The workshop on ethical standards for elected public representatives and their implementation, was the first in a series of three workshops for all provincial legislatures, metropolitan municipalities, district councils and local municipalities. It was indicated that South Africa had an elaborative integrity framework which included codes of conduct to guide the Executive, Parliament, the different legislatures and councillors. The importance of implementing the codes of conduct was emphasized. Public officials had a responsibility to create awareness on the prevention of improper conduct. Ethical decision making should be promoted, and best practices should be identified. Public trust had to be earned, and the workshop was aimed at creating awareness on ethical requirements.
The Chairperson of the National Council of Provinces (NCOP) said that the code of conduct laid down standards to be followed by public representatives. Honesty was emphasised as the first quality a leader should possess. The importance of a consistent system and the need to curb leakages in the system, was also emphasised.
The code of ethical conduct for members of Parliament was presented by the Registrar of Members’ Interests. It was based on a peer review system that was governed by a committee of the peers. Elected Members of Parliament (MPs) had to represent the interests of the public at all times. It was pointed out that Parliament was comprised of two sections -- the public and confidential section – and the categories for each were outlined. Areas of conflict of interest, penalties in the event of a breach of the code, and the disclosure process were examined.
The Integrity Commissioner (IC) for the Gauteng provincial legislature, presented the ethics framework for members of the Gauteng provincial legislature. The composition and powers of the privileges and ethics committee, the categories of disclosure for councillors, and the functions of the IC were outlined. The process with which breaches of the code were dealt with, were highlighted. Gauteng had adopted the Canadian framework model in addressing the issue of ethics. Fundamental areas of review in the code of conduct, as well as the issues that informed the review of the code, were also discussed.
The Speakers of the Eastern Cape Legislature and the eThekwini District Municipality of KwaZulu-Natal (KZN) presented the frameworks of the codes of conduct guiding the ethical conduct of the councillors in their provinces. These included the categories of disclosure, conduct at meetings, processes by which breaches of the code were addressed, the composition of the ethics committees, powers of the Speaker, the duration of committee meetings, as well as monitoring mechanisms in respect of compliance with the code of conduct.
Participants at the workshop raised issues and questions on the need for a coordinated approach to ethics by all municipalities; the distinction between ethics and conduct; the applicability of the Public Service Integrity Management Framework to all levels of public officials; the declaration of interests; the application or practical implementation of the code at the local municipalities’ level; the collusion of political and business interests of public representatives; the need for uniformity in the implementation of the code across all spheres; the separation of powers, especially at the municipal level, and in respect of the powers of the Speaker as provided for in item 13, schedule 1 of the Systems Act; the need for provincial legislatures to extend the issue of ethics to local municipalities; the functions of the Speaker in municipalities that had an ethics committee; the establishment of structures in municipalities; where the consequences for breaches of the code were provided for, and if they were available for public scrutiny; the possibility of using a blanket approach for municipalities without ethics committees; and the need for the preservation of institutional memory.
The Chairperson said the workshop was the first in a series of three workshops where the views of all provincial legislatures, metropolitan municipalities, district councils and local municipalities would be considered. It was expected that the forum would create an opportunity for discussions on an important public issue, such as the promotion of ethics and integrity in all institutions. The question of ethics and integrity of institutions was very important, because it attracted media attention and public discourse.
South Africa had an elaborative integrity framework which included a code for the Executive, Parliament, different legislatures, and councillors. These codes of conduct were important, as they assisted in setting standards for the behavior of elected representatives. The codes stipulated the values that should guide conduct, provided clarity on acceptable conduct, and set clear rules on how public representatives should conduct their private business interests. However, the best codes could be effective only if proper implementation was ensured.
It was hoped that reports would be received on the implementation of the requirement for the disclosure of financial interest, during the workshop. There was a need to measure the extent to which the ethical provisions in the various codes had been adhered to, and to assess whether those who were guilty of improper conduct faced consequences.
