevant facts. I am advised that the Constitutional Court has repeatedly held that constitutional challenges are intended to solve live disputes and not abstract challenges. There is currently no live dispute between the parties concerning the application of the CD Policy.
CONCLUSION
113. In the circumstances, the DA has not made out a case for the relief it seeks. I ask that this application be dismissed with costs, including those occasioned by the employment of two counsel, one of whom is senior counsel.
SEQUENTIAL PARAGRAPH RESONSES TO MR STEENHUISEN'S AFFIDAVIT
114. Ad paras 1 to 5
114.1. Save to deny that the contents of Mr Steenhuisen's affidavit are true and correct, the contents of these paragraphs are noted.
115. Ad paras 6 and 7
115.1. The contents of these paragraphs are denied.
115.2. As I stated during my testimony before the State Capture Commission there are occasions when persons are deployed who are not members of the ANC.
"So the minister will then say we have shortlisted a number of people and in the short listing these are people who have been shortlisted. Some of them may not even be ANC members, some of them may well be ANC members and what is then looked at by the deployment committee is to say we really need someone with experience.
For instance, if it is a railway entity of railways and who has been well-trained and well-prepared and all that, and having done that, the deployment committee could well say well, in our view so and so fits the bill. It could be an ANC person, it could be an [sic] non ANG person. completely unattached to the ANC, that we believe that this person can do the work."42 (Emphasis added.)
116. Ad paras 8 to 11
116.1. The contents of this paragraph are denied.
116.2. I reiterate that the DA has not demonstrated that the CD Policy itself has incapacitated state institutions.
117. Ad para 11.1 to 12.7
117.1. The contents of these paragraphs are noted.
117.2. However, it is denied that the DA has made out a case for the relief it seeks.
118. Ad para 13
118.1. The contents of this paragraph are denied.
118.2. The DA does not have locus standi to bring this application.
119. Ad paras 14 to 19
119.1. The contents of these paragraphs are noted.
119.2. It is highlighted however, that the application is defective for failing to cite the Minister responsible for the SoEs that have been impugned by the DA.
119.3. The DA does not set out how the CD Policy undermines the rule of law.
120. Ad paras 20 and 21
120.1. The contents of these paragraphs are noted.
120.2. They demonstrate that this is an attempt by the DA to obtain the Court's support for its campaign.
121. Ad para 22
121.1. The contents of this paragraph are denied.
121.2. There is no factual basis for the assertion of favouritism.
122. Ad paras 23 and 24
122.1. For reasons set out elsewhere in this affidavit (paragraphs 54 to 60), the contents of these paragraphs are denied.
123. Ad para 25
123.1. The contents of this paragraph are noted.
124. Ad paras 26 to 27
124.1. The contents of these paragraphs are denied.
124.2. I did not express a falsehood or mislead the Court and maintain that the CD Policy envisages recommendations (through discussions and consultations) and not appointments.
125. Ad paras 28 and 30
125.1. The contents of these paragraphs are noted.
126. Ad para 32
126.1. The contents of these paragraphs are denied.
127. Ad para 31
127.1. The contents of these paragraphs are noted.
127.2. The minutes were disclosed to the State Capture Commission in an effort to aid it in its inquiry into state capture.
128. Ad para 32
128.1. The contents of this paragraph and any impropriety they attempt to suggest is denied.
128.2. The letter by the ANG to the State Capture Commission explained that the minutes for the period from December 2012 to December 2017 simply could not be found. The letter is attached as "MCR14". I can confirm that I instructed officials to conduct a search for the minutes for the period December 2013 to 2018 in order to place them before the State Capture Commission. I confirm that the minutes could not be located.
129. Ad para 33
129.1. The contents of this paragraph are denied.
129.2. The State Capture Commission's findings appear in six parts. Its findings demonstrate that state capture, not the CD Policy, has eroded state institutions.
