Overview on financial misconduct & disciplinary cases in public sector, Relationship with stakeholders & challenges facing provincial offices: Public Service Commission briefings

Meeting report

Briefing by Public Service Commission (PSC)

Adv Richard Sizani, Deputy Chairperson: PSC, said the Commission had submitted its annual report to the Committee, as provided for in the normal public service processes, but there had not been a structured engagement with the Committee on the PSC’s activities and the performance of its functions, as envisaged in sections 194 (4) (e) read with section 196 (6) of the Constitution. Structured reporting would certainly strengthen the work of the PSC and improve its impact. The governance rules of the PSC had been reviewed for implementation with effect from 1 April 2015. These rules provided a framework for the delegation of the work of the PSC to the chairperson, deputy chairperson, commissioners at provincial and national level, and specialist teams -- and working committees of specialist teams -- dealing with complaints and grievances. The rules provide for provincially-based commissioners to represent the PSC in their respective provinces in terms of section (13) of the Constitution and section 11 (b) of the PSC Act. The Constitution empowers the PSC to make recommendations, although these recommendations were not binding but regarded as advice, and reasons should be provided when these were not effected.

The PSC issues directions with regard to personnel procedures relating to recruitment, transfers, promotions and dismissals, which were binding and have to be implemented within 60 days. The PSC’s research led to legislative and policy changes, including the policy and procedure on incapacity leave and ill-health retirement, and the extension of disciplinary cases upon the transfer of the contracts of Heads of Departments (HoDs) from three to five years. There was a continuation of disciplinary cases upon the transfer of an employee between departments and a period of notice upon resignation when a disciplinary case had been initiated. The PSC had also introduced legislation which prohibited public servants from doing business with the government.

The PSC’s research reports on public service leadership had been extensively referred to in the National Development Plan (NDP). The PSC had facilitated a structured debate on its research and invited critical stakeholders to engage on public administration issues, such as round table discussions on the state of the public service, financial misconduct, indebtedness of public servants, conflict of interests and the management of gifts.

Adv Sizani said that the PSC also conducted inspections of service delivery sites and this afforded an opportunity to identify service delivery lapses and come up with immediate solutions through engagement with the relevant departments. These tools of the PSC had had an immediate tangible impact in the areas where they had been conducted. The increase in the number of grievances and complaints lodged by public servants was also an indication of the impact of the PSC. The PSC was regularly invited to make presentations and inputs at local and international conferences, like the Commonwealth Association for Public Administration and Management, and the Association of Chartered Certified Accountants of South Africa. Some of the reports of the PSC had been included as part of the study material for academic programmes and as source documents in research. The PSC’s 2006 State of the Public Service Report had been discussed favourably by EVALTALK, a discussion group drawn largely from members of the American Evaluation Association and the Canadian Evaluation Society. The media had shown keen interest in the work of the PSC and this could be because of the relevance and topical issues that were being produced by the PSC.

The PSC’s stakeholder management framework provided the strategic glue that guided the PSC’s interaction with stakeholders to achieve its goals. In terms of the framework, the PSC had engaged with the Executive on its reports and made presentations to various institutions on its findings and recommendations. There had been round table discussions on its research and topical issues, and it had hosted conferences with international and local experts, such as the recent Developmental State Conference. The PSC had engaged with citizens through Citizen’s Forums and inspections, and facilitated engagement sessions with provincial governments, legislatures and the citizens of various provinces, including North West, Eastern Cape, Limpopo, Gauteng and Mpumalanga. These had proved useful, as they had afforded the PSC the opportunity to share with them the state of the provincial administration in the respective provinces.

