Meeting with City of Johannesburg delegation

Meeting report

Meeting with delegation from the City of Johannesburg
The Chairperson welcomed the delegation and each of the members of the delegation introduced themselves and their role.  It was noted that many of the National Council of Provinces (NCOP) members were on oversight duties and therefore not available.

He explained that the purpose of the meeting was to have a conversation and share ideas on the topic. The conversation was the beginning of the process of giving each other ideas and learning from one other. The Program included a presentation from the City of Johannesburg, questions and comments and a briefing by the Registrar of the Joint Committee, Ms Fazela Mahomed on the Code of Conduct.
 
The Chairperson of the City of Johannesburg’s Ethics Committee, Ms Ntomizodao Nxumalo began by stating that the Ethics Committee in Johannesburg was a new committee which started last year. It had an interest in visiting the Joint Committee to learn from it.  The committee did not meet daily, but was directed by cases that came its way and dealt with problems of ethics in municipalities. It was a multi-party committee.

When there was misconduct committed by a councillor, the Speaker of the Council assessed if it was an issue of ethics and it was then channelled to the Ethics Committee.  Members of the Ethics Committee investigated the nature of the misconduct on the day and no members had prior knowledge.  A commissioner assisted, guided by the code of ethics which stated if the matter was beyond the mandate of the committee.  If so, it got referred to the commissioner, who had a different set of terms of reference.

Once the commissioner had worked on the case, it got referred back to the committee, who then deliberated on the case and assessed if the commissioner had applied his mind.  The committee then took its action from there. The committee also had a whip.  The committee had legal advisors to assist, but because the committee was fairly new, it needed information from other sources to assess if it was doing its job correctly.   The committee wanted to assess whether it was doing its job correctly, learn from the Joint Committee, wanted guidance and would have liked the opportunity, if the budget allowed it to observe how the committee deliberated on its issues.

Ms Nxumalo added that the committee ensured disclosure, as every councillor should disclose their interests each year and often reminders were sent out. They were also assisted by the Commissioner.

Johannesburg Ethics Committee member, Mr Bongani Zondi, noted that a challenge to the committee was the way it conducted itself as a multi-party committee. There were issues of bias which occurred depending on the councillor before the committee.  He asked the Joint Committee for advice on how to be fair and transparent in order to create an outcome that could be embraced by all.

Mr Zondi also stated that the Speaker referred matters to the committee after she has assessed it.  He asked if it should not be the other way around where the Speaker referred matters to the Ethics Committee and it was assessed if it was a matter for the committee.  Some council members, who had been accused of an issue, approached and referred the matter directly to the Commissioner and not to the Speaker, thereby bypassing the system.  He asked if there were different sanctions the committee could apply.

On the issue of sanctions; there will always be a call and demand for more sanctions and it was a political terrain.  In a democracy where officials were elected, in making a decision on sanctions, the will of the people should be looked at. The Joint Committee had no right to expel an elected Member.   Johannesburg’s Ethics Committee could however, but this should not be used as a political tool..

Councillor Paul Masemola asked if the Committee should subpoena councillors if they did not appear.

Counsellor Gert Niemand asked how the Joint Committee ensured open and frank dialogue so that the committee was not divided along party lines.

Mr B Mashile (ANC) said that in the establishment of the Ethics Committee, it was made up of politicians, but once the committee had been established it should function as a unit. The committee should represent those, rather than the member’s party’s interests. There should be people on the committee who are able to say the right thing even if they were not liked by others, irrespective of the councillor.  The committee was a unit that needed to be able to say if the councillor had crossed the line. A Code of Conduct helped to subscribe to a particular value system, it helped to uphold that system and it set boundaries. The role was not an adversarial one, the role was to determine the facts and then make a decision based on the facts. When the facts were difficult to determine, the Council should ask the Integrity Commissioner to help in establishing the facts.  It was important to follow fair procedure in a case, not just in theory but the Council must be seen to be fair too, so that the outcome would be accepted. He encouraged the Ethics Committee not be straightjackets by the law and to be guided by integrity, because acts that were contrary to the value system affected the public trust.