The primary responsibility of public officials was to create awareness to develop measures to prevent improper conduct, and to entrench ethical decision making. It was also important to make advice and assistance available when the need arose. Punitive action and sanctions were necessary but were not the ideal way to build ethical conduct. Firmness and fairness were therefore advocated, as it had been pointed out that if the focus was placed on punishment alone, compliance would not be achieved. The aim was not only to ensure compliance, but to move towards ethical decision making. This would mean encouraging colleagues and other public representatives to make the right decisions, because it was the correct thing to do and not because of the avoidance of sanctions.
Views had been expressed for Parliament to provide a platform where experiences on the extent to which the codes had been implemented could be shared. It was hoped that the discussions during the workshop would grant insights into the implementation of the codes and best practices, as well as the challenges facing various institutions and how they could be dealt with.
The possible establishment of an ethics forum that would consider the suggestions emanating from the workshop would be assessed. It would also be considered whether training was necessary and if so, the format such training should take. There was a need to identify best practices and adapt them to specific conditions of various institutions. For example, a code of conduct had been in place in Parliament for 19 years. In all these years, there had been 100% disclosure and a register had been published annually. The public session was available for public scrutiny, and transparency had been identified as a key requirement for the effectiveness of the code.
Many measures had been instituted to assist Members to ensure compliance. The Registrar was able to access the Companies and Intellectual Property Commission (CIPC) records on Members’ directorships, and to guide Members accordingly. A booklet had been designed to assist Members with their recording of gifts. When and where required, written advice was provided to Members, and there had been strict implementation of the codes. Breaches of the code had been investigated and actions had been taken where appropriate. The initiative was meant to complement the work done by Cooperative Governance and Traditional Affairs’ (COGTA’s) ‘back to basics’ campaign that ensured capacity building at the municipal level. The question of ethics and ethical conduct was part of the broader strategy or plan.
It was expected that the workshop would enable participants contribute effectively and also learn in the process.
Co-Chairperson on importance of workshop
The Co-Chairperson reiterated the importance of the workshop for all levels of government to discuss the concerns of the public. The Ethics Committee had a very important role to play in ensuring that the integrity of each institution was guarded. Earning public trust was an important aspect of the roles of public representatives, as members of the public were generally suspicious of politicians.
The focus of the workshop on creating awareness of ethical requirements was important, because not all public representatives were aware of all the requirements to which they conform. It was for this reason that a book had been provided to guide Members on the code of ethical conduct that should be followed. It was also important for Members to work on their personal habits and understand the values taught from a young age.
There was a need for elected representatives to ensure that the public understood the mechanisms needed for ethical conduct, as well as the complaints procedure. The Committee received a lot of complaints, but there was a need for these complaints to be put in writing before being decided upon by the Committee.
It was also important to educate members and councillors on the requirements of the code; to build a culture of ethics within various institutions; to constantly address ethical problems within the institutions -- for example, communicating unacceptable ethical behaviour to Members or council committees; and to assist Members and councillors alike in assessing areas where help may be needed.
It was the responsibility of Members to guide new people that came into the institution on ensuring ethical conduct; to investigate improper behavior; to create a climate of trust within a multi-party committee so that the committee was not used for party political gain. The committee was sworn in by the Chairperson or Speaker, and Members of different political parties had to trust each other to prevent suspicion among Members during committee meetings. Each case should be dealt with on its merit, and a proper ruling should be given afterwards.
NCOP Chairperson on Code of Conduct
Ms Thandi Modise, Chairperson of the National Council of Provinces (NCOP), said that a code of conduct was another way by which a community -- public representatives in this sense -- came together to set standards. Public representatives were more pressured because they represented people. Therefore, their conduct found expression in the way they acted, the things they said, their earnings and the way such earnings were spent.
A time would come when the practice of the Kenyan Parliament would be emulated. The practice was to declare upfront who a person was, what he or she earned and how such earnings were acquired. Nigeria, for instance, had a big burden to eliminate corruption, and President Buhari of Nigeria had therefore come out to declare that amnesty would be granted to any person in and outside government who had earnings of a certain amount of millions if an explanation could be given as to the source of such wealth. This was clearly the aim of the code of conduct. The code of conduct addressed transparency and honesty.