The PSC was accountable to the National Assembly (NA) and provincial legislatures, and interacted with the NA mainly through various committees. The PSC had noted that sector specific reports, like education and health, were referred to both the Portfolio Committee on Public Service and Administration and the sector specific committees. Therefore, it was imperative for various committees to ensure that the PSC’s sector specific reports received the necessary attention. Since 2009, there had been an increase in the number of Parliamentary committees with which the PSC had interacted. These interactions were mainly based on the requests for the PSC to advise on public administration practices on which the PSC had not necessarily done work, or was not in its work plan. The PSC had interacted with the Select Committee on Public Accounts (SCOPA) on 11 occasions in the 2009/10 financial year, and this had been part of facilitating a working relationship with the NA. In general, the PSC had a healthy working relationship with all the provincial legislatures. However, a challenge was the uneven uptake of the reports of the PSC in the provinces, and structured engagement. The provincial legislatures missed out, as these outputs were regarded as tools that committees could use in performing oversight functions over the provincial governments.

Advc Sizani highlighted that in some instances, the PSC’s reports were not tabled in the legislatures, although the PSC had submitted them for tabling. The NA and provincial legislatures were furthermore, in terms of the Constitution, involved in the filling of vacancies of commissioners. The time it took to fill such vacancies had a negative impact on the operations of PSC, and three positions were currently vacant. The PSC had noted that there was no uniformity in the requirements stipulated in advertisements for vacancies of commissioner, although the Constitution sets out requirements. The PSC investigates, monitors and evaluates the organisation and administration and personnel practices within the public service and renders advice and makes recommendations to the Executive. The PSC had experienced challenges around the response time to requests for information, and feedback on decisions in respect of the recommendations that had been made by the PSC had been uneven. The Department of Performance Monitoring and Evaluation (DPME) had indicated that it studies the reports and recommendations of the PSC, and reports to Cabinet.

At the national level, interaction with institutions supporting democracy was coordinated by the Office of the Speaker. The coordination at provincial level was uneven and not adequately coordinated in some instances. Through the Forum of Institutions Supporting Democracy (FISD), the PSC and other constitutional bodies had pursued mutual cooperation, collaboration and an alliance. The PSC was in the process of reviewing the effectiveness of its Memorandum of Understandings (MoUs). Over a period of 11 years, there had been a minor increase in posts on the establishment of the Office, from 252 posts to 297 -- 213 at national level and 84 at provincial level. Throughout this period, several attempts had been made to strengthen the capacity of the PSC through policy options submitted to the National Treasury (NT). There had been additional funding that had been allocated to mainly strengthening the human resource capacity of the PSC.

The PSC was supported by a national department, and had a national office in Pretoria and offices in all provinces. At the time, the size and composition of provincial offices in particular were determined by a Ministerial directive. The PSC had 14 commissioners, five at national level and nine at provincial level.

Adv Sizani said that the PSC had operationalised its wide mandate around six key performance areas, and these included:

• Labour relations improvement: to enhance labour practices through timely investigation of all properly referred grievances and provision of best practices;
• Leadership and human resource review: to identify and promote sound human resource management and leadership practices in public administration;
• Governance monitoring: to provide institutional assessments and programme evaluations that support policy management decisions;
• Service delivery and compliance evaluations: to provide participative evaluations as well as evaluations of service delivery models and processes to support policy and management decisions;
• Public administration investigations: to investigate and improve public administration practices and to make recommendations to departments to promote good governance;
• Professional ethics: to promote ethical conduct amongst public servants through the management of the Financial Disclosure Framework (FDF)

The resources of the PSC were currently optimally used towards the key performance areas (KPAs) in serving about 342 125 employees at national level, and 889 483 employees at provincial level, totalling 1 231 608 public servants. The PSC could no longer sustain service delivery, especially at the provincial level, with the current staff capacity and skills accommodated in the approved establishment. In response to an increase in demand from stakeholders, the PSC reviewed its operational plan on a quarterly basis. The budget for 2014/15 was R226 million, and R222 million for 2015/16. This had meant a reduction in the budget allocation for the current financial year. Included in the amount for the current financial year was additional funding amounting to R11.1 million earmarked for rental for office and accommodation. In real terms, there was a shortfall of R15 million, emanating from baseline increases/decreases implemented by NT from 2013. During 2013, the PSC had received additional funding of R29.4 million for the purpose of creating additional capacity based on the policy option that had been submitted. However, the indicative for 2015/16 reflected a reduced budget compared to the 2013/14 and 2014/15 financial years.

