In a landmark decision, the African National Congress (ANC) has been ordered to disclose all documents pertaining to its cadre deployment committee dating back to 2013. This move by the Constitutional Court could potentially unravel a web of legal battles surrounding unfair labour practices and discrimination within state entities and state-owned enterprises (SOEs) in South Africa.
The mandate for transparency, enforced by the apex court, necessitates the submission of minutes, CVs, email correspondences, WhatsApp discussions, and other pertinent records related to cadre deployment by Monday, 19 February.
Jan Norval, an executive specializing in labour disputes at ENS Africa, emphasized the critical nature of these documents, suggesting that unsuccessful candidates within the public service might scrutinize them to ascertain whether their job applications were unfairly influenced by the decisions of the Deployment Committee. Consequently, individuals could lodge complaints of unfair labour practices and discrimination with Bargaining Councils or the Commission for Conciliation, Mediation, and Arbitration (CCMA).
The State Capture Commission Report, which gained access to some of these records, unveiled concerning revelations. It highlighted instances where loyalty to the ANC and party membership were considered during candidate evaluations. Such practices, as outlined in the report, potentially violate the constitutional mandate against favouritism or prejudice based on political affiliation.
A pending application in the High Court seeks to declare cadre deployment unlawful, indicating the gravity of the situation. If successful, this could cast doubt on the future employment of individuals implicated by the disclosed documents.
However, even if cadre deployment is deemed unlawful, employers must adhere to principles of fairness in any subsequent dismissals. The Labour Relations Act outlines three grounds for fair dismissal: misconduct, incapacity, and operational requirements. Notably, if an employee can satisfactorily perform their duties, their connection to the disclosed documents should not warrant dismissal for incapacity alone. Conversely, if an employee’s involvement in their appointment through the Deployment Committee suggests misconduct, a dismissal on such grounds might be deemed fair.
The revelation of the Disclosure Documents could precipitate employment disputes within Organs of State and SOEs. Employers are tasked with substantiating the fairness of appointments to implicated positions. Any terminations or declarations of unlawful cadre employment necessitate evidence of lawful and equitable dismissal procedures.
In a country where transparency and accountability are paramount, the disclosure of cadre deployment records marks a significant step towards fostering a fair and just employment landscape. However, the ensuing legal battles underscore the challenges in reconciling political practices with constitutional principles in the realm of public service employment. As South Africa navigates these complexities, ensuring adherence to the rule of law and safeguarding the rights of all employees remains imperative for a progressive and inclusive society.
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