In defining a leader, the first quality should be ‘honesty’, and not ‘vision’. The Parliament represented 454 members of the top society of South Africa. It was important for the public to view their representatives as honest people. However, the instrument guiding ethical conduct must enable Members to be honest.
A lot of discussion had already ensued during the fifth Parliament on the language with which the Code of Conduct was sometimes couched, as it created confusion or gave double meanings. However, the physical conduct of MPs was not the only important matter. MPs should exude patriotism and represent the national interest at all times.
It was also important that in complying with the defined standards of good behaviour, the rights of other people related to public representatives were not trampled upon. Leakages should be curbed with regard to confidential information of public representatives. Those entrusted with the confidential information of Members had to be found trustworthy.
In totality, the workshop was aimed at addressing the above mentioned issues, as well as giving clarifications where necessary. The importance of a consistent system was also emphasized.
Presentation: Code of Ethical Conduct for Members of Parliament
Ms Fazela Mahomed, Registrar of Members’ Interests, said that the code of conduct was part of the rules of Parliament and was not legislative, unlike the code of conduct for councilors, which was shaped into the Act. The code of conduct was based on a system called ‘peer review’. In other words, there was an internal ethics committee, where Members made decisions on the conduct of their peers based on the understanding of their roles. There was therefore a Committee of the Peers, and it included the Chairpersons from the National Assembly and the NCOP. Both houses were represented in the Committee, and the Registrar of Members’ Interests assisted the Committee in implementing the code of conduct.
All elected MPs were positioned to represent the interests of the public. This meant that decisions could only be taken based on the best interests of the public, and not with the intention to make personal gain.
The code of conduct required MPs to be accountable for how they conducted their businesses, and also for them to ensure transparency in the manner in which they carried out their duties. The code also provided guidelines on what was appropriate or not appropriate for public representatives; it promoted the values of the constitution; and was aimed at reducing secrecy with regard to the personal interests of Members.
There were two sections in Parliament -- the public section, and the confidential section. Similarities existed between the code of conduct for Parliament, many of the provincial legislatures, and councils. The code of ethical conduct had been updated in November 2014, resulting in a more comprehensive code.
With regard to categories of disclosures, shares and financial interests were identified as the first category. This was important, as the code of conduct was designed for Members to disclose areas that may cause conflict of interest with their jobs. Other categories of disclosure included remunerated employment outside Parliament; directorships and partnerships; consultancies; sponsorships (especially from political parties); gifts and hospitality; travel paid for by an outside source; benefits (but gifts of a personal nature may not be disclosed); land and property (to prevent conflict of interests); pension income (not contribution); trusts; and encumberances (which included long-term loans and bonds, and should be disclosed in the confidential section of the register). It had been determined that the interests of MPs should be made public, while the interests of their spouses were confidential. However, the interests of spouses or permanent companions and minor children had to be disclosed in the confidential section.
The code of conduct for councillors was similar to that of MPs. The categories of disclosure included shares and securities in any company; membership of a closed corporation; interests in any trust; directorships and partnerships; financial interests in any business undertaken; employment and remuneration; subsidies, grants, and sponsorships by any organization; as well as interests in property and land.
The values that should guide the conduct of Members were outlined (see document). With regard to selflessness as one of the values, it was pointed out that the interests of the public should be accorded greater importance at all times. Objectivity should be based on the values of the parties’ members represented and the constitution, in general.
The ‘conflict of interest rules’ for MPs was thereafter examined. (See document).
The code of conduct for councillors extended beyond ethical principles for councillors. It addressed the way members were expected to conduct themselves, through regular attendance at meetings and so on. (See document).
Prohibited activities for public representatives were outlined. (See document).
The Ethics Committee had a lot of experience in addressing breaches of the code. A distinction had been made between omissions and mistakes, and willful disclosures. One of the rules of disclosure and the implementation of the code was that there must be consistency and fairness. It was important to establish a procedure for the investigation of complaints, rather than leaving such procedures to the discretion of a few members. There were instances where penalties had to be given. For local governments, the Member of the Executive Council (MEC) had the right to remove a Councillor from office. However, the penalties did not allow for MPs to be removed, but provided for sanctions where appropriate.