Adv Sizani said that both the Constitution and PSC Act focused on the appointment process and no provision had been made to deal with the instance of a renewal. The issue of re-appointment versus renewal therefore required further attention and it was being addressed through the draft PSC Amendment Bill, submitted to the Ministry of Public Service and Administration (MPSA) for consultation with the Cabinet. The PSC Act did not make provision to appoint a commissioner to act in the absence of the Chairperson and the deputy.

The National Development Plan (NDP) provided that consideration be given for the Chairperson of the PSC to play a direct role in the selection of “suitable candidates for top posts”. In order for the PSC to play a direct role, as envisaged in the NDP, this would require amendments to legislation. as it changed the role and functions of the PSC from oversight and advisory to also being involved in appointments.

In conclusion, the PSC needed more structured engagement at the provincial level, as envisaged in section 196 (4) (e), read with section 196 (6) of the Constitution. The PSC would appreciate being invited to oversight visits of the Committee that covered the PSC’s mandate. The PSC was constantly reviewing its internal processes to improve the timelines and quality of its outputs. The PSC had implemented a visibility programme to guide and enhance its engagement with stakeholders and to make its stakeholders aware of its activities and outputs. This had resulted in an increase in the number of requests for engagements with stakeholders, as well as the number of grievances and complaints lodged with the PSC.

Discussion

Ms R Lesoma (ANC) said she hoped that moving forward there could be a schedule of the recommendations that had been made and adhered to by departments, with a clear understanding of the legalistic and financial implications of non-adherence to the stipulated recommendations. The issue of the independence of the structure and how the Commission operated independently was critically important, especially on the part of the provincial commissioners. It was important to ascertain whether the recommendations of the PSC had any impact on the implementations of predetermined objectives. How did the PSC function as a collective, taking into consideration the independence of provincial and national commissioners? What had been the challenges in the appointment of provincial commissioners? What had been done to address those identified challenges? She supported the possibility of extending the mandate of the PSC to assist local government, as this was where there was a huge problem of financial misconduct.

Ms N Mente-Nqweniso (EFF) asked whether the facilitated structured debate with various stakeholders to engage with public administration issues had been proactive and useful in addressing financial misconduct, conflicts of interest and the indebtedness of public servants. The PSC was silent about ways to ensure that the facilitated debate with various stakeholders was able to reach to the people on ground, especially in understanding of the Public Service Charter, where it specified the responsibilities of public servants and the employer. Although the PSC was not responsible for the implementation of its recommendations, it was still the responsibility of the Department to provide the Committee with the data of the recommendations that had been made to various departments in order to improve their overall performance. The issue of integrity was critically important for how public servants carried out their duties and there should be a link between the people on the ground and those at the higher level. There should be a concerted effort to focus on local government extension, as local government had the broad spread and remained the core of government.

Mr S Motau (DA) expressed disappointment that there seemed to be an indication of low morale in the Commission’s presentation, and this might point to an undercurrent of dissatisfaction and unhappiness with the status quo. It would be interesting for the Committee to filter into what had been causing this display of low morale, as it was likely to impact on the effectiveness and outputs of the Commission. He was concerned that the PSC claimed that for 2015/16 financial year there would be not be enough money to carry out its projects, as the funds available would be sufficient only to cater for running costs and salaries. This implied that the staff would be there only to draw their salaries, as there would be no funds to run the projects. Why would the PSC want to have the capacity for the renewal of the contracts of commissioners, as this would have an impact on the independence of the Commission? The re-appointment of commissioners forced the PSC to go to the market place and invite applications, instead of having a facility for the renewal of contracts. Some people might have their contracts renewed because of good performance, but this would create a sense of entitlement.

