DA pursues legal challenge against ANC cadre deployment while embroiled in Cabanac scandal

5 Sep 2024

The DA is pressing ahead with litigation to have the ANC’s policy of cadre deployment declared unlawful and unconstitutional, while being embroiled in a scandal about its own appointments in government.

The existence of a Government of National Unity (GNU) is not going to deter the DA from pursuing its legal challenge to have the ANC’s practice of cadre deployment declared unlawful and unconstitutional, the party has said.

Appearing before the Cape Town Press Club earlier this week, Home Affairs Minister Leon Schreiber was asked about the status of the DA’s litigation against cadre deployment now that the party formed part of the GNU. Without going into detail, he confirmed the litigation was continuing.

“You [the ANC] didn’t stop breaking the law because there was an election,” he said.

Schreiber spearheaded the party’s campaign against cadre deployment – a practice that sees the ANC convene a committee to discuss filling vacancies in the public service, ideally with loyal ANC members.

Read more: Cadre deployment — a powerful and lasting bone of rolling political contention

The DA applied to the Gauteng Division of the High Court in Pretoria in June 2022 to have the ANC’s cadre deployment policy declared unlawful and unconstitutional. In February 2024, the court dismissed the DA’s application, saying the case was “built on speculation and conjecture”.

In his 40-page judgment, Deputy Judge President of the Gauteng Division of the High Court, Aubrey Phago Ledwaba, concluded that “the ANC, like any other political party, is entitled to influence government decisions, including the appointment of senior staff to public administration, as long as the bright line between state and party is observed”.

The DA has since filed an application seeking leave to appeal this ruling. DA national spokesperson Willie Aucamp told Daily Maverick the party has written to the court asking for a date on which the application for leave to appeal can be heard.

“We have not yet received any directions in that regard,” he said.

“The existence of the GNU does not imply that the DA stops defending the Constitution. Quite the opposite. We aver that cadre deployment is unconstitutional and we will continue to pursue this matter till the courts have finally ruled,” Aucamp told Daily Maverick.

The DA also wants the court to compel the ANC to make public all records relating to the party’s cadre deployment committee.

The DA scored a victory in the Constitutional Court in February 2024, when the court refused to grant the ANC further legal appeals in its bid to keep its cadre deployment records out of the public’s hands.

The ANC complied with a court order to turn over to the DA its cadre deployment records dating back to 2013. However, the records were incomplete and heavily redacted, and the only minutes supplied from the cadre deployment committee meetings were those that Schreiber had already succeeded in having made public in 2022 – covering the period from May 2018 to November 2020. (You can read Rebecca Davis’ reporting on them here and here.)

Read more: The constitutionality of cadre deployment is a symptom of a bigger problem

The DA subsequently filed a contempt of court application in the Gauteng Division of the High Court in Johannesburg in March 2024. The ANC was later found to be in contempt of court but has sought leave to appeal the ruling.

In response to a request for comment, ANC acting national spokesperson Zuko Godlimpi said, “We insist that the DA is engaged in a red herring. There is no such ANC policy. What we have is a cadre deployment policy, which is about political capacity building and technical training of ANC members.”

Godlimpi said the ANC “firmly believes that the DA’s litigation is frivolous and unwarranted”.

“At a time when we should be united in focusing on the crucial work of government, addressing the needs and concerns of our citizens, we find these legal actions to be unnecessary distractions,” he added.

Speaking to Daily Maverick, UCT associate professor in public policy and administration Vinothan Naidoo said having cadre deployment declared unconstitutional would not resolve the bigger issue of how to strengthen recruitment and appointment practices in the public sector.

“Deployment has become so institutionalised in the ANC that it’s a formal practice; there are several committees, different layers in the provinces, minuted meetings. So if it was declared unconstitutional, I think the party’s ability to recommend or require its people to be appointed in government departments … that process will still happen but just underground,” said Naidoo.

“The cadre deployment debate is a red herring, in a sense, because it’s not solving the problem that we need to solve, which is how do we ensure legal and constitutional clarity around who is a political appointee and who isn’t?

“We know that this happens; we know that this happens not just in the ANC… I would be surprised if the DA, or any other party, didn’t place partisan individuals into offices where they govern. It would be in their interest to do it – they just wouldn’t call it deployment.”

Vexxed policy

Putting an end to cadre deployment was a key element of the DA’s offering to voters in the 2024 general election. In its manifesto, the party said the policy of cadre deployment “is the root cause of our public service’s reduced capacity, as appointments to key public service roles are based on political affiliation … rather than merit and competency”.

The DA said it would “abolish cadre deployment in favour of merit-based appointments” to ensure “the public service is staffed with competent and professional individuals rather than those with political connections”.

The confirmation from the DA this week that it will continue to pursue its litigation against the ANC’s cadre deployment policy comes as DA leader and agricultural minister in the GNU John Steenhuisen is embroiled in a scandal about appointments within his department.

Read more: By rewarding Roman Cabanac’s bigotry, Steenhuisen risks the future of the GNU

Last month, Steenhuisen appointed controversial alt-right podcaster Roman Cabanac as the chief of staff in his department, News24 reported. The move has caused consternation within the DA and concern among some longstanding DA supporters, Daily Maverick reported.

Among the founding principles of the GNU statement of intent is that all parties commit to a “professional, merit-based, non-partisan, developmental public service that puts people first”.

Steenhuisen has defended Cabanac’s appointment on the grounds of his legal experience, although it is unclear if he has completed his law articles.

Irrespective of Cabanac’s racist bigotry, as Rebecca Davis wrote, “It is simply ludicrous to suggest that Roman Cabanac – a podcaster who seems to draw up wills on the side – is the most qualified candidate to serve as chief of staff to the Minister of Agriculture.”

Following Cabanac’s appointment, News24 reported that Steenhuisen had applied for an exemption to government regulations, to appoint a group of unqualified DA colleagues into government.

The DA has distanced itself from Cabanac’s appointment, describing it as a case study to show the party does not practice cadre deployment. However, ANC Youth League president Collen Malatji has said the appointment shows that cadre deployment does not take place only in the ANC.

Schreiber did not respond to questions from Daily Maverick about whether he considers Cabanac’s appointment to be cadre deployment. The ANC’s Godlimpi also did not respond to a request for comment on the appointment.

Transparency and accountability

Naidoo said Steenhuisen’s appointment of Cabanac “seems deeply unwise in the sense that it speaks to the ‘character’ of the individual being appointed and, by extension, of that of the minister himself”.

“Even though appointments to ministerial offices have largely been treated separately from the wider debate about professionalising and promoting a meritocratic public service, given the temporary nature of these appointments and the ministerial prerogative to make them, this particular case really does thrust these discretionary appointments into the broader professionalisation debate,” said Naidoo.

“I’m certain that ANC ministers have also made dubious discretionary appointments to their ministerial offices in the past, so Steenhuisen shouldn’t necessarily be singled out, but there is a bigger issue here about establishing at least a basic ethical and technical criteria for appointments to ministerial offices,” he added.

The hiring of the chief of staff is at the discretion of the relevant minister and the position is in the third-highest salary band in government, currently paying almost R1.4-million annually.

Naidoo added that Cabanac’s appointment is an issue that Parliament should interrogate further.

ActionSA said in a statement this week it would initiate a series of parliamentary questions directed at ministers and deputy ministers, asking for details on their support staff appointments.

“This follows recent revelations exposing apparent disregard for minimum qualification criteria and what appears to be nothing more than cadre deployment, particularly highlighted by the latest controversy within the agricultural ministry,” it said. DM

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Vexxed policy

Transparency and accountability