With regard to the disclosure process, all disclosures were usually received from the Members. Non-disclosures were condoned only when a Member was ill. Registers had also been published for the past 19 years.
Presentation: Ethics framework for Gauteng provincial legislature
Dr Ralph Mgijima, Integrity Commissioner for the Gauteng Provincial Legislature, made the presentation (See document, pages 1 to 11 and 21 to 23).
With regard to the functions of the Integrity Commissioner (IC), it was pointed out that under the scrutiny of registers, measures had been put in place to examine the indebtedness of members with regard to their membership in companies. The measures were put in place to prevent the conflict of interests, rather than punish members. The strong point of the framework of the code of conduct was to ensure prevention of conflict of interests, or to promote the right behaviour towards a conflict of interests.
The Privileges and Ethics Committee in Gauteng had considered case studies in the United Kingdom (UK), but the model of the framework in Gauteng had been adopted from Canada. The Committee had recently embarked on a trip to Canada and it had been discovered that the ICs in Canada were completely independent; they had separate budgets and they dealt purely with conflict of interests. This was unlike Gauteng, where the IC dealt with some aspects of conduct that did not necessarily pertain to conflict of interests. Some of the ICs in Canada were referred to as ‘Conflict of Interest Commissioners’. The common feature of the Canadian model, or conflict of interests regime in Canada, was the presence of independent commissioners, written rules of conduct, disclosure requirements, and advice and a prevention-based approach. The purpose of the approach was to ensure that there was integrity in the system. In Canada, the Ethics Commissioners or Integrity Commissioners gave direct reports to Parliament through the Speaker and in some matters, they reported to standing committees.
With regard to the fundamental areas of review in the code of conduct, it was pointed out that the Committee in Gauteng had waived the amount of shareholding, as none of the listed amounts could lead to a conflict of interest. An attempt was being made to set a limit that would be linked to the salaries of MPs or the size of the companies where shares were held. If the new code was adopted, there would be no listing of shares held by MPs in companies.
A threshold had also been placed on gifts. Previously, gifts were said to be declared if they were above R500. However, a new model had been adopted to link the amount of the gift to the salaries of the legislature as a percentage, in order to ensure a meaningful declaration of gifts.
The issues that informed the review of the code were outlined, and other points raised on the proposed Gauteng ethics sector forum and an Integrity Act were highlighted. (See document).
Presentation: Code of Ethics for Eastern Cape Province
Ms Noxolo Kiviet, Speaker of the Eastern Cape Legislature, made the presentation. The issue of ethics had been discussed extensively at the last provincial speakers’ forum where the provinces, districts and metros had converged. The literal meaning of ethics, as found in the dictionary, was referred to. Ethics was defined as ‘a system of moral principles that governed a behaviour’. It was a system by which many organisations and companies set acceptable standards of behaviour in their code of ethics.
The code of ethics provided guidance on what behaviour was expected from people. The essence of such a code was for people to do the right thing, whether or not they were being monitored.
The Eastern Cape Province had a code in terms of the powers, privileges, and the immunities of Parliament and the Provincial Legislatures Act. The code of conduct was operationalised through rules. It was a step-by-step document that outlined what had to be done in the event of a contravention of the code.
A Committee was established through the House. The Committee functioned as an Ethics Committee and it was established in terms of the adopted code of ethics for members. It was a three-member committee chaired by the Deputy Speaker, who was assisted by two other members -- one whip from the majority party and another whip from the opposition party.
The Committee of Enquiry into contempt was expected to implement the code of ethics and to develop standards for ethical conduct. It also served as an advisory consultative body both to members and the leadership, concerning the implementation of the code. It reviewed the code regularly, based on various experiences.
Training was conducted at the beginning of the term, and as part of the induction, members were trained on the code. Other training and workshops were organised at intervals in the course of the term, to constantly remind members of the provisions of the code. One of such workshops had been conducted in June for the leaders of all political parties and the leadership of the institutions.
