By Lehlohonolo Lehana.
The Democratic Alliance’s (DA) is set to apply for leave to appeal against a decision by the full bench of the Pretoria high court, which dismissed with costs its application to have the ANC’s cadre deployment policy declared unlawful.
Judge Aubrey Ledwaba delivered the brief judgment on Wednesday morning and dismissed the application with costs.
The judgement, which DA leader John Steenhuisen described as disappointing, follows the DA’s victory in the Constitutional Court last week when it ruled the governing party must hand over its cadre deployment records to the official opposition party.
This comes after the ANC handed the minutes of its meetings to the DA on Monday.
“Our legal team is busy as we speak, digesting the judgment. But we will appeal it to the SCA [supreme court of appeal] and potentially directly to the constitutional court. We believe there can be no greater constitutional imperative than to deal with this particular matter and its effect on South Africa.”
Steenhuisen said if cadre deployment was supported in its current form, it would continue to undermine the state and cause great harm to South Africans and their prospects for the future.
He said that the “silver bullet” to end cadre deployment was the national elections, which President Cyril Ramaphosa said on Tuesday night would take place on 29 May.
Steenhuisen said the DA had made a commitment to end cadre deployment by tabling a bill in parliament should it emerge victorious in the elections.
“We may not have made over this first hurdle but I can assure you, like elite athletes, we will get up and we will get back onto that track off to the SCA, off to the constitutional court and I committed to all South Africans that we will never, ever, ever stop fighting until this scourge of cadre deployment ends,” he said.
Meanwhile the ANC has repeatedly used its cadre deployment committee to attack the independence of the Judicial Service Commission (JSC), the judiciary, and even the Constitutional Court.
This is the first revelation from the ANC’s cadre deployment records.
The cadre deployment committee was so unhappy that its preferred candidate judge for a position on the Constitutional Court was snubbed after being shortlisted by the judicial service committee (JSC) that it sent an e-mail to justice minister Ronald Lamola asking him to “immediately address this”.
In the e-mail from the late former ANC deputy secretary-general Jessie Duarte, the convener of the cadre deployment committee, she tells justice minister Ronald Lamola that the process to snub Ramola Naidoo, the ANC’s preferred candidate, was inconsistent with the law and showed lack of transparency as there was no explanation provided to her.
This, she said, was because though Naidoo had less judicial experience, she was highly qualified and that the section 174(5) broadens the scope “to include candidates with no judicial experience”.
Duarte’s e-mail is in stark contrast to the remarks by President Cyril Ramaphosa at the state capture commission that the deployment committee does not appoint judges.
“The deployment committee knows that, at best, all it can ever do is note that, one, there is a vacancy; two, that there are certain names that could be proposed and, having done that, it also knows very well it is not the appointing structure,” Ramaphosa told the state capture commission.
And by definition, by the way our constitution works, it could never ever have a judge appointed because that is a process that is done through the JSC and what comes out of the JSC is the will of those people who sit on the JSC.”
Duarte’s e-mail read: “It has been brought to our attention that Adv Ramola Naidoo, a highly qualified female applicant for the Constitutional Court who was shortlisted according to attached document for the position by the JSC … was subsequently removed despite being more qualified and experienced than most if not all the other listed candidates.
“She was the one removed from the list. The list was published on February 13 2020 and no communication has been made with Adv Naidoo. The process is inconsistent with section 174(5) which broadens the scope to include candidates with judicial experience.”
It is unclear how Duarte would have been aware that no explanation was given to Naidoo at that stage.
The DA has alleged this is proof the ANC was in constant communication with Naidoo and that she was the deployment committee’s preferred candidate.
The documents are records of appointments made during the State Capture era between 1 January 2013 and 1 January 2021.
Potentially most explosively, this is the period during which president Cyril Ramaphosa – then acting as deputy president – chaired the committee.