The unlawfulness of cadre deployment

Nikki de Havilland writes that a recent judgment has thrown a spoke in the wheel of the ANC policy

In the recent matter of Voyu Mlokoti v Amathole District Municipality and Mlamli Zenzile, unreported, Eastern Cape Division case no1428/2008, in respect of which leave to appeal has been refused, Pickering J has, in unequivocal terms, confirmed the illegality of the so-called practice of cadre deployment currently extensively practiced within the ANC. The court also brought clarity, albeit obiter, to the much debated question of the jurisdiction that a High Court has over questions of unfair labour practices.

The facts in this matter were that the applicant and 2nd respondent were short-listed out of 20 applicants for the post of Municipal Manager. Thereafter an assessment of their relative strengths and weaknesses was undertaken by an 11-member representative selection panel. Despite being found to be the weaker candidate, and despite two legal opinions cautioning first respondent not to appoint second respondent, second respondent was appointed.

This appointment was purely as a result of an instruction by the ANC's regional leadership to the ANC members of the District Council to appoint him. Aggrieved by the decision, applicant applied to the High Court to have the decision reviewed and set aside, and to substitute the decision with one appointing him.

In dealing with the question of jurisdiction, which first respondent challenged, the court rejected the statement by Erasmus J in Nomzamo Cleaning Service Cooperative v Appie and Others [2008] 9 BLLR 901(Ck) to the effect that the Constitutional Court had overruled in Chirwa  v Transnet Ltd and Others 2008 (4) SA 367 (CC) its earlier finding in Fredericks v MEC for Education and Training 2002 (2) SA 680 (CC) that the labour court did not have exclusive jurisdiction in all matters arising from an employment relationship.

Aligning itself with the views expressed by Froneman in Nakin v MEC, Department of Education, Eastern Cape Province unreported Eastern Cape Division case no 77/2007 and those of Revelas J in Mkumatela  v Nelson Mandela Metropolitan Municipality unreported South Eastern Cape Local Division case number 2314/2006 the learned judge confirmed that in the Chirwa judgment the court had simply established the principle that  an aggrieved person possessed of a remedy under the Labour Relations Act (LRA), was obliged to pursue that remedy in the Labour Court and not in the High Court, notwithstanding reference in the LRA to the latter court's concurrent jurisdiction. However where the cause of action was formulated without reference to the LRA an applicant had a choice as to which court to approach.

In considering the merits of the case, the court noted that the first respondent was governed by its "Recruitment Policy" in its appointment of a municipal manager. This policy required, inter alia, that fair recruitment and selection procedures had to be followed; that candidates had to be selected objectively and on merit; and that individuals had to be recruited to positions on the basis of qualifications and suitability. It was also governed by the provisions of the Local Government: Municipal systems Act and section 195 of the Constitution.

This section provides that public administration at all levels of government be governed by the democratic values and principles that efficient, economic and effective use of resources must be provided and that good human resource management and career development practices, to maximize human potential, must be cultivated. In commenting on the involvement of the Regional Executive Council of the ANC, the court had the following to say:

"[It] 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 qualifications, suitability and with due regard to the provisions of the pertinent employment legislation as set out in paragraph 1 of the recruitment policy. This was a responsibility owed to the electorate as a whole and not just to the sectarian interests of their political masters. ... The first respondent has demonstrated a lamentable abdication of its responsibilities by succumbing to a political directive from an external body, regardless of the merits of the matter."

 The Court accordingly set aside the appointment and substituted the decision with an order appointing applicant as the Municipal Manager.

This finding has particular relevance to the recent revelations by City Press that it was in possession of uncontrovertible evidence that in at least three of our provinces, decisions regarding the appointment of senior civil servants are being taken at ANC party offices; that top public service posts are kept for party workers; and that party leaders dictate on matters of procurement. ("ANC abuses power" Caiphus Kgosana & Moffat Mofokeng, City Press 25 October, 2008) It is particularly relevant to the ANC response to the report, in terms of which it claimed that it is an internationally accepted norm for any ruling party to deploy its cadres into Government as president, premiers, ministers, MEC's and into any other strategic position. [emphasis added]

Although it is accepted practice for the Executive to approve senior appointments within the civil service, the actual recruitment and appointment within the civil service must  nonetheless  be on a non-party political basis in accordance with the provisions of sections 195 and 197(3) & (4) of the Constitution.  As pointed out in the case under discussion, section 195 spells out in detail and with great clarity the basic values and principles governing public administration.

It requires in essence that employment and personnel management practices in the public administration must be based on "ability, objectivity [and] fairness." 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 197(4) prescribes that provincial governments (and not local political formations) "are responsible for the recruitment, appointment, promotion, transfer and dismissal of members of the public service in their administrations within a framework of uniform norms and standards applying to the public service."

Political interference in the recruitment process of civil servants by party offices is thus in direct contravention of the provisions of sections 195 and 197(3) & (4) and can never be sanctioned. Clearly any political party is at liberty to deploy its cadres into political post from municipal councillors to the president, but it is not constitutionally permissible for it to deploy its cadres into public service posts. It is thus hoped that this distinction will be realized and that the caution of Pickering J that in defending cadre deployment into public service posts Government "... continues, with an equally lamentable lack of insight into its conduct, to contend that it was proper for it to have done so."

Nikki de Havilland is deputy-director of the Centre for Constitutional Rights. This article first appeared in the Centre's quarterly publication ConsWatch.