1 Adv Mabedla Lawrence Mushwana Public Protector of the ...

Adv Mabedla Lawrence Mushwana
Public Protector of the Republic of South Africa.
Private Bag X677
Pretoria 0001
Per Facsimile: (012) 222 5093
Dear Sir
Re: Alleged unlawful and unconstitutional cadre deployment in the Public Service
1. In terms of section 182 of the Constitution, 1996
“The Public Protector has the power, as regulated by national legislation
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14 November 2008
(a) to investigate any conduct in state affairs, or in the public administration of any
sphere of government, that is alleged or suspected to be improper or to result in any
impropriety or prejudice;
(b) to report on that conduct; and
(c) to take appropriate remedial action.
2. Within the scope of the abovementioned powers and the powers granted to you in terms
of section 6 of the Public Protector Act, 1994 the Centre for Constitutional Rights respectfully
requests that you investigate, report on, and take remedial action against the unlawful and
unconstitutional practice of so called "cadre deployment" on the part of the ruling African
National Congress in the public service as reported on in the City Press of Sunday 26 October
(Caiphus Kgosana & Moffat Mofokeng “ANC abuses power”), a copy of which is annexed
hereto marked Annexure A.
3. At the heart of the complaint is the allegation that at least three of our provinces are being
run from ANC party offices; that top public service posts are kept for party workers; and that
party leaders dictate on matters of procurement. The authors of the article claim to be in
possession of a copy of a letter dated 22 August 2008 from the ANC’s provincial secretary in the
Limpopo Province, Mr Joe Maswanganyi to Limpopo Premier Sello Moloto. In the letter Mr
Maswanganyi states that:
“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.”
In his response the Premier wrote:
“Our knowledge and recollection of the ANC policy on deployment at the time, unless it
changed afterwards, was that the extension of contracts and internal transfers of
appointees are purely administrative matters that did not need to be brought to the
attention of the deployment committee of the ANC.”
4. The African National Congress has confirmed that such deployments are, indeed, part of
its policy. According to the City Press article Mr Maswanganyi said that his letter did not
constitute political interference:
“Electoral power is about controlling the state. If a party wins elections, it must run the
government. I don’t understand people who want us to take off our hands from the
government when the ANC is the key strategic centre,” said Maswanganyi. He added that
it “was not a secret” that the ANC had “influence on the appointment of senior managers
upwards”.
This view was reinforced by the ANC’s statement of 26 October 2008 in reaction to the City
Press article:
“As far as deployments are concerned, it is an internationally accepted norm for any
ruling party to deploy its cadres into Government as president, premiers, ministers,
MECs and into any other strategic position (emphasis added). South Africa is no
exception”.
This view also accords with the ANC’s Strategy & Tactics 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.
“In all centres of power, particularly in parliament and the executive, ANC representatives
must fulfil the mandate of the organisation. They should account to the ANC and seek its
broad guidance. As a matter of political principle, and in our structures and our style of
operation, we proceed always from the premise that there is one ANC, irrespective of the
many and varied sectors in which cadres are deployed.”
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5. Further evidence of this unlawful practice is to be found in the unreported judgment of
Vuyo Mlokoti v Amathole District Municipality (case No 1428/2008, 6 November 2008), a
copy of which is annexed marked Annexure B. In this matter, as appears from a letter written
by the Executive Mayor to the ANC Regional chairperson, the Amathole District Municipality
had appointed Mr Mlamli Zenzile (second respondent) as the Municipal Manager purely as a
result of an instruction by the ANC’s regional leadership to the ANC members of the District
Council to appoint him, despite him being found to be a weaker candidate by an 11-member
representative selection panel. In this letter the Mayor states:
“In view of the early indications that the matter might become controversial, the
Municipality proceeded to obtain a legal opinion from a firm of attorneys and a further
opinion from a senior Advocate. Both opinions advise the Municipality that, in the
absence of any objectively justifiable basis for rejecting a candidate who has fared the best
in the selection process, the Municipality is obliged to appoint such candidate and that the
Municipality would otherwise leave itself open to attack in an application before the High
Court.
