29 March 2010, Parktonian Hotel, Johannesburg
Introduction
Corruption as defined by the Prevention and Combating of Corrupt Activities Act, 2004 focuses on the accepting or agreeing to accept, offers of any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person. This narrow definition of corruption appears to limit corruption to the giving and receiving of bribes. This is not a view shared by the general public as unethical behaviour by public officials, which includes preferential treatment of certain members of the public over others, resulting in poor service delivery are perceived to be corruption. Corruption is a global concern that seriously hampers development and diverts resources from where they are needed most. The unfortunate reality is that the poor suffer most.
South Africa has responded actively to the fight against corruption. Comprehensive anti-corruption legislation has been put in place. This includes
The Public Finance Management Act, Act No. 1 of 1999, which sets the framework for accountable management of public funds and provides for criminal prosecution of Heads of Department if found guilty of financial negligence, unauthorized, fruitless or wasteful expenditure.
The Promotion of Access to Information Act, Act No. 2 of 2000, which promotes transparency in government as well as the private sector. It strives to move away from a regime of secrecy by making available, through prescribed processes, publicly held information (with certain limitations).
The Promotion of Administrative Justice Act, Act No 3, of 2000, which promotes fair administrative procedures and redress for citizens. The Act also requires government to follow fair procedures when taking decisions that affect the public or an individual. It gives people the right to request written reasons for decisions they disagree with, which allows them to see whether corruption influenced the decision.
The Prevention and Combating of Corrupt Activities Act, Act No. 12 of 2004, which provides effective legislation to combat corruption in all its forms. It reintroduces the common law act of bribery. Under the Act merely offering to bribe someone whether they accept or not, is corruption.
The Protected Disclosures Act, Act No 26 of 2000, which promotes whistle-blowing as a preventative corruption measure and protects whistleblowers from "occupational detriment" as a result of blowing the whistle in good faith.
Collectively, these pieces of legislation provide a fairly sound basis on which to effectively promote ethical integrity as well as prevent and combat corruption
However, it is at the level of implementation that the country is still experiencing challenges. For example, while departments are required in terms of the PFMA to follow up cases of financial misconduct and report on these to the PSC once they have been finalised, our research shows that a lot of resources are still lost through unauthorised, irregular, fruitless and wasteful expenditure. In the 2007/8 financial year alone, a total of 868 cases of finalised cases of financial misconduct were reported to the PSC, and the total cost involved in these forms of misconduct was R21,7 mil. Departments were not able to recover more than half of this amount from the perpetrators.
A further area in which there is adequate legislation but implementation weaknesses is that of supply chain management. Here, it must be understood that the human element in the area of Supply Chain Management, if unchecked, can have serious negative consequences for accountable governance. The PSC conducted an evaluation of the Public Service Supply Chain Management (SCM) processes within the R200 000.00 threshold focusing on a sample of departments. The PSC, inter alia, found the following:
One of the most visible and collaborative anti-corruption efforts post 2004 was the creation of the National Anti-Corruption Hotline (NACH). The PSC has been mandated by Cabinet to manage the NACH, which came into effect on 1 September 2004. It provides a "one-stop" mechanism for members of the public to report acts of corruption, and also creates opportunities for different role-players to cooperate better in receiving and handling allegations of corruption.
It must be remembered that corruption is a hidden phenomenon because of its criminal nature. The true extent of corruption cannot therefore be known. Only possible indicators of the extent can be gleaned from allegations received via the NACH and from proven cases either in disciplinary hearings or in court cases.
Since the inception of NACH over 7 000 cases of allegations of corruption have been reported to the NACH Some successes of the NACH (by 31 March 2009) include the recovery of R86 million, as a result of investigation of cases reported. There were also 81 officials, who were found guilty of misconduct. Of these, 15 were suspended, 25 were given final written warnings, 29 were dismissed and 12 resigned. The current ratio of feedback to the NACH is 35%, which is in our view very low as it indicates that many allegations of corruption do not get followed up on by departments.
