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PORTFOLIO COMMITTEE ON PUBLIC SERVICE AND ADMINISTRATION
17 NOVEMBER 1999
COMMITTEE REPORT No11 OF PUBLIC PROTECTOR
Documents handed out:
Draft Committee Report: Public Protector Report on the Investigation of Allegations of Nepotism in Government (appended)
The chairperson read the draft line by line for committee members and pointed out some important aspects. The report was accepted.
Report of the Portfolio Committee on Public Service and Administration on the Report of the Public Protector on the Investigation of Allegations of Nepotism in Government, Report No. 11 (Special Report) [RP98-99], referred to the Committee on 10 September 1999.
The Committee, having considered tile Report referred to it, begs to report as follows:
In October 1997 the National Party (as it then was, "NP") issued a series of three press statements on the subject of "nepotism in government". The second of the three press statements reflected the contents of a Notice of Motion that was to be tabled in the National Assembly.
The notice of motion concluded as follows:
"[That the House] Request the Public Protector to investigate the extent of new senior appointments since May 1994 that have family connection in political parties, Parliament and/or the Cabinet. Such an investigation should look comprehensively at all three levels of government, as well as parastatals, to ascertain the extent of this massive problem."
On 29 October, the Executive Director of the NP, Mr Renier Schoeman NP, wrote to the Public Protector, enclosing the motion and press releases "for [his] urgent attention."
The Public Protector decided to investigate and completed his Report on the Investigation of Allegations of Nepotism in Government, Report No. 11 (Special Report) on 15 April 1999 and tabled it in Parliament on 26 April. The Report was referred to the Committee on 10 September.
2. Briefing by the Public Protector
(a) Committee resolution
The Committee resolved to request a briefing from the Public Protector on the Report referred to it, and the briefing took place on 27 October. In addition to a briefing on the Report, the Committee requested the Public Protector to address two further issues:
(1) A reflection on the existing measures and controls aimed at preventing nepotism, their adequacy and the extent to which they have been implemented/observed; and
(2) An indication of the progress made in respect of the implementation of the recommendations made in his Report (pages 40-41 of the Report).
(b) Briefing on the Report
In briefing the Committee, the Public Protector, Advocate Selby Baqwa, said the Report was prompted by a complaint lodged by a political party which consisted of "fairly general and unsubstantiated allegations. Certain examples of family connections were merely quoted and no specific mention was made of any evidence of favouritism or impropriety."
Advocate Baqwa indicated however that nepotism, which he defined as "favouritism shown to relatives or friends in conferring offices or privileges," fell under the broad grouping of malpractices that is commonly referred to as corruption. In addition, nepotism was clearly "improper conduct" and entailed the receipt of an "improper advantage", and therefore fell within his remit in terms of the Constitution and the Public Protector Act.
With reference to his specific findings in respect of the twenty instances of alleged nepotism, the Public Protector said that he "could not find even a single instance where such allegation could be substantiated."
At the briefing, Advocate Baqwa expressed his concern about the "tendency of some Members of Parliament and political parties to lodge complaints that consist of vague allegations and unsubstantiated rumours and thereafter not to cooperate by providing the details or substance for such complaints, even when specifically requested to do so."
The Public Protector said that members should be aware of the implications of making allegations. There is no recourse for people who are investigated as a result of allegations made to the Public
Protector, in terms of their professional reputation. There is a need for allegations to be at least partially substantiated in terms of a "preliminary verification process
Advocate Baqwa conceded however that he had a further duty - in situations where there might be systemic, structural or legislative weaknesses within public administration - to assist government by making recommendations to remedy whatever defects there may be. If the allegations investigated for the purposes of Report No. 11, for example, were substantiated by the subsequent investigation, the general spread of the allegations might well lend credence to the suggestion that a broader, systemic problem existed. However, since no nepotism was found in any of the cases investigated, he concluded that "this particular aspect of corruption cannot be said to be endemic in the South African public administration."