The above matter was discussed within the ANC caucus in ADM in presence of the
Regional secretary and the legal opinions were disclosed. After considerable debate the
caucus decided to withhold the opinions from council although they were primarily
obtained to advise the council. The REC’s instruction, to appoint Adv Zenzile was then
accepted by caucus. … (emphasis added)
I am further of the view that the ANC erred by not resolving to appoint Dr Mlokoti as he
was clearly the most suitable candidate as the purpose of the recruitment process was to
find to [sic] most suitable candidate.”
In setting aside the decision to appoint the second respondent, 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 learned judge thus concluded that
“[t]hat abdication of their discretionary powers must result in their decision to appoint
second respondent being declared unlawful and being set aside.”
6. Whilst any political party is at liberty to deploy its cadres into political posts - from
municipal councillors to the president, it is not constitutionally permissible for them to deploy
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their cadres into public service posts. Such conduct offends against the values of the Constitution
and violates the requirements of sections 195 and 197(3) and (4).
7. Section 195 spells out in detail and with great clarity the basic values and principles
governing public administration. In particular, employment and personnel management
practices must be based on "ability, objectivity [and] fairness." Deployment by political parties is
not even contemplated, let alone sanctioned. Instead, "services must be provided impartially,
fairly, equitably and without bias." This is the opposite of political interference in recruitment
processes and requires the employment of persons who are suitably qualified rather than the
deployment of faithful cadres of (the dominant faction of) the majority political party.
8. 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.”
9. Section 11(2) of the Public Service Act, 1994 sets the parameters within which public
servants ought to be employed by the state, not "deployed" by anyone else. It 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 public service broadly representative of the South African
people. Employment practices based on the patronage inherent in so-called cadre deployment
are patently inconsistent with the requirements of ability, objectivity and fairness called for in
the Public Service Act.
10. In addition to the parameters set by the Public Service Act, section 33 of the Constitution
requires that all applicants are entitled to just administration. Cadre deployment is inherently
biased as it effectively means that non-cadres need not apply and an applicant has to be a cadre
to be deployed.
11. The ambit of your constitutional brief is not to investigate general complaints, but rather to
investigate specific issues of improprieties and prejudice. Hitherto there has never been direct
and uncontrovertibly evidence of specific incidences as unearthed by City Press and in the
Amathole District Municipality case referred to earlier. We thus respectfully ask that the specific
incidents of cadre deployment at both provincial and local level identified by the city Press be
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investigated by your office, and if found to be true, be rooted out by your taking appropriate
remedial action. The action that we would urge would be that
• you urgently draw the ANC’s attention to the illegality and unconstitutionality of
the system of cadre deployment into the public service;
• you draw their attention to the principles and values which ought to inform the
proper appointment of staff in the public administration as prescribed by both the
Constitution and the Public Service Act;
• you draw their attention to the judgment in Vuyo Mlokoti v Amathole District
Municipality;
• you immediately take steps to reverse any appointments made purely as a result of
political deployment;
• you review all contracts found to be cancelled on the basis of political affiliation;
and that
• all responsible persons and authorities be immediately instructed to ensure that
henceforth appointments, promotions, transfers and dismissals are made solely on
the basis of the requirements set out in sections 195 and 197 of the Constitution and
the Public Service Act.
11. To assist you in your investigations we would respectfully suggest that you refer to the
documents set out in Annexure C hereto. We would also suggest that you consult the witnesses
set out on Annexure D hereto. Should you require any further assistance from us, please do not
hesitate to contact us.
12. Given the recent realignment within the ANC and the consequential potential increase in
the practice of deployment, we would ask that the matter be treated as one of urgency. Kindly
also acknowledge receipt of this request and we look forward to being informed of the outcome
of your investigation as soon as possible.
13. A copy of this communication is being sent to Prof SS Sangweni, Chairman of the Public
Service Commission, for his information and such action as he deems appropriate in the
circumstances which emerge from a perusal and investigation of the matters adumbrated upon
in Annexure A.
Yours faithfully,
Adv Nichola de Havilland
Deputy Director
cc Prof SS Sangweni
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