Mr A van der Westhuizen (DA) expressed concern about the state of the public sector in the country, especially the increase in the wage bill. The labour unions seemed to have power over the government. He also had picked up that there seemed to be low morale within the PSC, and this was indeed likely to impact on the outputs of the Commission. It was becoming clear that other entities in South Africa were being created to take over some of the tasks which rested within the public service in terms of monitoring and evaluation. The focus and mandate of the PSC was misguided, as it focused primarily on the failures like corruption and financial misconduct instead of extending its mandate to the development of skills to improve the outputs in the public sector. It was extremely difficult to create and inculcate a culture of excellence by focusing largely on the failures. He wondered whether there was any particular reason why the PSC was still focused on the development of a citizen’s toolkit, considering the limited resources and implemented budget cuts.

Dr M Cardo (DA) requested the Commission to elaborate on the suggestion to extend the mandate to local government, as this would require additional resources and sounded like a potentially enormous, complicated and very costly empire-building project. Was this intended to cover every municipality in the country? How much would it cost? How many posts would be required? What would be some of the repercussions in terms of capacitating the post-fillers and developing a new monitoring and evaluation (M&E) instrument? The late Minister, Mr Collins Chabane, had indicated that legislation was planned to strengthen the powers of the PSC, and he assumed this would be covered in the draft PSC Amendment Bill. What amendments would support the strengthening of the powers of the PSC, especially in regard to the imposition of penalties for non-compliance? It had also been indicated that the draft Amendment Bill would empower the PSC to enforce directives related to human resource management, such as regular appointment and disciplinary procedures. He wanted to know if the PSC supported the proposal by the NDP for the creation of a “super” Director-General (DG) in the Presidency. It had also been highlighted that there was a need for further study and research on the creation of this system, as it was a concept that would be borrowed from overseas. Had this study commenced? What was the time-line for its completion? Was the Commission in favour of the suggestion by the NDP that the PSC must be involved in appointing senior managers? Was this not likely to be in conflict with the watchdog role of the Commission?

Dr Cardo said it would be interesting to hear how seriously the PSC had taken the recommendations that had been made in the Kader Asmal report on Chapter 9 institutions. The three recommendations in the report that had stuck out for him included a recommendation that the process of selecting and appointing new commissioners should take into account the need for staggering, so as to avoid the institutional memory loss. The report had also recommended a reduction in the number of commissioners from 14, to between five and seven. Finally, the report had recommended that the commissioners located in provinces should play a greater advocacy role by actively promoting the work of the Commission at provincial level.

Mr M Ntombela (ANC) commented that the issue of the structural independence of the commissioners at national level was a cause for concern and gave an indication that there might be a similar trend at provincial level. What was the strategy in place to sustain the structural independence of the commissioners at the provincial level? Did this have an impact on the lack of engagement of the reports produced at provincial level?

The Chairperson recommended that the PSC’s Deputy Chairperson should rather summarise the main part of the questions that had been posed, and then provide comprehensive responses in writing. The possible expansion of the mandate to local government would require additional funding in order to operate efficiently. There were a number of administrative challenges that would require the assistance of the Committee. It was worrying that the PSC had been supported by the Department of Public Service and Administration (DPSA) as this was not supposed to be the case, especially in the 20 years of maturity. What measures had been taken to ensure that the Commission was structurally independent?

She requested that the Committee should be provided with the contact details of the commissioners responsible for the various clusters. The PSC would need to advise the Committee on how to create uniformity in the advertisements for vacancies of commissioners and the Committee would do its best to foster the relationship with the Presidency to meet at least twice a year. It was quite clear that it was only the Presidency that could resolve most of the issues that the Commission was still grappling with. On the issue of unevenness in the FISD, the Committee would call all the provinces that were not compliant to the FISD. The Department would need to provide the Committee with the budget projections which would encompass the expansion of the mandate to the monitoring of local government. She asked if there was an allocated budget for the unfilled posts, especially in the unit of integrity and anti-corruption, monitoring and evaluation and corporate services.