(c) Lessons learned
Advocate Baqwa offered three lessons emanating from his findings in this investigation:
1. The mere fact that blood relations, spouses or siblings are holding positions of employment in government or public administration is not necessarily a manifestation of nepotism.
2. Conversely, the fact that there was no nepotism in the twenty cases investigated does mean that such malpractice does not occur.
3. Members of the public and Members of Parliament ought not to "cry wolf" by reporting cases without a preliminary verification process to establish whether what appears to be a malpractice is indeed so.
(d) Measures and controls to prevent nepotism
(1) The Code of Conduct for Public Servants
The Code, contained in Chapter 2 of the Public Service Regulations, 1999, contains a provision
(Part C.3.3) that an employee should refrain from favouring relatives and friends in work-related activities and never abuse his or her authority. A breach of the Code is a disciplinary offence and may be dealt with in terms of the Public Service Disciplinary Code and Procedures.
The Public Protector argued however that this provision is essentially reactive and that all government agencies should in addition take internal proactive steps, for example, by imposing a duty to disclose a family relationship on both an applicant for a position or promotion and the person who controls appointment or promotion. In addition to a duty of disclosure, relatives and friends of interviewees should be required to recuse themselves from the interview panel (already contained in the Code of Conduct, Part C.4.6).
Two principles may be extracted:
(aa) No person should be employed in a department or unit which results in the existence of a direct subordinate-superior relationship between relatives; and
(bb) No two persons of the same family should hold positions in which one of them is directly responsible with regard to the fiscal and personnel status of the other.
The matter, however, is not that simple. The circumstances of each case must be taken into account, especially since the Constitution prohibits discrimination against any person. Should a properly qualified person be excluded from being considered merely on the basis of an applicant being related to a more senior official or a member of the Executive, such applicant would suffer unfair discrimination. That is why the relationship should be disclosed upfront, in the interests of transparency and to pre-empt any negative inferences after the appointment has been made.
Advocate Baqwa therefore did not think it would be reasonable to impose blanket exclusion on family members of public representatives or senior public servants from pursuing a career in the public service. Equity or fairness should be the main principle in determining the feasibility of an appointment (with reference to the circumstances of a particular case), provided that there is no nexus (direct link) between a family relationship and the appointment or promotion.
(2) The Executive Members' Ethics Act, 1998
This Act provides that the President must, after consultation with Parliament, publish a code of ethics prescribing standards and rules aimed at promoting open, democratic and accountable government, with which Cabinet members, Deputy Ministers, Premiers end MECs must comply in performing their official responsibilities.
The provision must include provisions prohibiting executive members from -
exposing themselves to any situation involving a risk of conflict between their official responsibilities and their private interests; and
acting in a way that may compromise the credibility or the integrity of their office or of the government.
The Act also requires the Public Protector to investigate alleged breaches of the code on receipt of a complaint. Reporting is to the President or the Premier in a province, who must then submit the report to the National Assembly or provincial legislature. When it is alleged that a Premier breached the code, the Public Protector reports to the President who submits the report to the National Council of Provinces.
On this aspect, Advocate Baqwa also expressed the need for full understanding of these provisions, especially when such matters are placed before Parliament or one of the legislatures. A mature approach to matters of discipline and conduct enhances democracy and accountability. On the other hand, should those institutions to which the members of the Executive are accountable forsake their responsibility to hold fellow members accountable for their actions merely because the guilty person belongs to the party which occupies most seats in the house concerned, the public interest would suffer and democracy would be betrayed.
(3) Local Government Transition Act, 1993
Schedule 7 to this Act contains a Code of Conduct for Councillors. The Code prohibits councillors from influencing or attempting to influence the council of which he or she is a member in its consideration of any decision on any matter serving before it so as to gain some direct or indirect benefit, whether in money or otherwise, for himself or herself or any other person to whom he or she is related or any other person with whom he or she is associated. A contravention of or failure to comply with the Code renders a councillor guilty of misconduct.