129.3. The DA has not supplemented its affidavit.
130. Ad para 34 to 39
130.1. The contents of these paragraphs are admitted.
131. Ad para 40
131.1. While the CD Policy does not make use of the term recommendation, it repeatedly calls on members to discuss deployment, for instance:
131.1.1. Clause 6.2.1 instructs CD Committees to discuss the deployment of comrades.43
131.1.2. Clause 15 reads:
"Our general approach should be that all strategic deployments should as far as possible be subjected to collective discussions by various structures of the movement. "44
132. Ad paras 41 and 42
132.1. I persist with the contention that the CD Committee only makes recommendations.
132.2. As Ms Hogan stated before the State Capture Commission, the weaknesses lie in the abuse of the CD Policy where the CD Committee is captured.
133. Ad paras 43 to 43.3
133.1. I have had regard to the minutes of the CD Committee attached to the DA's founding affidavit as "FA9". The ANC has provided a response to the minutes in its answering affidavit.45
133.2. I note that the minutes attached are from 22 February 2019 and 17 May 2021 (both days inclusive). I was elected President of the Republic in February 2018 and President of the ANC in December 2017. Because the President is not a member of the CD Committee, I was not a member of the CD Committee. I do not have any personal knowledge of the contents of these minutes.
133.3. I cannot vouch for the authenticity of the minutes nor confirm that they correctly reflect the decisions taken at the respective meetings. That notwithstanding, the minutes do not constitute sufficient evidence that appointments were on the instruction of the CD Committee.
134. Ad paras 45
134.1. The contents of these paragraphs are denied.
134.2. I have already stated that it is not only members of the ANC who are recommended.
135. Ad paras 46 to 48
135.1. The contents of these paragraphs are denied.
135.2. Even the most innocuous and well-intentioned policies can be abused for nefarious purposes. Despite its transformational intent and constitutionally compliant framework, the CD Policy was abused.
135.3. It should however be noted that for most of the instances cited in the Commission Report, state capture took place outside of the CD Policy regime.
136. Ad paras 49 to 58
136.1. The contents of these paragraphs are denied.
136.2. Mr Gama was not a subject of the CD Policy. This evidence is accordingly irrelevant to this issue before this Court.
137. Ad paras 59 to 63
137.1. The contents of these paragraphs are noted.
137.2. Mr Mantashe was not cited as a party to these proceedings.
138. Ad paras 64 to 69
138.1. The contents of these paragraphs are denied.
138.2. I stated that the CD Policy cannot be faulted in principle but there are weaknesses in its implementation:
"Cadre deployment cannot be faltered in principle. It is a common feature of democratic practise around the world and I think it properly describe [sic] and is not diluted to various other intents and forms.
It is a useful process used by governing parties around the world to make sure that the mandate that they had been given by the populous is carried out but we could concede that there are weaknesses in this practical implementation that make the case for greater clarity both within the political parties and the state."46
139. Ad para 70
139.1. When read in full, it is clear that this was a proposition put forward by Mr Pretorius based on Ms Brown's testimony to which there is no audible reply from me.
"ADV PRETORIUS SC: In fairness to those who have given the evidence and in fairness to yourself, Mr President. I need to put to you certain passages from the evidence that have told the Chair of the hard interpretation of deployment. In other words, that it goes much further than recommendation.
And then I would like to put to you, certainly of your own statement, which quite frankly highlights the problems that you face or have faced and do face. The evidence of Lynne Brown in relation to SOE boards, more than one, was to the following effect:
"It must be borne in mind that all appointments to the boards of state-owned entities must also be approved by the African National Congress Deployment Committee where after it gets approved by Cabinet..."
That was her clear and unequivocal evidence. Do you have any comment?
PRESIDENT RAMAPHOSA: [No audible reply]"47
139.2. have repeatedly stated that the CD Committee makes recommendations. Below is an extract of an interaction between Mr Pretorius and I that is similar to that set out above:
ADVOCATE PRETORIUS SC: .... On the one hand there has been evidence that the policy goes far beyond mere recommendation and in fact is a policy implemented on the instruction and mandate of the deployment committee. That is one view and there is certain evidence in regard to that. Whether that is 20 exceptional or the rule, maybe we can deal with in due course when we come to detail.
