THE CFCR PURSUES FORMAL COMPLAINTS WITH THE PUBLIC PROTECTOR AND THE PUBLIC SERVICE COMMISSION OVER THE PRACTICE OF CADRE DEPLOYMENT

In early November last year, the Centre for Constitutional Rights formally requested both the Public Protector (PP) and the Chairman of the Public Service Commission to "investigate, report on and take remedial action" against the ANC's unlawful and unconstitutional practice of so called cadre deployment in the public service.  The PP has indicated that he is investigating the complaint but refuses to give the CFCR a ‘time-line' on the progress that it is making.

The practice of so-called cadre deployment is at variance with the constitutional requirement for a clear separation between the ruling political party and the institutions of the state.  The practice of cadre deployment is breaking down the proper constitutional distinction between party and state and, as such, violates the requirements of sections 195 and 197(3) & (4) of the Constitution, as well as the provisions of the Public Service Act, 1994.

Section 195 spells out in detail the basic values and principles governing public administration. In particular, employment and personnel management practices must be based on "ability, objectivity [and] fairness" and "services must be provided impartially, fairly, equitably and without bias."  This requires the employment of persons who are suitably qualified rather than the deployment of faithful cadres of the majority political party.

Section 197(3) is even clearer. It states that "No employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause." Section 11(2) of the Public Service Act, 1994 requires that all persons who apply for employment in the public service, and who qualify, shall be evaluated purely on the basis of training, skills, competence, knowledge and the need to redress the imbalances of the past to achieve a broadly represented public service.

The  practice of cadre deployment  finds its genesis in the ANC's Strategy & Tactics (S&T) documents that call for the ANC

"to strengthen the hold of the democratic movement over state power, and to transform the state machinery to serve the cause of social transformation: The levers of state power include the legislatures, the executives, the public service (emphasis added), the security forces, the judiciary, parastatals, the public broadcaster, and so on."

The S&T documents also require that ANC members should owe their primary allegiance to the ANC, wherever they may be deployed.

The CFCR's complaint is based on two clear examples of cadre deployment.  The first example related to cadre deployment at both provincial and local level in the Limpopo Province, as identified by the City Press of Sunday 26 October 2009 (Caiphus Kgosana & Moffat Mofokeng  "ANC abuses power").

The authors of the article claimed to be in possession of copies of correspondence between the ANC's provincial secretary in Limpopo and the Limpopo Premier regarding the transfer of the head of safety and security to head of public works. In the correspondence the provincial secretary had stated:

 "It is noteworthy that the deployment committee of the ANC had deployed Mr Thobakgale to the post of head of safety and security. The organisation has observed that the aforementioned has since been transferred as head of public works without the ratification of such a decision by the ANC. This constitutes sidestepping or undermining of organisational deployment processes. The organisation has arrived at a decision that the premier must reverse the transfer of Mr Thobakgale to safety and security with immediate effect."

The second example of cadre deployment was addressed in a recent Grahamstown High Court judgment in the matter of Vuyo Mlokoti v Amathole District Municipality (case No 1428/2008, 6 November 2008).  In that matter, the Amathole District Municipality had appointed its new municipal manager purely as a result of an instruction that the ANC members on the District Council had received from the ANC's regional leadership.  They took their decision, despite the fact that the ANC candidate was found to be a weaker candidate by an 11-member representative selection panel. In setting aside the decision to appoint the ANC deployee, the learned judge had the following to say:

 "... the involvement of the Regional Executive Council of the ANC... constituted an unauthorised and unwarranted intervention in the affairs of first respondent's council. It is clear that the councillors of the ANC supinely abdicated to their political party their responsibility to fill the position of the Municipal Manager with the best qualified and best suited candidate on the basis of the qualifications, suitability and with due regard to the provisions of the pertinent employment legislation... This was a responsibility owed to the electorate as a whole and not just to the sectarian interests of their political masters."

The CFCR subsequently included in its complaint to the Public Protector and the PSC additional evidence of cadre deployment which came to light in a report of the Mail & Guardian of February 20 - 26 2009 (Mandy Rossouw "The insiders' payroll"). The report revealed that the National Treasury's "Local Government Budgets and Expenditure Review, 2003 - 2009" reflected that 28% on average of municipal employees were political deployments in non-existent positions. In certain local governments such as Mpumalanga, the report reflected that the percentage was even higher than 60%.

The Centre has respectfully requested the PP to:

• urgently draw the  ANC's attention to the illegality and unconstitutionality of cadre deployment; to the legal and   constitutional principles and values which ought to inform the proper appointment of staff in the public administration; and  to the judgment in Vuyo Mlokoti v Amathole District Municipality;

• immediately take steps to reverse any appointments made purely as a result of political deployment;

• review all contracts found to be cancelled or granted solely on the basis of political affiliation; and to

• immediately instruct all responsible persons and authorities to ensure that henceforth appointments, promotions, transfers and dismissals should be made solely on the basis of the requirements set out in sections 195 and 197 of the Constitution and the Public Service Act.

In its complaint the Centre asked that the matter be treated as one of urgency, given the pending elections and the likelihood that after the election senior civil servants could be vulnerable to this practice, if they were no longer members of the ruling party. The Centre believed it to be of particular importance that at a time of transition from one government to another, that the public administration should remain professional and apolitical. Despite numerous and regular follow-up requests, to date no progress reports have been forthcoming and the Commission refuses to commit itself to any timeline. Given that we are about to commence with that transition, it is sincerely hoped that some urgency will be given to the CFCR's complaint.

Adv N de Havilland
Director
Centre for Constitutional Rights

Issued by the Centre for Constitutional Rights, April 29 2009

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