Adv Sizani responded that it was important to address the issue of the structural independence of the Commission, and how to work on that in the near future. He assured the Members that the team was not depressed or suffering from low morale, as most of the questions that had been asked were issues that had been seriously considered and had resulted in recommendations that were already in the Office of the Presidency. The PSC would need to a have a special briefing on the role of commissioners, the Chairperson and Deputy, and the kind of competencies that were required for these positions, and further discuss the full mandate of the Commission in terms of legal opinion and practical implications. He dismissed the insinuation that there was lack of focus within the Commission as most of the areas that had been discussed today were areas that were mostly affecting the Public Service. It would be strange for any government not to have a monitoring and evaluation instrument, and the mandate of the Commission had been set by the Constitution, not the Department. The constitutional mandate of the Department had not been influenced by the Department. The Committee would be provided with comprehensive responses by 2 June 2015.

The Chairperson accepted the stipulated date for the written responses, and requested the next presentation by the PSC.

Briefing by PSC: Overview of financial misconduct and disciplinary cases in the public sector

Mr Mike Seloane, PSC Commissioner, indicated that the accountability required of public financial management was defined in the Public Finance Management Act (PFMA). Among others, it provided for the frequency, level of detail and responsibility for reporting to promote greater transparency in the financial affairs of departments. Read together with the regulations, it required departments to report on finalised financial misconduct cases to the executive authority, the PSC and the DPSA. The PSC reported annually on the status of financial misconduct reported by departments, to determine whether departments were   adhering to applicable prescripts, and public servants were held accountable for behaviour in contravention of the PFMA.

It was important to highlight that the total number of finalised cases of financial misconduct reported by departments from the 2001/2002 financial year to 2012/2013, was 10 483. For the financial years 2011/2012 and 2012/2013, the national departments and provinces that reported the highest number of cases were the South African Police Service (SAPS) with 434 cases, Justice with 65 cases, and Defence with 33 cases. The provinces with highest cases in 2011/12 were KwaZulu-Natal (133), Gauteng (129) and Limpopo (81). In the financial year 2012/13, Gauteng had the highest cases with 189, followed by the Western Cape with 105, and then KZN.

The total number of cases of misconduct at salary level 1-8 since 2006/07 had been 4 831, with 922 at salary level 9-12 and 291 at salary level 13-16. Tinancial misconduct prevailed at all levels of the Public Service, but the largest number of financial misconduct cases were   encountered at salary levels 1 to 8. It was concerning that the number of Senior Management Staff (SMS) members found guilty of financial misconduct had increased between the 2004/2005 and 2012/2013 financial years. This was a particularly worrying trend, because SMS members played a critical role in the promotion and maintenance of sound financial management, and were the primary stewards of public resources in their respective departments. Out of the 10 483 finalised cases of financial misconduct reported between the 2001/2002 and 2012/2013 financial years, employees had been found guilty of financial misconduct in 8 696 (83%) cases. 918 cases had been withdrawn because there had been a lack of evidence to proceed with the case, or a lengthy timeframe since the incident had occurred, or the employee had resigned, retired or died.

The sanction of a final written warning was the most prevalent sanction imposed in the past five financial years. This was followed by discharge from the public service and a combination of sanctions. Sanctions imposed in disciplinary cases were at the discretion of the chairperson of the disciplinary hearing, having considered the merits of the case and the mitigating and aggravating circumstances. The reports that had been submitted by departments since the 2001/2002 financial year showed that there were inconsistencies in the sanctions imposed for cases of a similar nature. The creation of a Public Administration Ethics, Integrity and Disciplinary Technical Assistance Unit, as provided for in the Public Administration Management Act, could contribute to greater consistency. An example of such a case was where an employee had been found guilty of theft of an amount of R33.34 and the sanction imposed was discharge, whilst employees who had committed fraud with a larger amount involved were issued with a sanction of final written warning, or suspension without pay. The departments should make sure that the chairpersons they appointed were capable and credible.

