The Democratic Alliance (DA) says it seeks to get off the “cancer” that played a part in enabling state capture that is cadre deployment.
The DA’s challenge against the ANC’s deployment policy got underway at the Pretoria High Court on Monday.
The party approached the court in June 2022, asking for an order to declare cadre deployment unconstitutional and illegal.
‘Cancer’
The DA has long argued that cadre deployment was inconsistent with the country’s Constitution and the Public Service Act.
The party’s argument to the court relied on a somewhat similar legal basis as stated by the State Capture Commission, which found that the ANC’s deployment policy played a role in the capture of the state’s institutions.
During court proceedings on Monday, DA’s counsel, advocate Anton Katz likened ANC’s cadre deployment policy to a “cancer”.
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“This case is about the root of how it came about that – that tree was built… how that appointment was made taking into account the political considerations of a typical bonding. We are here to chop that cancer from the body politics.
“We are here to chop down the fact that the ANC can think it can have any influence and recommend [appointments].”
He told the court that the “cancer” needed to be removed so “there can be a clean body going forward as the constitutional assembly contemplated the distinction between party and state”.
“The cancer is that there is a policy to recommend to the state what it should do when it comes to appointees.”
Dictation
Katz disputed the ANC’s argument that the deployment committee just merely made recommendations rather than force ministers to appoint cadres that were selected.
He said the policy itself does not state that the committee’s functions were limited to making recommendations.
“They say no no no, we just recommend… we don’t dictate. That’s what they say with the front of the mouth, but deep down in the throat they say ‘if you don’t do what we tell you to do, there are going to be consequences my friend’. And they do this all in secret,” he said.
“There’s been no suggestion by any of the respondents that parts of this policy may be good, but bad parts, if the court were to come to the conclusion, can be cut away. There’s no suggestion of severability.”
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Katz further pointed out the ANC seeking an explanation on why their recommended candidate was rejected is trying to influence government appointments.
“The duty to report and explain a decision to the party exists. If that isn’t dictation then what is?”
The advocate also questioned why government and Minister of Public Service and Administration were opposing the DA’s challenge to the “validity of one particular party’s policies”.
“It’s not appropriate for the government to use state resources, which they have done here, to defend a political party’s [case].”
Watch the proceedings below:
‘Unlawful practice’
AfriForum, which joined the case amicus curiae or friends of the court, also presented their arguments before the full bench on Monday.
The organisation’s counsel, advocate Mark Oppenheimer, told the court that the policy “exposed the ANC’s ambitions to cease total control over every aspects of the state”.
“It wants to wrap its tentacles around everything in South African life,” he said.
Oppenheimer highlighted that the ANC itself, in its heads of arguments, state that the the deployment committee’s recommendations would be in contravention of the Public Finance Management Act (PFMA).
“So they give an example of when it would be unlawful for a minister to act on these recommendations.
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“The ANC also says the party policy recognises the limits of its reach and it cannot encourage government to breach its duties. [In essence], it’s accepted that there is a duty on government not to listen to recommendations of the deployment committee.
“The aim of the policy is to whisper in government’s ear and say pick this person [but] when you come to ANC meetings, wearing your ANC hat and you didn’t listen to their recommendations there will be consequences,” he continued.
The advocate said AfriForum supported the DA’s argument that the policy violated the rule of law.
“Both the government and ANC are parties to an unlawful practice. The government is akin to a thief for hire and the ANC is akin to the criminal network ordering the theft and it is the South African public is being stolen from.”
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