The other view, which is reflected in your statement and other statements, Mr President, is that the deployment committee goes no further than make recommendations and abides by the formal selection processes that take place for example in the public service.
Those are the two extreme views and whether either is correct or not, Chair will have to consider and decide. Or it may be that neither is correct as a general rule and that there is quite a large grey area between. What would your comment be?
PRESIDENT RAMAPHOSA: The deployment committee, as I said in my statement-in-chief, should really be seen as committee that recommends, the recommendation 10 committee and having been the Chair of the deployment committee as Deputy President, the process that really gets underway is as follows, and maybe I am simplifying it."48
140. Ad paras 71 and 72
140.1. I maintain that anything that goes beyond recommendation is not compliant with the CD Policy.
141. Ad paras 73 to 78
141.1. On the basis of speculation, the DA attributes the appointment of Mr Gama to the CD Policy. To the contrary, as the affidavit of Mr Mashatile for the ANC makes plain, Mr Gama's appointment was not recommended or approved in terms of the CD Policy or by the Deployment Committee.
142. Ad paras 79 to 84
142.1. As with Mr Gama, the DA speculates that the CD Policy is to blame for the appointments of Messrs Molefe and Singh to the Eskom Board. Mr Mashatile corrects the misperception that Mr Singh's candidature served before the Deployment Committee. It did not.
142.2. Mr Molefe was recommended by the Board of Eskom. He had the requisite skills, qualifications and experience.
143. Ad paras 85 to 87
143.1. I note that the DA takes issue with the appointment of Mr Montana but does not suggest that the CD Policy or the CD Committee had anything to do with Mr Montana's appointment.
144. Ad paras 88 to 92
144.1. Again, the DA does not provide any evidence that Mr Moyane's appointment was the result of the CD Policy or the CD Committee.
144.2. Mr Mashatile has confirmed that the CD Committee did not recommend Mr Moyane for the position of Commissioner of SARS.
145. Ad para 93
145.1. The contents of this paragraph are denied.
145.2. The State Capture Commission did not make mention of the CD Policy or CD Committee when narrating the history of Ms Myeni or Mr Motsoeneng's appointments.
146. Ad para 94
146.1. The contents of this paragraph are denied.
146.2. The DA has not presented any facts in support of its contention.
146.3. All those issues herein are attributable to state capture, not the CD Policy.
147. Ad para 95 to 103
147.1. With regards to judicial appointments, it should be noted that all political parties will have a preference. Political parties have a seat at the JSC - in terms of the Constitution. The involvement of political parties in the judicial appointment process is expressly mandated by the Constitution. Ultimately it is up to the JSC to conduct the selection process and recommend appointments to the judiciary.
148. Ad para 104 to 104.4
148.1. The contents of these paragraphs are noted.
148.2. The DA has not demonstrated that it is entitled to the relief it seeks.
149. Ad para 105 to 111
149.1. For reasons set out at paragraphs 86 to 91 above, the contents of these paragraphs are denied.
150. Ad paras 112 to 114
150.1. For reasons set out at paragraphs 92 to 102 above, the contents of these paragraphs are denied.
150.2. The CD Policy is consistent with sections 195 and 197 of the Constitution.
151. Ad para 115
151.1. I have demonstrated in paragraphs 52 above that steps have already been taken to ensure transparency in the appointment processes.
152. Ad paras 116 to 120
152.1. The contents of these paragraphs are denied.
152.2. I have explained in the affidavit before the State Capture Commission which is attached as "MCR1O" and in paragraphs 65 to 73 that the CD Policy attempts to strike a balance between meeting the will of the electorate and effective public service. There is nothing inherently problematic with this approach.
152.3. I note the reference to Constitutional Principle 30. The Constitutional Principles guided the Constitutional Assembly in its drafting of the final Constitution. The Constitutional Principles are not justiciable.
153. Ad paras 121 to 124
153.1. For reasons set out at paragraph 65.5 above, the contents of these paragraphs are denied.
154. Ad paras 125 to 128
154.1. To the extent that these paragraphs correctly quote or paraphrase the Public Service Act, their contents are admitted.
