Quote of the week
Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Why ending the ANC’s cadre deployment policy may do little to end corruption and nepotism
The ConCourt decision to reject the ANC’s bid to overturn an order for it to hand over all records of its cadre deployment committee is a victory for openness and transparency. But the ANC’s formal cadre deployment policy is only the tip of the iceberg.
The Zondo Commission of Inquiry into State Capture had much to say about the ANC’s cadre deployment policy, having identified it as one of the main causes of “State Capture”. Pointing out that the stated goal of the policy was to “deepen the hold of the liberation movement over the levers of the state”, the commission argued that the policy was unconstitutional and illegal.
The commission based its view in part on the fact that the policy identified “key centres of authority” to which cadres had to be deployed, arguing that control of these centres of authority helped to facilitate “State Capture”.
It is worth recalling that the “key centres of authority” identified by the policy included: “the Cabinet, the entire civil service (but most importantly from director level upwards), premiers and provincial administrations, legislatures, local government, parastatals, education institutions, independent statutory commissions, agencies, boards and institutes, ambassadorial appointments, and international organisations and institutions.”
I worry that the commission may have misdiagnosed the problem, focusing too narrowly on the problem of “State Capture”, and thus failing to recognise that corruption has become completely entrenched in the ANC and goes far beyond instances of “State Capture”. I also worry that the judgment in which the court ordered the ANC to hand over information about the functioning of its deployment committee may have little practical effect.
To start with, it is unclear whether the court order will yield any new information about the implementation of the ANC’s cadre deployment policy as the ANC had previously told the Zondo Commission that there were no minutes for the deployment committee for the period between 2012 to 2017. This conveniently happens to be the period when Cyril Ramaphosa chaired the committee in his capacity as Deputy President of the ANC.
But even if it does yield new information, and even if it ultimately leads to a court invalidating the policy, I am not optimistic that it will have a dramatic effect on curbing unlawful, nepotistic, patronage-driven appointments to “key centres of authority”, as some opposition politicians and some commentators seem to believe.
To the extent that cadre deployment (in the broadest sense) has become a tool to facilitate ANC corruption at every level of society, it is likely to continue for as long as the ANC remains in government at the local, provincial and national level, even in the absence of a formal policy.
Part of the problem may be that “cadre deployment” means different things to different people and may therefore be far too vague a term to be useful in analysing the problem and finding solutions for it.
As I have written before, some forms of “cadre deployment” are probably perfectly legal and could be expected from even the most honest and efficient government. For example, it would be difficult to argue that it is unlawful for a political party to select their preferred candidates for president, premier, mayor or speaker. Similarly, it would be perfectly lawful for a party in government to support (and use their political power to try and secure) the appointment of qualified party loyalists to bodies that formulate or implement government policies.
On the other hand, it is clear that a deployment policy that seeks to appoint and promote all members of the public service purely based on their loyalty to the ANC (or one of the factions within the ANC) would be unconstitutional and invalid. This would be so, not least because section 197(3) of the Constitution states that no “employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause”.
This is qualified by section 195(4) of the Constitution which permits the “appointment in public administration of a number of persons on policy considerations” if this is done in accordance with national legislation.
The second problem, flowing from the first, is that it is impossible (and in some cases undesirable) to completely insulate appointments to the public administration and other state institutions from political influence.
For example, if the ANC decides to support the appointment of candidate X as a Commissioner to the South African Human Rights Commission, the ANC would be able to use its current majority in the National Assembly (NA) to secure the nomination of the ANC’s preferred candidate.
Unless the Constitution is amended to bestow the power to nominate members of Chapter 9 bodies on an independent body instead of on the NA, or unless the ANC loses its majority in the NA, there is pretty much nothing stopping the ANC from “deploying” X to the SAHRC, whether this is done in terms of a deployment policy or is based on an ad hoc decision of party leaders.
Similarly, where, for example, the power to nominate or appoint board members of a state-owned enterprise (SOE) is bestowed on the relevant minister, nothing would stop that minister from “deploying” ANC loyalists to that board. As long as the appointments are sound and the board does its job as required, this should not be a problem.
In fact, as the minister and the government he or she serves in are ultimately responsible and accountable for the performance of that SOE (something, the ANC often pretends is not the case), one could even argue that it is appropriate that the minister should have the final say on such appointments. (Different considerations apply to boards of supposedly independent or impartial bodies such as the SABC Board.)
Which brings me to the crux of the matter.
In my view, cadre deployment in the abstract is not the problem. The problem is that corruption and nepotism have become the central purpose of the ANC in government, and one of the pivotal mechanisms through which it secures its survival as a political party.
One result of this development is that many appointments, whether approved or mandated by the ANC deployment committee or not, are made to facilitate corruption. Senior civil servants loyal to some or other politician are appointed because of their loyalties to that politician or more broadly the ANC, often in the knowledge that they will serve on tender boards or exercise other powers that will open up possibilities for the corrupt extraction of resources from the state.
The problem becomes even more severe when the appointee lacks the basic skills and qualifications to do their job. (Politicians implicated in tender corruption often defend themselves by pointing out that they themselves did not serve on the tender committee, when they have that tender committee in their pocket.)
The need for politicians at every level of government to disburse patronage in order to buy loyalty and boost their standing and power in local or regional ANC structures has also led to the profound weakening of the state, with the appointment of unqualified or incompetent individuals to some positions in SOEs and the public administration, even to positions with little or no political influence. The abolition of the ANC’s cadre deployment policy will not change any of this.
Of course, some ANC politicians and some ANC-controlled administrations and bodies also sometimes appoint excellent, highly skilled and impeccably honest persons to positions at all levels of government. (The appointment of the current SA Revenue Service Commissioner appears to be such a case.) Such appointments are sometimes made with the blessing of the deployment committee or at least taking into account the individual’s pro-ANC sympathies.
I would argue that this underscores my point that the heart of the problem is neither the ANC’s formal “cadre deployment” policy nor the informal political influence of ANC politicians and ANC-aligned officials on some appointments.
It is the fact that it has become evident over the years, as made crystal clear by the various reports of the Zondo Commission, that the ANC in government cannot be trusted to make decisions that will enhance or ensure continued good governance.
It’s not the policy (or not only the policy) that is the problem, it is the party and the people elected to govern all of us that is the problem. As the ANC has demonstrated over the past five years that it is incapable or renewing itself (as illustrated by its failure to take decisive action against almost 100 of its members implicated in wrongdoing by the State Capture Commission), it is ultimately the voters (not the courts) who have real power to do something about the problem.
Whether voters will use this power is anyone’s guess.
