The Constitutional Court has this week dismissed the ANC's application for leave to appeal a judgment requiring it to hand over its cadre deployment records. Additionally, the ANC must hand over all minutes, CVs, email threads, WhatsApp discussions and other relevant documentation ("Disclosure Documents")relating to its cadre deployment committee ("Deployment Committee") dating back to 2013, by Monday, 19 February.
While the Disclosure Documents have not been open to the public, the State Capture Commission Report, Part VI Vol II, has stated the following regarding the employment practices and minutes of the Deployment Committee: "Many minutes scrutinised by the Commission show that the Committee did consider loyalty and party membership when evaluating candidates. This would give an unfair advantage to ANC members, which would effectively contravene section 197(3) of the Constitution, which states that 'No employee of the public service may be favoured or prejudiced only because that person supports a particular party or cause."
The Disclosure Documents are therefore likely to be carefully scrutinised by unsuccessful public service candidates, looking to see whether their application for a position was impacted by the decisions of the Deployment Committee. Organs of State and possibly SOEs may be referred to Bargaining Councils and the CCMA relating to unfair labour practices regarding promotion, or face claims of unfair discrimination based on political opinion or other grounds, should unsuccessful candidates perceive unfair influence on their application by the Deployment Committee.
There is also currently a pending application in the High Court to have cadre deployment declared unlawful. Should this application be successful, the future employment of persons implicated by the Disclosure Documents may come into question.
If cadre deployment is declared unlawful, it will not automatically set aside the employment of persons implicated by the Disclosure Documents. Employers could however seek to review and set aside such appointments. It is accepted in labour law jurisprudence that lawfulness cannot be equated with fairness. Simply put, even if an employee's contract of employment can be validly terminated, the termination of their employment can still be unfair. Therefore, should cadre deployment be declared unlawful or employment be reviewed and set aside, employers should still consider the fairness of any considered dismissal.
The Labour Relations Act provides three reasons for a fair dismissal: misconduct, incapacity and operational requirements. If an employee's employment is connected to the Disclosure Documents and that employee can perform their duties satisfactorily, then they cannot be fairly dismissed for incapacity, because their capacity to perform their duties is not at issue. Employers may also find it difficult to categorise an operational requirement which would justify the dismissal of an employee whose employment is connected to the Disclosure Documents. If the employee was somehow involved in his appointment through the Deployment Committee, and not just an innocent beneficiary of the appointment, then a dismissal for misconduct could be fair.
Organs of State and possibly SOEs are therefore likely to face new employment-related disputes stemming from the Disclosure Documents, and they will have to prove that appointments to the implicated positions were fair. Any terminations of employment stemming from the Disclosure Documents, or the possible declaration of cadre employment as unlawful, would also require employers to demonstrate that the dismissals were not just lawful, but fair.
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