The Committee performed the functions required in terms of sections 12 and 25 of the Privileges Act.
Matters emanating from the house were referred to the Committee to carry out investigations and deal with them as appropriate. It also performed other functions and exercised powers reasonably assigned to it by the house.
The Speaker could refer any matter in terms of the code of ethics, for investigation. The Committee had to report back to the house once a year, besides its periodic findings and outcomes on other matters that it had to deal with. The annual report could influence the review of the code itself.
With regard to the modus operandi of the Committee, it considered complaints and matters of contravention of the code. Once a matter was referred, it would meet to scrutinise the issue. A notice of invitation would be sent to the relevant members in writing, and they would be granted an opportunity to give explanations. Such notice had to be accompanied by detailed charges. The Committee had to consider the evidence based on merit. Once a member was found guilty, the Committee would recommend a sanction, guided by the code.
A report would be compiled and tabled in the house. The report had to be tabled by the Chairperson, and could be considered with or without debate, depending on the severity of the matter. The house may then confirm or reject the report, or send the report back to the Committee if issues were discovered not to have been dealt with in the appropriate manner. However, if the report was confirmed, it would be implemented by the Speaker.
Inconsistencies in the way various municipalities handled some issues in the code had been identified at the last Speakers’ forum. Some municipalities had a standing committee and some did not. Those who did not have standing committees elected or appointed a committee only when a matter arose for investigation.
The issue of regulations and the Act was also discussed at the forum, in terms of the Municipal Finance Management Act (MFMA), which indicated that a member may not do business with the State. There was no provision in law to that effect. The only available provision provided that a member had to declare if he or she engaged in business with the State. There was therefore a loophole that could lead to a difficulty in implementing the code in local governments. It was important to ensure a uniform interpretation of the law, even if it meant a review of the legislation.
A programme had been agreed upon to clarify the issues raised in respect of local governments before the next local government elections. Another programme would be drawn up immediately after the elections, to assist in the uniform implementation of the code. Other training would also be conducted during and after the elections, to make sure that members were proactive in their dealings.
She concluded by agreeing with the previous speakers that the trust expected from the public had to be earned by public representatives.
Presentation: KwaZulu-Natal Province
Mr Logie Naidoo, Speaker of the eThekwini District Municipality, KwaZulu-Natal, made the presentation.
Schedule 1 of the Municipal Systems Act clearly defined the code of conduct for Councillors. This code had been adopted as the guideline for the conduct of Councillors. The code covered areas of general conduct for Councillors, attendance of meetings, sanctions for not attending meetings, disclosure of interests, personal gain, full-time Councillors who may not take on other work as opposed to part-time Councillors, rewards, gifts, favours, establishment of the gift register, monitoring of entries into the register, conduct of Councillors in respect of not being permitted to intervene in administrative arenas, and not using council property for personal interests.
The duty of the Chairperson or Speaker of the Council, in terms of the code of conduct, was clearly outlined. Particular reference was made to the powers of the Speaker to authorize the investigation on a matter where a breach of conduct had ensued; engaging a process of hearing; allowing councillors to respond to allegations; and reporting the matter in full to the Council. Clauses 1, 2, 3a and 4 provided guidance in terms of a breach of the code. Clauses 6 and 7 allowed a concluded matter to be referred to the MEC for additional sanctions, where necessary. The code also provided for codes of conduct for traditional leaders that sat on the Council.
This general code had been used thus far. However, a bye-law had been passed and adopted by the municipal council. This bye-law had been published in the provincial gazette. It dealt specifically with the issue of ethics and conduct of councillors. Chapter 4 of the code of conduct made detailed provision for the conduct of Councillors at meetings, the declaration of interests, as well as other matters earlier outlined by the Registrar, with regard to the role of the speakers, the role of the whip, and the interpretation of the bye-laws.