One of the most basic frameworks for promoting ethical integrity is the Financial Disclosure Framework for senior managers. In terms of this Framework, all senior managers are required to annually disclose their financial interests regarding, among others, shares, directorships, property, and remunerated work outside the Public Service. The significance of financial disclosures lies in their promotion of transparency regarding the material possessions of members of the SMS and the businesses with which they associate. The submission of Disclosure Forms has increased over the years (from 62% in 2000/2001 to 85% in 2007/2008). The PSC however remains concerned that something as basic as submitting one’s disclosure forms still fails to achieve a 100% compliance rate. What is even more worrying is that the necessary disciplinary steps are not always taken against the managers who do not comply.
South Africa has an anti-corruption coalition comprised of the Business, Civil Society and Public Sectors, the National Anti-Corruption Forum (NACF). Since its inception in 2001 the NACF has had its fair share of problems. These include balancing the diaries and agendas of three divergent sectors. This led to a break in activities during 2002. Since then the NACF has been revived and has held two national anti-corruption summits.
It is heartening to note that through the anti-corruption coalition, diverse sectors have been brought together in a common goal of promoting integrity in a national sense for the benefit of all.
In light of what I have said, I would like to propose the following actions to combat corruption in the Public Service:
The focus in fighting corruption needs to be balanced: It was found that the current anti-corruption infrastructure is focussed mainly on the investigation of cases of alleged corruption in the departments or public entities instead of focusing on a multi-pronged approach, namely investigation, detection and prevention.
Anti-corruption capacity in departments. The time has come for government to invest substantially in the capacity of departments to prevent and combat corruption. There are clear guidelines in place regarding what such capacity should entail, and the necessary resources should be made available to achieve this. Among others, departments need the capacity to investigate cases of corruption, to institute appropriate disciplinary sanctions, and the competence and will to institute criminal proceedings where necessary, among others. In addition the establishment of a national structure or provincial anti-corruption structures need consideration.
Feedback reports submitted to the PSC show that Departments are too lenient in imposing disciplinary sanctions against corrupt officials found guilty of fraud and corruption. In this regard, the written or final written warnings to officials found guilty of fraud and corruption is very common. Moreover, the PSC also found that disciplinary enquiries are very time consuming and Departments take too long to finalise such enquiries against officials suspended of alleged fraud and corruption. Officials thus ended up on suspension from duty with full pay for long periods while the disciplinary processes are being pursued. In order to strengthen the area, we are of the view that departments should institute criminal action against officials implicated in fraud and corruption. It must be borne in mind that in terms of the Prevention and Combating of Corrupt Activities Act, 2004, it is an offence not to institute criminal procedures against theft or fraud involving amounts greater than R100 000.
The PSC has also made the following recommendations which are specific to managing conflicts of interest in the Public Service.
Code of Conduct: The PSC was central to the development of the Code of Conduct for Public Servants. The Code is partially aspirational as it encourages public servants to be faithful and loyal to the Republic of South Africa, and to put the public first in the execution of their duties. The importance of this approach lies in the fact that it seeks to speak directly to the ethical conscience of public servants rather than just promote adherence to regulatory requirements.
Managing Conflicts of Interest below SMS Level: Officials below SMS level should also disclose their financial interests. Such disclosure should be done to Heads of Department
Cooling Off Periods: The PSC was the first institution to propose that a cooling off period should be considered in relation to the post-employment activities of public servants.
Remunerated Work Outside the Public Service: There should be strict adherence to the legislative provisions to ensure that no public servant undertakes remunerative work outside of the Public Service without obtaining the necessary approval
Staff Rotation: The PSC has also recommended that consideration be made to the rotation of staff in critical areas. This not only promotes staff development, but it can also prevent corruption and conflicts of interest
Gifts: there needs to be better guidelines on the acceptance/non-acceptance of gifts in the Public Service as these are also open to abuse.
Conclusion
As can be seen from what I have said, the fight against corruption will need a far more comprehensive, focused and well informed approach, if it is to be impacted on. I am also of the view that should departments implement the suggestions as proposed it would go a long way in strengthening the government’s fight against corruption.