The Chairperson stated that if he summarised all the issues raised, all the questions related to how the Committee ran in Parliament. As it would be difficult to separate the issues, Ms Mahomed, would therefore present on the Code of Ethics which would cover most of the questions raised.

Ms Mahomed explained that the Council was established after it was given its mandate in 1996 and the Code of Conduct was informed by legislation and the Rules of Parliament. There were two different systems on how the Joint Committee and the Johannesburg Ethics Committee operated, however what was important was the purpose of a code of ethics. The Code was important, because it informed the work of the committee and was part of a broad system of integrity. It could only work if the members enforced it and there needed to be political will. The purpose of the code was not only to investigate issues of misconduct, but to encourage members to do the right thing and to participate in the process correctly. This included developing guidelines and creating workshops.

Council members were permitted to have business activity but you needed to explain to councillors what the guidelines of these activities were. The committee needed to look at what the community found to be acceptable in order to gain the trust of the leaders in the community. It was not just about punitive measures and it would not yield great results, but it was about shaping the conduct and behaviour of individuals.  The scope of the Code of Conduct applied to Members of Parliament, their spouses and dependants (people who lived with a Member). There was public disclosure and a register of the members’ disclosure was also available on the website. In the past 17 years, the only time a Member had not disclosed was when that member had been sick.  Members must disclose and Parties needed to hold their members accountable to this.

All codes of conduct had ethical provisions.  Parliaments had ethics and values which were similar to the ethics and values for provinces. Values included in the Code of Conduct were good-faith, leadership, selflessness, honesty and integrity.  Members should act in the interest of the public and uphold the values of the Constitution.  The Code of Conduct also always discussed the issue of conflict of interest.  As humans, we would always have private interests; however it was also your job to represent public interest.  The rules were simple: do not accept any gifts that could be considered a bribe and councillors could not be paid to lobby for someone else’s interest.

More relevant to members of Parliament, were he issue of unauthorised use of confidential information for personal interest.  This created distrust from the public.   The key role of the committee was to be bound by the values that represented the interest of your constituency. Many of the rules were there to remedy evil.  Members of Parliament could not do any business with any state entity.  Their spouses could, but MPs could not interfere with that business agreement. It was a comprehensive rule. The Code of Conduct also required MPs to disclose any great liability it owed (this was not in the public domain) and required comprehensive disclosure of gifts. Breaching of the code was an issue that each committee struggled with because you would be judging your peers and there were often concerns of political loyalty or political seniority. By setting up an Integrity Commissioner, as the City of Johannesburg had set up, it relieved a lot of pressure off the committee.

Ms Mohamed stated that she did not want to tell the Johannesburg Ethics Committee what to do, as their circumstances were different, but what had worked for the Joint Committee was to clearly define the roles of the Committee and the Registrar so that there was no confusion. This took away the pressure on individual members and there was also a strict process for complaints, because a clear process created fairness. The procedure needed to clearly define the relationship between the Council and the Commissioner. There would always be issues of political will, but there needed to be a focus on ensuring the integrity of the Council. The committee needed to take itself seriously too and there should be no issues of bypassing the process.

Mr Sam Matheus (EFF) was encouraged by the fact that at the lower level of governments there was a focus on ensuring the promotion of ethical and proper conduct. He stated that the opposite of ethics is evil and that the maize of ethics should be conducted with courage and conviction. It encouraged the City to create its own by-laws and created a framework that all councillors should subscribe to.

Mr Zondi noted that the biggest challenge was to develop a handbook.  After looking at the handbook of Parliament, the Ethics Committee would begin to look at developing one.

The Chairperson said there was a Code of Ethics in the legislature for municipal councils (handed out to each delegate) and encouraged everyone to read the code of conduct given to the delegation.

The meeting was adjourned.