The code of conduct was monitored on a monthly basis. Attendance of Councillors at every standing committee meeting or any other meeting they had been elected to, was also monitored. Councillors who were irregular in their attendance were called to the office of the Speaker, and then served with letters. A report was provided to the ethics committee from time to time. A multi-party ethics committee had been established to deal with matters of this nature. The Speaker conducted investigations, provided reports to the ethics committee, who would then conduct a prosecution in respect of any of the breaches, and recommend the kind of sanction that should be imposed to the Speaker, or report to the Council.
A monthly report was also produced on Councillors who might be in arrears in the payment of their service charges. A report was usually produced for members who in arrears for more than 30 days. However, reports on arrears or more than 90 days were usually made to the Ethics Committee
Leave of absence applications were also monitored, as it had been discovered that these were being used as a mechanism for not attending meetings. Councillors who exceeded the regular non-attendance at meetings were monitored.
The Ethics Committee also had a multi-party Speaker and party whips, and was responsible for preparing for every council meeting. It was a forum to discuss the conduct of Councillors at meetings. The ruling party also had its own forum, where all its committee whips had meetings to discuss some of these issues. On more than one occasion, Councillors had been sent out of the meeting. The rules were very clear. Once the Speaker made a ruling, it was final and binding. No one could attempt a point of order or point of information based on the ruling of a Speaker. This rule had been used strictly to manage debates, to enable Councillors conduct themselves with dignity and decorum, and to uphold the integrity of the house.
The municipality had a good working relationship with the provincial government, and had set up a forum known as the eThekwini speakers’ forum, where all speakers of all the district developing municipalities met under the leadership of the Speaker of the KZN legislature, to exchange ideas.
Council meetings were held on a monthly basis, while the executive committee meeting was held on a weekly basis. The provisions of the code with regard to the conduct of Councillors at meetings, was read out. The code also provided that the Speaker must be heard without interruption; Councillors were not to disturb proceedings; and apart from the Speaker, no Councillor was allowed to interrupt another Councilor except to call attention to a point of order, or point of explanation. Notices of motions and questions had to be submitted in writing by the Councillors ten working days in advance of any Council meeting. The notice of motion was then put to the house for debate. The questions, on the other hand, were responded to by the Chairperson of the Committee.
The Chairperson asked how challenges that arose from time to time were handled.
Mr Naidoo replied that some serious breaches had taken place in the past. Three councillors had been identified by the Auditor General as having engaged in business with the council. The value and nature of the contract had been fully investigated. The matter was thereafter referred to the Ethics Committee, where the Councillors were interviewed and sanctions had been meted out. No other issue had arisen on the involvement of Councillors doing business with the Council, since the first round of investigations on these three Councillors.
All councillors had to declare their interests in companies, cooperatives, and so on. A declaration form had to be filled in, and that form was filed in the office of the Speaker. Councillors were constantly reminded to update the declaration forms, in the event of any changes in their shareholding status in companies. There was also a gift register, where councillors could declare any gifts they had received. This was also monitored from time to time.
Mr William Mopena, Chairperson of the Ethics Committee, KZN, said that most municipalities had ethics committees. The committees functioned as section 79 committees. They met on monthly basis, and worked in tandem with the code of conduct. In most cases, municipalities had a ‘work plan’ with indicators in terms of their performance. The only concern was the issue of separation of powers in terms of the code vis a vis the Speaker, because this was not clear. The Speaker had to refer a matter and if not, such matter would not go to the ethics committee. The issue of doing business had also been covered under the Systems Act, item 6.4, where it clearly provided that a councillor should not do business with any municipality in terms of the COGTA.
The issue of declarations was also a concern, because the Systems Act said that a municipal member must submit declaration of interest forms within 90 days, which meant that the administration got involved in the political side of the declaration forms. The political side should probably be separated from the administrative side in the Systems Act.
Mr Tim Jeebodh, Speaker: uThukela District Municipality, KZN, said that there was no coordinated approach to the issue of ethics. This was because the Speakers’ forum had not functioned for about two years.
With regard to the issue of conduct, all municipalities had rules of order that included conduct. However, a distinction should be made between conduct and ethics. The issue of ethics had not been properly dealt with, and this explained the public disdain towards elected officials. The models of Canada, Australia, New Zealand and UK were very functional models, in which ethics played a big part in the functionality of the public service. Anyone that contravened such rules was summarily relieved of his or her job or asked to resign, not minding the sphere of public service where such person served.
