Africa-Press – South-Africa. The ANC’s application to appeal a High Court ruling that it must hand over its cadre deployment records is a continuation of its abuse of court processes to “delay what it knows is inevitable – that it must disclose the requested information”, DA MP Leon Schreiber argues in his court papers.
“From the outset, when I made the initial PAIA [Promotion of Access to Information Act] request, and throughout the litigation process, the ANC has raised no recognised grounds to resist the disclosure of the requested information under PAIA,” Schreiber stated in his responding affidavit to ANC secretary-general Fikile Mbalula’s application to the Supreme Court of Appeal.
“It has abused the court process and repeatedly failed to comply with court orders during the litigation. Its conduct was calculated to frustrate and delay disclosure of the information.”
The application for leave to appeal directly to the SCA was filed in June, on the day that the ANC had to hand over its cadre deployment records after the Gauteng High Court in Johannesburg refused it leave to appeal its ruling that it must hand over its cadre deployment records to the DA.
The records in question would include meeting minutes, WhatsApp conversations, email threads, CVs, and all other records of the ANC deployment committee since 1 January 2013 when Ramaphosa became its chairperson.
Schreiber launched his PAIA application for the records in 2021.
The ANC refused.
Schreiber then went to court.
Judge Willem Wepener found the ANC’s decision not to grant the PAIA request unlawful and invalid, and set it aside. He also ordered the party to pay the DA’s costs.
For his application to succeed, Schreiber had to convince the court he needed the information to protect certain rights.
He advanced three such rights.
The first is that the DA wishes to enact legislation about cadre deployment and it, therefore, needs the information to understand what cadre deployment entails and what its impact could be.
Second, as an MP, Schreiber has an oversight duty over appointments in state organs.
And third, that people not appointed in the public service could use the information to challenge unlawful and irregular appointments.
Wepener was not convinced by the third ground, but agreed with Schreiber on the first two.
Wepener’s judgment read:
Wepener also rejected the ANC’s application for leave to appeal with costs, saying the ANC had no chance of succeeding in its appeal and had no reason to challenge the decision in other courts, and Mbalula approached the SCA.
‘High Court has fundamentally misdirected itself’
In his founding affidavit for leave to appeal to the SCA, Mbalula argued that Wepener erred not only in granting the initial order, but also in refusing the ANC leave to appeal.
According to Mbalula, the court “incorrectly found” that the ANC was legally obliged to hand over the documents to Schreiber for the “exercise of his parliamentary oversight role or for the exercise of his unspecified rights, which have not been properly spelled out”.
“The applicant’s [ANC] constitutional rights to privacy, equality, and dignity have been infringed by the High Court’s court order and judgment,” stated Mbalula.
“The High Court has fundamentally misdirected itself, and for this reason, this court should grant leave to appeal to the SCA.”
Mbalula argued that another reason why leave to appeal should be granted was because the matter raised “profound constitutional issues and significant importance” and was a matter of public concern.
He claimed that the deployment committee’s records had “nothing to do” with Schreiber’s oversight role as an MP.
“People are free to think whatever they think of the applicant [ANC] electing not to disclose the information it is not obliged to disclose. Access to information about the processes and procedures of the deployment committee does not generally protect the right and freedom of belief and opinion about the applicant,” Mbalula stated.
He argued that the freedom to receive or impart information or ideas did not include a right to a private individual’s information that they did not want to disclose.
Mbalula said:
The ANC secretary-general went further, stating that Schreiber and the DA were not members of the ANC and were, therefore, not entitled to information generated from internal ANC committees.
“They do not have a duty of oversight over the applicant and the workings of the applicant’s internal committees.”
In is responding affidavit, Schreiber states that the High Court correctly found that he needs the information as a member of Parliament to draft legislation “to combat cadre deployment”.
‘Information will assist me’
“This is because, due to the secretive nature within which cadre deployment is practised and institutionalised in the ANC, I only have a partial view of the problem which the DA and I seek to remedy by enacting legislation. The information will assist me to understand the intricacies of how the phenomenon manifested and is practised so that I can tailor the Bill which I have tabled accordingly,” stated Schreiber.
Furthermore, the High Court found he needed the information to conduct his oversight work.
“The records of the Deployment Committee will assist me to review key appointments and transactions in public bodies and entities that require further investigation by Parliament and the Portfolio Committee [of Public Service and Administration, of which Schreiber is a member].
“The information will assist me in understanding which positions have been targeted in the past, how the process of cadre deployment worked, what the incentives and motivations were, and who the beneficiaries were in particular instances. This will enable me to focus and prioritise accountability efforts,” Schreiber stated.
He added that it could not be disputed that it is necessary and appropriate for Parliament to exercise oversight “over appointments in the state where such influence is being exerted outside the legal process in terms of which appointments are to be made”.
“The ANC’s allegations that appointments in the public sector are insulated from unlawful influence begs the question that the requested information will answer, and in any event is contradicted by the undisputed and common cause fact,” stated Schreiber.
In a separate case, the DA has asked the court to declare the cadre deployment policy unconstitutional. Arguments in this matter have been heard in January, but judgment has yet to be delivered.
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