The Municipal Structures Act, 1998 also contains a Code of Conduct pertaining to councillors. In terms of this Code, a councillor may not use the position or privileges of a councillor, or confidential information obtained as a councillor, for private gain or to improperly benefit another person.
No uniformity currently exists in the conditions of employment of officials employed at local government level. No uniform code exists for such employees either. Such a Code should be put in place.
(e) Implementation of recommendations
Advocate Baqwa noted that subsequent to the tabling of Report No. 11 he has tabled Report No. 12, the Report on the Investigation of a Public Statement made by the
Premier of Mpumalanga. In this Report he noted that no indication had been given as to when the Code of Conduct required in terms of the Executive Members' Ethics Act, and he reiterated his recommendation that Parliament and the Office of the President attend to the finalisation of a code of ethics as a matter of urgency.
(f) Public Protector's concluding remarks
(1) As far as public servants in general are concerned, adequate measures are in place to address the issue of nepotism.
(2) In respect of executive Members, the delay in the finalisation of a code of ethics is a matter of serious concern. The extent to which such a code will be an effective measure will depend on the visible commitment to proper governance by the National Assembly, NCOP and Provincial Legislatures.
(3) There is a need for a uniform code of conduct for officials employed by local governments. Provision is only currently made for a Code of Conduct for Councillors.
(4) MECs responsible for local government should conduct an in-depth investigation of these issues of accountability and ethical behaviour pertaining to local governments In order to develop a national standard of conformity for all public servants.
3. Remarks of the Deputy Chairperson of Committees
Dr Kisten Rajoo, Deputy Chairperson of Committees and a presiding officer in the National Assembly, welcomed the Public Protector to Parliament and expressed regret that the promised quadrupling of the Public Protector's budget did not materialise. He said that the work of the Public Protector was very important and should be publicised more widely - at the moment the Public Protector had a low profile, and was currently "a man of mystery"
4. Views of political parties in the Committee
The Chair allowed members of the Committee to put forward the views of their parties on this matter, towards attaining a consensus view on he Report and the issue of nepotism more broadly.
Mr Schoeman, who had initially lodged the complaint with the Public Protector, said that nepotism was a serious matter and that I: must be dealt with appropriately. It was especially important for state institutions to be free of nepotism.
The NNP supported the recommendations of the Public Protector. Mr Schoeman argued, however, that the Public Protector takes a narrow approach in restricting his inquiry to the specific cases referred. He has a duty to investigate systemic weaknesses and the NNP was in favour of more resources for the Public Protector to allow him to carry out broader investigation of this nature.
The NP in citing examples was not giving facts and details but rather was attempting to demonstrate a pattern of political advantages to family members, in support of an already widespread perception regarding nepotism in government. It sought a finding on this issue in particular. Failing that, the NNP would support any measures proposed to deal with nepotism in an adequate way.
Mr Van Jaarsveld, also of the NNP, added that the original idea was to set an investigation in motion to address the party's concerns regarding perceptions of nepotism, since it has been demonstrated by the Transparency International. rankings amongst other instruments that perceptions of bad governance may impact more broadly on the country as a whole.
The NNP has achieved its coal in that it has drawn attention to the issue and an investigation has taken place. To that extent a very good purpose was served. The Committee should build on the work of the Public Protector, to address these perceptions and to work towards a public service that has credibility.
Mr Sikakane expressed the ANC's regret that the scarce resources of the Public Protector had to be expended in pursuing this particular investigation, which in the ANC's view constituted a misuse of the scarce resources of the Public Protector for party-political ends.
The fact that the Public Protector found no evidence of nepotism in all twenty cases investigated was a clear indication that the referral of this matter to the Public Protector was mere politicking. Parliament should take steps to prevent this kind of abuse in future.
