A mere week after the ANC argued before the Pretoria High Court that its cadre deployment policy was an exercise in ‘free speech’, the party was ordered to hand over records of its national cadre deployment committee’s decision-making process to the Democratic Alliance (DA).

On 2 February, the Johannesburg High Court granted access to these records in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA). This comes after DA MP Leon Schreiber launched an application alongside his party, arguing – inter alia – that as a member of parliament, he “has a duty of oversight over appointments to organs of state and the performance of organs of state” that necessitates access to these concealed records.

Judge Wepener held: “In my view, it is indeed so that the parliamentary oversight is best served with full knowledge of all the factors that go into the decisions to appoint individuals.”

Considering evidence before the Zondo Commission in which President Ramaphosa stated that “it is inappropriate for activities of the Deployment Committee to be done in dark corners” and in which he “accepted that it should instead be done openly and transparently,” the court found that Schreiber’s “right and duty of oversight in parliamentary processes, which include the appointment of individuals to serve in organs of state”, requires access to these records.

This also follows the successful application by Sakeliga under PAIA before the Pretoria High Court, whereby Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma was ordered to disclose the records of government’s decision-making process under the Covid-19 state of disaster.

Finally, the DA will be able to scrutinise the truth behind government’s decision-making processes and assess the actual significance that the ANC’s Deployment Committee “recommendations” have on the appointment of staff to state-owned enterprises (SOEs) and government departments. This will provide insight into the degree to which the appointment of staff on the basis of political affiliation and demography may have contributed to the very poor performance of Eskom, PRASA and other SOEs – as well as to critical service delivery failures at all levels of government.

Speaking at the FW de Klerk Foundation annual conference on 2 February – which focused on “Defending the Constitution” and commemorated the 33rd anniversary of President De Klerk’s speech that launched the constitutional transformation process – Adv Paul Hoffman (SC), founding director of Accountability Now stated:

“In terms of the values and principles that inform the public administration and organisation of SOEs, good human resource practices that lead to efficiency and effectiveness and to a high standard of professional ethics in public administration, is what is required by the Constitution and that is inconsistent with the current deployment of cadres.”

However, writing in his latest Constitutionally Speaking blog, Professor Pierre de Vos cautions: “the problems now widely associated with cadre deployment (endemic corruption, the collapse of service delivery, and the broader collapse of the state) cannot be fixed merely by invalidating the ANC’s cadre deployment policy….even in the absence of a deployment committee, the party will continue to be able to exert an outsized influence on the appointment of individuals to the public administration and other public institutions, at least for as long as it retains its electoral dominance.”

By the end of this week, the ANC must hand over all documents relating to cadre deployment dating back to 1 January 2013 – when President Ramaphosa became the Chairman of the Deployment Committee. The judgement upholds the public’s right to access of information held by the State or by anyone else “that is required for the exercise or protection of any rights.” Access to information is a very important factor in the maintenance of a “multiparty system of democratic government, to ensure accountability, responsiveness and openness” as required by sections 1 and 32 of the Constitution.

As expressed by Schreiber, the “ruling is a historic victory by the DA for transparency and the rule of law in South Africa… and makes it clear that politicians who corruptly interfere in affairs of state cannot hide behind a veil of secrecy.”