Mr Seloane said that when the State suffered losses or damage through criminal acts or possible criminal acts or omissions, the matter must be reported in writing to the Accounting Officer and the SAPS (Treasury regulations). Out of the 8 696 employees found guilty of financial misconduct, criminal proceedings had been instituted in 2 579 cases. It was important to highlight that not all acts of financial misconduct, such as gross negligence and financial mismanagement, would constitute a criminal act. The total cost of financial misconduct between the 2001/2002 and 2012/2013 financial years was about R2 billion. The PSC had since the 2004/2005 financial year requested departments to report annually on the amount recovered from employees found guilty of financial misconduct. From the 2004/2005 to the 2012/2013 financial years, departments reported that an amount close to R400 million had been recovered. The recovery was continuous but slow, upon finalisation of the disciplinary process. Most departments did not report on the outcome of finalised cases, although the PSC continuously reminded departments to report to it.

To improve the quality of reports submitted to the PSC, a reporting format had been developed that was available on the PSC website and these reports should be signed off by accounting officers. The PSC conducted data verification visits to departments and provided advice and guidance on the maintenance of a data base of cases, the definition of misconduct, the recovery of monies, etc. The number of cases of financial misconduct reported was low when compared to the high rate of unauthorised, irregular and fruitless and wasteful expenditure, as well as the rate of non-compliance within the Public Service. This implied under-reporting.

In conclusion, there was a need for departments to put in place effective systems that would enable them to finalise all cases of financial misconduct effectively and to keep accurate data to identify trends. Failure to put such systems in place would continue to undermine efforts to deal effectively with acts of corruption. The PSC had called upon accounting officers to be hands-on in dealing with cases of financial misconduct and had requested them to ensure that fully completed and accurate reports were submitted to the PSC in compliance with the Treasury Regulations by the due date. Measures had been implemented to ensure that cases where the state had suffered losses or damage as a result of financial misconduct were reported to the SAPS.

Discussion

The Chairperson again expressed concern about the low morale in the Commission, as it had even taken more than seven minutes for the presenter to start with the presentation, and she wondered whether this was caused by the fact that the issues discussed involved financial misconduct. The presentation had also been more focused on complaints than offering the way forward in addressing these challenges. Chapter 10 of the Constitution allowed the Commission to propose measures to ensure effective and efficient performance within the Public Service, and this needed to be unpacked, as it meant the PSC also had the right to propose legislation. Why was there no legislation that would enforce a turnaround time for the cases, so as avoid all the delays in cases of financial misconduct? It was concerning that there had been an employee who had been found guilty of theft of an amount of R33.34 and the sanction imposed was discharge, while employees who had committed fraud with a larger amount involved had only been issued with a sanction of final written warning, or suspension without pay.

The Chairperson commented that the issue of suspension of employees also contributed to the huge wage bill that the Commission had been complaining about, as employees were   suspended with full benefits and some cases tended to take longer that was anticipated. Who was paying for the lawyers that were involved in the cases of financial misconduct? There was a need to categorise the case,s so that minor cases could be dealt with internally to avoid unnecessary expenditure.

Ms Lesoma said that most of the issues that had been raised by the Chairperson had already been highlighted last year, and this clearly illustrated that nobody seemed to take note of the recommendations that had been made by the Committee. The presentation by the Commission sounded toothless, considering that it had the constitutional power to propose legislation. The PSC would need to play a meaningful role in terms of the appointment of the senior management service (SMS) as they signed performance agreements. One of the areas of focus for the current administration was to have clean governance, as this had also been highlighted in the NDP. There were issues that needed to be elevated to Presidency level and it would be imperative for the PSC to write to the Committee on the main challenges, whether legislative or financial, that still needed to be addressed. She highlighted the importance of following the prescripts of financial Supply Chain Management (SCM) so as to root out corruption and financial misconduct. The Committee should invite the provincial DGs in order to establish the provinces where financial misconduct was the highest.

