The African National Congress's (ANC's) application to the Constitutional Court to block the handing over of its cadre deployment records to the Democratic Alliance (DA) is "merely a further attempt...to delay the inevitable", argues DA MP Leon Schreiber.
He filed a responding affidavit to ANC secretary-general Fikile Mbalula's application to the apex court to overturn a high court ruling that the governing party must hand over its cadre deployment committee's records from January 2013, when President Cyril Ramaphosa became committee chairperson and several State capture-related appointments were made.
Mbalula's application was filed three days after the deadline for appealing a Supreme Court of Appeal (SCA) ruling.
Schreiber has been locked in lawfare with the ANC since 2021, when he approached the high court for relief after the ANC refused his application in terms of the Promotion of Access to Information Act (PAIA).
In February, Judge Willem Wepener of the Gauteng High Court in Johannesburg found the ANC's decision not to provide the documents unlawful and ordered the party to hand over the documents, including meeting minutes, WhatsApp conversations, email threads, CVs and all other records of the cadre deployment committee.
Schreiber had to convince the court that he needed the information to protect certain rights, and he advanced three rights:
The first was the DA's wishes to enact legislation about cadre deployment and it, therefore, needed 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.
Third, 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.
"In my view, it is indeed so that the parliamentary oversight is best served with full knowledge of all the factors that go into the appointment of officials," read his judgment.
He ordered the ANC to hand over the cadre deployment records within five days.
The ANC unsuccessfully applied for leave to appeal. Then, on the day it was meant to hand over the records, the governing party launched an application directly to the SCA.
In this application, Mbalula argued that Wepener had "incorrectly found" that the ANC was legally obliged to hand over the documents to Schreiber, who is spearheading the DA's fight against cadre deployment 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 order and judgment," stated Mbalula.
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 do not want to disclose.
Mbalula stated: "The public does not have a general right to receive information on cadre deployment."
On 4 September, the SCA found the ANC's application had "no reasonable prospects of success" and dismissed it with costs. This meant the ANC had to provide the documents to the DA within five days.
In his late application to the Constitutional Court, Mbalula argues that MPs don't have the right to access information through PAIA.
Section 32(1) of the Constitution, which gave rise to the PAIA, states: "Everyone has the right of access to (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights."
However, Mbalula said, MPs aren't "everyone".
He stated: "I am advised that while Section 32 of the Constitution guarantees the right of 'everyone', this does not extend to organs of state.
"I am advised that, in seeking to rely on his powers and privileges as a Member of Parliament, Mr Schreiber was exercising a power o...