Municipalities were the hotspots, because it was left to municipalities to decide what would be included in the rules of order. However, ethics did not play a major part in municipalities. There was therefore a higher capacity for things to go wrong at the municipal level, especially because there was little or no distinction between the administration and political oversight.
The Public Service Integrity Management Framework was applicable to every public official, from the President to the lowest Councillor at the level 2 municipality. The Act was also binding, and it had the force of law to refer to courts and remove officials.
Mr Thokozani Msweli, Speaker at iLembe District Municipality, KZN, concurred with Mr Nadioo on the way the issue of ethics had been dealt with in terms of the code of conduct. The municipality had adopted the code of conduct in schedule 1 of the Municipal Systems Act, as its standard rules of order. This was part of the agenda of portfolio committee and council meetings. The issue of the declaration of interests was one of the standing items. However, local municipalities had not made any serious effort to apply the codes practically, due to various reasons. One of such reasons was conflict of interests. The question of capacity to handle such matters was also related to conflict of interests, as there were issues of collusion of political and business interests of councillors, as well as the intersection between the administrative office and business interests within the municipality.
The issue of uniformity and coordination had to be considered. It had been suggested that the Gauteng approach should be adopted in respect to the establishment of sector forums in all provinces, and in replicating the privileges and ethics committee throughout all provinces.
ILembe district had had experience of a breach of conduct. A special committee had been established in terms of schedule 1, item 14, sub-item 1b, to deal with the matter. The schedule did not, however, provide a conducive circumstance that would lead to the mandatory establishment of an ethics committee. Instead, the code of conduct referred to a ‘special committee’ to react or respond to a particular matter that was reported. Little or no focus had been placed on item 13, sub-item 1, which dealt with the duties of chairpersons of municipal councils. More focus should be placed on item 13. Capacity and conducive conditions should also be created. In essence, the issue of separation of powers had to be dealt with, as there was no distinct separation of powers at the local level. A capacity building programme should be created for the Speakers to rely more on item 13, thereby giving them power to intervene in matters.
Ms D Rantho (ANC) mentioned that members of the Ethics Committee in the National Parliament were sworn in for confidentiality. She wanted to know if Gauteng had an independent or neutral person, who was not a Member of Parliament, who was responsible for dealing with a breach of the code of conduct, and what the implications were of the Speaker being the only one that could deal with a matter that was reported, instead of involving other member.
The issue of the various names for the ethics committee in various provinces was raised. The Eastern Cape referred to it as the ‘Ethics Committee’, while Gauteng called it the ‘Ethics and Privileges Committee’. In the National Assembly, it was called the ‘Ethics and Members’ Interests Committee’.
There was a need for provincial legislatures to extend the issue of ethics to the local municipalities.
Mr Emerald Nzimande, from Harry Gwala District Municipality, asked for clarification on who would authorise an investigation in a situation where the Speaker himself had breached the code of conduct, since the schedule did not make any provisions to that effect. He also wanted to know if the Speaker in a municipality that had an Ethics Committee, had the option to authorize an investigation in terms of item 13, or refer a matter to the Ethics Committee.
Ms Alice Mthembu, Speaker of uThungulu District Municipality, wanted to know if a blanket approach could be used for the establishment of an ethics committee for all municipalities. There was a need to strengthen the Speakers’ forum in all spheres of the legislature, local government, and the national sphere.
Ms E Coleman (ANC) wanted to know why the IC in the Gauteng legislature could not serve more than two terms, and if any measures had been put in place for the IC to transfer knowledge at his exit. She asked for clarity on part (b) of item 6 of the code, that spoke to remunerated employment outside the legislature being allowed when such employment was compatible with a member’s function as a public representative.
Mr Deon de Vos, Speaker of the Sarah Baartman District Municipality, Eastern Cape, emphasised the need for municipalities to understand that their codes of conduct were captured within the Act. The code gave specific tasks to the Speaker.
