Africa-Press – South-Africa. While President Cyril Ramaphosa, in his implementation plan on the Zondo Commission’s recommendations, admits the “strategic positioning” of individuals in the state in contravention of the Constitution and legislation was a “key mechanism” in state capture, he doesn’t address the black, green and gold elephant in the room, namely cadre deployment.
In a scathing section in his final state capture report, Chief Justice Raymond Zondo said cadre deployment is unconstitutional and unlawful and, by Ramaphosa’s own admission, could be abused to facilitate corruption and state capture.
He dismissed Ramaphosa and ANC chairperson Gwede Mantashe’s justification of the policy when they testified before the commission.
Examining the legal framework, he noted the Constitution demanded a non-partisan public service.
“Appointments in the public service are governed by a number of laws and policies, most significantly the Public Service Act, which seeks to ensure that appointment processes are fair, effective and in line with the Constitution. If appointment decisions are not made within this governance regime, but rather made behind the closed doors of the party, these checks and balances are circumvented,” read the report.
Zondo said if a party could decide appointments, it could abuse this power “to achieve ends which are not in the best interests of the country”.
“The evidence has demonstrated that state capture has been facilitated by the appointment of pliant individuals to powerful positions in state entities. The essential danger remains that appointment processes which are conducted behind closed doors and outside the constitutionally and legally stipulated processes are open to abuse.”
He emphasised Section 197(3) of the Constitution “precludes the favouring and prejudicing of any employee for supporting a particular political party or cause”.
Zondo said the Public Service Act (PSA) stated no appointment might be made, affected or decided upon in a way the act did not prescribe.
Ramaphosa tabled his implementation plan on the commission’s recommendations with Parliament on Saturday and addressed the public on the plan on Sunday evening.
In his implementation plan’s section dealing with the public service, Ramamphosa, who chaired the ANC’s deployment committee from 2012 to 2017, when state capture reached its zenith, doesn’t mention the role of the governing party at all.
“A key mechanism of state capture was the strategic positioning of individuals in positions of power through the abuse of public sector appointment and dismissal processes. This was in contravention of the Constitution and applicable legislation,” reads the implementation plan.
The national framework towards the implementation of professionalisation of the public sector, which Cabinet adopted last week, is, according to Ramaphosa, an important instrument to address this.
“The framework makes specific proposals to stabilise the political-administrative interface, ensure merit-based recruitment and selection and more effective consequence management. All public sector legislation governing professionalisation will be reviewed and, where necessary, amended to align with this framework,” reads the implementation plan.
The framework considers an “enhanced role” for the Public Service Commission (PSC), but not so enhanced that it would limit a politician’s role in appointing staff.
“The PSC and other bodies that might be constituted to enhance checks and balances would be confined to managing appointment processes to the point of recommendation, preserving the executive’s prerogative as appointing authority,” reads the plan.
“To address some of the deficiencies identified in the commission’s report, government is taking steps to ensure that appointment processes ensure that the positions of accounting officer and those that have fiduciary responsibility for good financial and corporate governance including the CFO, head of procurement, internal audit executive as well as members of risk and audit committees are held only by individuals who are fit and proper and who are able at all times to meet the honesty and trust requirements.
“In this regard, we will give effect to key recommendations of Chapter 13 of the National Development Plan on ‘building a capable state’ to limit the role of ministers in appointing and dismissing accounting officers.”
In terms of the appointment of state-owned entities’ (SOE) boards, Ramaphosa said in his public address on Sunday evening that the commission found the appointment and removal of SOEs’ board members and senior executives was one of the key causes of state capture.
“The lack of compliance, transparency and accountability in the appointment of board members not only enabled the capture of these companies, but also contributed to a decline in their operational and financial performance.
“That is why government accepts the commission’s recommendations on the need for a process for the appointment of boards of state-owned enterprises that is not open to manipulation.
“This would include the involvement of independent panels with appropriate technical expertise to recommend suitable candidates to the relevant minister,” Ramaphosa said.
The DA has been on a crusade to end cadre deployment and applied to the court to have the policy declared unlawful, based on similar grounds that Zondo made in his findings, despite their application being launched weeks before the final report was issued. The case will be heard on 23 and 24 January.
The ANC, and Ramaphosa in his capacity as president of the country rather than that of the governing party, oppose the application. At a meeting last week, members of the ANC’s national executive committee reportedly took exception to Zondo’s criticism of cadre deployment, News24 reported.
DA MP Leon Schreiber condemned in the “harshest terms” Ramaphosa’s failure to deal with cadre deployment in his implementation plan.
“If Ramaphosa was at all serious about ending state capture, he would have told the nation last night that the corrupt practise of cadre deployment will come to an end ‘with immediate effect’,” said Schreiber.
“A president who cared more about South Africa than about his disgraced political party would have abolished this practise because, as the commission itself confirmed, ‘state capture has been facilitated by the appointment of pliant individuals to powerful positions in state entities’.”
“By failing to act against cadre deployment, Cyril Ramaphosa is fatally undermining the state capture commission’s recommendations on fixing appointment processes.”
Schreiber is unimpressed by the envisaged independent panels to appoint SOE boards.
“The commission recommended the creation of an independent new standing appointment and oversight committee to ensure that any person nominated to a SOE board meets the ‘professional, reputational and eligibility requirements for such a position’. Although it is carefully worded, Ramaphosa effectively rejects this recommendation in his report to Parliament,” said Schreiber.
The commission recommended a permanent independent committee to vet all SOE appointments and investigate misconduct. But Ramaphosa intends to create, what Schreiber considers “far weaker”, independent panels to “play a role in nominating suitable candidates to the relevant minister”.
“This clearly suggests that, beyond window dressing, Cyril Ramaphosa has no intention of weakening the grip his fellow ANC cadres hold over appointment decisions,” he said.
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