Cadre deployment is not a government policy, President Cyril Ramaphosa's counsel said in arguing that the Democratic Alliance (DA) is barking up the wrong tree in its court challenge to cadre deployment.
A full Bench of the Gauteng High Court in Pretoria had its second day of hearing arguments on the DA's application on Tuesday.
While the DA has long been critical of the policy, it lodged its case about two weeks before the final parts of the Zondo Commission report were released on 22 June. The DA asked the court to declare the policy unconstitutional.
In the report, Chief Justice Raymond Zondo concluded that cadre deployment played a significant part in enabling state capture.
The DA's argument to the court – contained in an affidavit by leader John Steenhuisen – relied on a strikingly similar legal basis as Zondo.
Both Zondo and Steenhuisen referred to Section 197(3) of the Constitution, which states: "No employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause."
Zondo emphasised that Section 197(3) "precludes the favouring and prejudicing of any employee for supporting a particular political party or cause".
In his responding affidavit, ANC treasurer-general at the time, Paul Mashatile, said the ANC wasn't bound by the Constitution or the commission's findings.
"Chapter 10 of the Constitution neither binds the African National Congress nor requires the African National Congress to only adopt policies in line with its provisions," stated Mashatile, who has since been elected as the party's deputy president.
The ANC's counsel, advocate Les Morison SC, during arguments on Monday elaborated on this theme.
"There is no statute that says you cannot have a cadre deployment policy. The DA wants the court to interpret the Constitution to come to that conclusion to say, in effect, that the Constitution says you cannot have a cadre deployment policy. There is no explicit text to that effect," Morison said.
Arguing for Ramaphosa and the government on Tuesday, advocate Adila Hassim SC, said the DA doesn't have a "valid constitutional attack" on the ANC's policy.
She said that the court is asked to look at a non-binding policy.
"It's for the ANC to decide what it wishes to do with its internal policies. It is for the president to ensure that the Constitution and the law is upheld," she said.
She said the DA brought an "abstract case" that the policy undermines the Bill of Rights, and they require more than the "bold assertion" that constitutional rights are being violated.
"This policy is not a government policy," she said.
Hassim argued that the DA did not bring any evidence that the president or the government violated any rights through this policy and that it failed to connect any appointment to the policy and that it conflates government conduct with the policy.
She further argued that apart from the fact that the policy isn't law, the Constitutional Court held that if a law has been abused, it isn't the law that should be impugned, but the abusive conduct.
Advocate Anton Katz SC, for the DA, said there are instances that it is appropriate to challenge the policy itself, rather than how it is implemented.
He said the respondents - which also included the public service and administration minister – had mischaracterised the DA's argument.
Katz read from the policy and pointed out that if a cadre failed to adhere to it, it would be considered a "serious offence" and action would be taken by the appropriate structure.
"The framework of the policy tells the court this is a document that undermines the Constitution and the multiparty system of government," he said.
He read from the policy that it aims to "deepen the hold of the liberation movement" – the African National Congress (ANC) – over the levers of power, including the "entire civil service".
"We intend to emphasise, they want to take hold of the entire civil service. That's the goal!"
Other "levers of power" mentioned in the policy include the Cabinet – which the Constitution states should be appointed by the president – education institutions, "independent" commissions and agencies, and the media.
Katz argued that the entire policy is infused with the notion of moving to a one-party state.
He said the ANC is subject to the Constitution, just like anyone else in the country.
Judgment has been reserved.