Ms Z Dlamini-Dubazana (ANC) said she wanted it to be put on record that a thief was a thief, regardless of political affiliation or race, and it was sad that all the allegations of financial misconduct had been often directed at the President. The Committee would need to appreciate that the Commission was doing its work, and that perhaps there was a bottleneck somewhere which needed to be undone by the Committee. She had also noted the low morale of the commissioners and assumed that maybe this was caused by the fact that despite all their efforts, nothing was being done to implement their recommendations. It was scary to learn that almost R2 billion had been lost to financial misconduct, as this was taxpayer’s money. The Commission had made a mistake by not using the legislation to report all these cases to the Executive Authority or the legislature so as to ensure that recommendations were enforced in the Public Service. The Committee would need to find a common voice to fight the cancer of corruption, as there was a legislative framework that was missing somewhere which could empower the Commission.

Mr Ntombela said that there was a need to find a way in which the Commissioners could communicate about whatever the tension was within the Commission -- whether it was a bottleneck or the legislative framework. He jokingly said he had not picked up any particular tension or low morale, and maybe it was the Committee Members that lacked any smiles, as everyone looked very serious and disgruntled. He asked if the trends on financial misconduct in the presentation suggested that the SAPS, Defence and Justice were the most corrupt, or most competent in addressing the issues of financial misconduct. The appointment of chairpersons during a disciplinary process had a huge impact on the outcome of the case and the rate at which the money was recovered. The Commission would need to come with a strategy on the competencies to be looked at prior the commencement of disciplinary cases, so as to have a valid and reliable outcome. What progress had been made in the cases where a huge sum of money had been lost? How long had those cases been going on?

Ms Mente-Nqweniso supported the suggestion to have data on financial misconduct by provinces, so as to be able to plan carefully. It would be interesting to know which unit within the PSC was collecting all the data of financial misconduct and conducting the investigations to verify the facts in order to see if that information was a true reflection of each and every province. There was problem of inconsistency in terms of the sanctions that had been imposed on employees found guilty of misconduct, and it would be important to know what the PSC was doing regarding the issue. There was a no way that an employee that had stolen R33.34 could be dismissed while there were people who had stolen millions and were   still in the system, enjoying the full benefits. What was the PSC doing in those instances?

She also expressed concern about the presiding officers in cases of financial misconduct, and suggested that the Commission needed to formulate a structure on how the presiding officers should be appointed. There was political interference in some cases, as there were   individuals who were often saved or purged, despite all the evidence that was available. She asked the Commission to provide information regarding financial misconduct per department. This would be helpful as it would assist the Committee to summon those departments to find out about sanctions that had been imposed on those found guilty, and whether the money had been recovered or not.

Mr Motau indicated that the fact that there were 4 831 cases at lower levels showed that most of the employees at that level were probably stealing small amounts of money, but it would be interesting to know if any analysis had been done to look at the money that had been lost at the lower levels compared to that at the senior management level. What were the main types of financial misconduct crimes that had been committed? It was clear from the presentation that the SMS had found greener pastures in the Public Service, and it showed an increase in the number of SMS found guilty of financial misconduct. This could essentially point to the lack of measures in place to prevent corruption at this level, as SMS felt like they could get away with any financial misconduct. What would be done by the PSC going forward in terms of changing this trend?

Mr Van der Westhuizen requested more clarity on what constituted financial misconduct, as the Public Finance Management Act (PFMA) stated that even paying an account late constituted financial misconduct. Who was responsible for charging the accounting officer, to ensure that the disciplinary hearing was set up and steps were taken to continue with an investigation? How many cases had been taken against accounting officers since the PFMA came into effect? It looked like it was easier to discipline the employees lower on the ladder, but difficult to handle the SMS. Was there a strategy in place to ensure that the SMS were   also able to feel the pinch?