155. Ad paras 129 to 131
155.1. The contents of these paragraphs are denied.
155.2. In any event, the CD Policy is consistent with the Public Service Act.
156. Ad paras 132 to 135
156.1. For reasons already set out at paragraphs 86 to 74 herein, the contents of these paragraphs are denied.
157. Ad paras 136
157.1. The contents of these paragraphs are denied.
WHEREFORE, I pray that the application be dismissed with costs including the costs occasioned by the employment of two counsel, one of whom is senior counsel.
Signed Johannesburg 28 July 2022
For original PDF version and annexures click here.
Footnotes:
1 DA FA, p002-37, para 85.
2 DA FA, p002-33, para 74.
3 DA FA, p002-34, para 80.
4 DA FA, p002-39 para 92.
5 The State Capture Commission may be accessed here: https://www.statecapture.org.za/site/information/reports.
6 State Capture Commission Report: Part VI Val 2, p172, para 432.
7 State Capture Commission Report: Part VI Val 2, p172, para 434.
8 State Capture Commission Report: Part VI Val 2, p172, para 435.
9 State Capture Commission Report: Part VI Vol 2, p242, para 618.
10 State Capture Commission Report: Part VI Vol 2, p245, para 627.
11 State Capture Commission Report: Part VI Vol 2, p253 to 254, para 657.
12 State Capture Commission Report: Part VI Vol 4, p180, paras 243 to 244.
13 State Capture Commission Report: Part VI Val 4, p181, para 245.
14 State Capture Commission Report: Part VI Val 4, p182, para 247.5.2.
15 DA FA, annexure "FA3", p002-82, para 24. ./ ;/-· ::/ j,.-
16 Available here: https://www.gov.za/speeches/2SONA2019. /? .7· /)/
17 Available here: https://www.gov.za/sites/default/files/gcis_document/201409/future-make-it-workr.pdf.
18 President of the Republic of South Africa Affidavit, chapter VII, para 162 et seq.
19 DA FA, p002-16, paras 26 and 27.
20 Transcript of 28 April 2021, p112 line 7 to p113 line 24.
21 Transcript of 28 April 2021, p113, line 3 to p115 line 20.
22 See generally, ANC AA, p004-19, para 44 et seq.
23 OECD Report, p5.
24 OECD Report, p33.
25 Public Protector "Allegations of a breach of the Executive Ethics Code by the Member of the Executive Council responsible for Local Government, Environmental Affairs and Development Planning of the Western Cape Provincial Government, Mr A Bredell", Report Number 23 of 2020/21 attached as "MCR16", para 5.1.17.
26 ANC AA, p00451, para 137.1.
27 ANC AA, p004-51, para 137.2.
28 DA FA, p002-37, para 85.
29 DA FA, p002-38, para 88 et seq.
30 DA FA, p002-32, para 73.
31 Schrieber Affidavit, p002-414, para 15.
32 DA FA, annexure "FA2", p002-66, clause 25.
33 DA FA, annexure "FA2", p002-68, clause 39.
34 DA FA, p002-57, paras 133 and 134.
35 DA FA, annexure "FA2", p002-60, clause 4.
36 DA FA, annexure "FA2", p002-68, clauses 36 and 37.
37 DA FA, annexure "FA2", p002-60, clause 2.
38 DA FA, annexure "FA2", p002-73, clause 53.
39 DA FA, annexure "FA2", p002-70, clause 43.1.
40 DA FA, p002-56, paras 130.1 and 130.2.
41 2011 (3) SA 347 (CC).
42 Transcript of 28 April 2021, p42, lines 4 to 15.
43 DA FA, annexure "FA2", p002-61, clause 6.2.1.
44 DA FA, annexure "FA2", p002-64, clause 15.
45 ANC AA, p004-40, para 106 and p004-58, para 168.
46 Transcript of 28 April 2021, pp 27 to 28, lines 19 to 3.
47 Transcript of 28 April 2021, p112, lines 7 to 25.
48 Transcript of 28 April 2021, p40 line 16 to p41 line 13.