Concern was raised on the establishment of structures, since municipalities differed from each other. There were municipalities that had only seven councillors. This did not mean that such municipalities could not establish an ethics committee. However, there was a need to understand the context of local governments. It was also important to ensure that ethical conduct existed, and was implemented in all municipalities.
Mr Horatio Hendricks, Chairperson: Municipal Public Accounts Committee (MPAC), Sarah Baartman District Municpality, wanted to know where consequences were stipulated for those in breach of the code; if such consequences were available for public scrutiny; what code of conduct was referred to by the Registrar, as the code of conduct under consideration was not legislated and was developed by peers; if the meetings of the Gauteng committee were open to the public, and if the emanating reports were publicised.
Mr N Matiase (EFF) said the key issue at hand was the extent to which the formulated codes of conduct could be enforced in a way that no space was left for impunity, and no one was exempted in the execution of the rules.
Ms Bulewa Tunyiswa, Deputy Speaker of the Eastern Cape Legislature, placed emphasis on the definition of ethics and the role of the Speaker. It was pointed out that identified gaps should be brought to the attention of the relevant parties. The role of the Registrar was critical in Eastern Cape, and this was based on the importance of confidentiality. Greater emphasis was placed on the preamble and the intentions of the Committee, as opposed to the name of the Committee. This explained the mentioning of the functions of the Committee, as provided for in section 12 of the Powers and Privileges Act.
Response to questions
Dr Mgijima said with regard to the role of the Speaker in dealing with ethical issues, two breaches had been dealt with in his presentation – the breach of ethics, and the breach of privileges and contempt. The Gauteng rules stated that if the Speaker was under the impression that a breach of contempt had occurred, he or she could act on it, or refer it to the committee. Such matter would be referred to the Privileges and Ethics Committee that handled privileges and ethics matters. It had been agreed that it may not be a good idea to put privileges and ethics together, but the IC was had not been in a position to decide.
The reason why the IC could not serve more than two terms was not also in the jurisdiction of the IC to answer. The constitution provided limited terms for the various people that served in all institutions that protected the country’s democracy. They could not serve longer than two terms. This included chapter 9 institutions. The major concern was not necessarily the leadership of the institutions, but rather to ensure that institutional memory was not lost, notwithstanding the change of leadership.
With regard to the publicity of meetings, he said that members of the committee in Gauteng were also sworn in to confidentiality. The rules, of which the code of conduct was part of, provided for cases of confidentiality, not only for the ethics committee, but for all the other committees in the legislature. However, the resolutions of the house were not confidential. It was also being proposed that after a matter had been resolved, the report of the IC should be made public.
Ms Mahomed made a distinction between the operations of a Parliamentary committee and the Gauteng legislature. Parliament had a registrar who served the Committee. The Committee made the final decisions. The registrar was an employee of Parliament, and was appointed by the presiding officers of the committee. The registrar had no independent powers, unlike the IC, who had some level of independent powers. Different codes also existed for Parliament and the legislature. There was confidentiality in the process of investigation on any matter, but the final decisions of the Committee or the outcome had to be publicised, so that the public could gain confidence in the work of the Committee.
Ms Coleman was not of the opinion that the IC was part of a chapter 9 institution. She wanted to know if mechanisms could be put in place for the IC to remain in office for a while for the purpose of transferring skills and knowledge to a new person at the end of his term.
The Chairperson said that the debate on institutional memory and term limits had not been conclusive.
The issues raised in the workshop were summarised. They included the possibility of constant meetings among public representatives through various forums to discuss issues and exchange ideas that would result in progress at the national, provincial and municipal level; coordination and the need to ensure synergy in places where no ethics committee existed or where ethical issues were never discussed; filling of gaps at the local level; strengthening of laws and identifying the gaps in the laws; interventions needed at the local government level; the separation of powers, especially in municipalities; and the issue of accountability with respect to ethics and ethical conduct.
Two more workshops would be organized for various provinces and municipalities. The processes would be clarified with the Registrar, especially with regard to the way forward after the third workshop.
The meeting was adjourned.
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