Dr Cardo wanted to know whether the draft PSC Amendment Bill could address the shortfall where the Commission was currently unable to impose sanctions in disciplinary cases, which were at the discretion of the Chairperson who held the hearings, as the draft could possibly give thought to issuing a directive relating to disciplinary procedures.

The Chairperson again recommended that the PSC should rather summarise the main part of the questions that had been posed and then provide comprehensive responses in writing. The Committee should be provided with details of the round table discussion that had been taking place on what constituted financial misconduct, and the conclusion that had been reached.

Mr Seloane responded that the round table discussion on what constituted financial misconduct was still on-going, and no conclusion had been reached as yet. It was important to highlight that an accounting officer committed an act of financial misconduct if that accounting officer wilfully or negligently failed to comply with a requirement of sections 38, 39, 40, 41 or 42 of the PFMA, or made or permitted an unauthorized expenditure, an irregular expenditure or a fruitless and wasteful expenditure. More importantly, financial misconduct included an official to whom a power or duty had been assigned in terms of section 44, who committed an act of financial misconduct if that official wilfully or negligently failed to exercise that power or perform that duty. The Minister and the Executive Authority were responsible for the situation where an accounting officer was the one who wilfully and negligently committed an act of financial misconduct. He jokingly apologised for exuding sadness, as the cases of financial misconduct were indeed depressing.

Mr Seloane said that in just the past two weeks in Gauteng, one of the accounting officers -- the Head of the Department of Finance – had been dismissed after a disciplinary process. He had been suspended last year and later found guilty of financial misconduct. The relationship between the Commission and the Committee was critically important so as to ensure that all the public servants were held accountable and cases were followed up. The Commission had been doing an overview of finalised cases on an annual basis, and the reports had been tabled in Parliament. The cases of financial misconduct included corruption, theft, gross negligence, misappropriation and misuse of funds, and financial mismanagement. There had been a small number of cases of corruption, and this might have been because of the failure of the Department to go deeper into investigating these cases. The PSC had done an analysis of the number of cases per province in terms of money involved in finalised cases, amount recovered, no loss to state and the amount still to be recovered. The PSC also went into detail on each department in a particular province.

Ms Dlamini-Dubazana interjected and asked for more information on the 105 cases in the Western Cape in the 2012/13 financial year, as this was often regarded as a “clean province”.

Mr Seloane responded that the amount involved in the 105 cases of financial misconduct in the Western Cape was R764 000. The graph on trends on financial misconduct reflected that the SAPS had mechanisms in place to detect cases of financial misconduct, as the cases that had been investigated by SAPS in 2011/12 were 434, and had gone down to 72 in the 2012/13 financial year.

Mr Van der Westhuizen added that this might also be interpreted as under-reporting of cases of financial misconduct.

Mr Seloane responded that there was indeed such a possibility and thieves always had ways of stealing money without any detection. The Committee would be provided with the analysis of the 4 831 cases at the lower level, the amount of money involved and the legislative framework that was required to ensure that the Commission was effective.

The Chairperson asked what progress had been made regarding the DG of the Department of Arts and Culture, who had been suspended.

Mr Seloane said that this information would also be provided in the written responses. The Integrity and Anti-corruption unit was responsible for the analysis of cases and verification of the information from various departments, and the commissioners sometimes visited the departments to verify the information that had been provided.

The Chairperson thanked the PSC for the presentations that had been made and suggested that the PSC would need to work together with SAPS, as they looked to be effective in terms of detecting cases of corruption or financial misconduct. Detailed information should be given to the Committee on the situation in different provinces so attention could be focussed on a particular province and the predominant cases of financial misconduct, and this would assist the Committee in monitoring the performance of the PSC.

The meeting was adjourned.