Mr Grobler noted that there was a Code of Conduct for Councillors but not local government employees. The DP was in favour of a speedy publication of a Code of Ethics in terms of the Executive Members Ethics Act. The Public Protector needed to get the public service to deliver, and the DP supported an increase in funding for the Public Protector. The DP felt that prevention was better than cure, and that systems should be in place to prevent nepotism.
The Public Protector as an independent institution needed to look for other sources of funding, as requests to Parliament compromise the integrity of his Office. On a political level, the Public Protector's report should have the effect of dispelling perceptions of nepotism or it is flawed. In this regard it is not the duty of the Committee to protect the Public Protector.
5. Committee findings
(1) The Committee fully endorses the Report of the Public Protector, its findings and recommendations.
(2) The Committee notes that the Public Protector found no nepotism in any of the twenty cases investigated
for the purposes of his Report and that he concluded, based on the broad range of government and public service appointments represented by the cases, that nepotism was not endemic in South Africa.
(3) The Committee takes cognisance of the warning of the Public Protector that the findings of his Report do not provide grounds for complacency on this issue, as the existence of sound selection and employment practices does not necessarily mean that they are adhered to in all cases. Furthermore, such codes and practices are not yet in place for all categories of public representatives and government employees.
(4) The Committee shares the Public Protector's concern regarding the absence, to date, of a code of ethics to be published in terms of the Executive Members Ethics Act, and supports: he Public Protector's proposal regarding the need for the development of a code for local government employees that promotes uniformity for government employees in all three spheres of government.
(5) In respect of the public service, the Committee concurs with the view it is necessary to avoid not only nepotism itself, but the perception of nepotism as well. Consequently situations of direct superior-subordinate relationships between relatives or control over fiscal and personnel status by one relative over another should be avoided.
(6) The Committee endorses the approach of the Public Protector, that the application of the abovementioned principles should be made subject to a thorough scrutiny of each individual case, as a blanket prohibition may result in unfair discrimination contrary to Chapter 2 of the Constitution.
(7) In this context the Committee agrees with the argument put forward by the Public Protector that his Office cannot entertain enquiries of too broad a nature, especially in view of the budgetary constraints pertaining, and gives its support to a requirement that complaints, even those alleging systemic weaknesses, should be as specific as possible and should be subjected to a preliminary verification process by complainants prior to their being lodged with the Office.
(8) The Committee notes in addition that non-executive Members of Parliament and Members of Provincial Legislatures are excluded from the operation of the existing codes, and will be excluded even once a code of ethics has been published in terms of the Executive Members Ethics Act. A Code of Conduct in Regard to Financial Interests is however in place for Members of Parliament.
The Committee therefore recommends as follows:
(a) That the President give effect to the provisions of section 2 of the Executive Members' Ethics Act, 1998 by publishing a Code of Ethics as envisaged in that section, and that such Code be gazetted by 1 June
(b) That the MinMEC on provincial and local government commence a process, together with local government stakeholders, and seeking the advice of the Public Service Commission should they deem it necessary, towards the development of a uniform Code of Conduct for local government employees, aligned as far as is practicable to the Code of Conduct for Public Servants, and that such code be published by 1 January 2001;
(c) That each executing authority disclose (supplementary to the reporting requirements in terms of Part III.J.6 of the Public Service Regulations) in the Annual Report of the department or departments for which she or he is responsible any instances where an employee of the department -
(i) is in a direct subordinate-superior relationship with a relative; or
(ii) has control over the fiscal and personnel status of a relative;
in the interests of transparency and accountability.
(d) That the Joint Rules Committee of Parliament give serious consideration to the development of a Code of Conduct for Members of Parliament that would incorporate measures aimed at preventing nepotism and favouritism, amongst other measures;
(e) That the Speakers of the Provincial Legislatures, through the appropriate structures within those legislatures, give serious consideration to the development of a code along similar lines, and the incorporation of a Code of Conduct in regard to Members' Interests in such code.
Report to be considered.