10 th NYC GLOBAL PARTNERS SUMMIT:
PUBLIC INTEGRITY: ANTI-CORRUPTION
STRATEGIES, ECONOMIC DEVELOPMENT
AND GOOD GOVERNANCE
WORKSHOP C: CASE STUDIES FROM THE
INTEGRITY FRONT
PUBLIC PROTECTOR OF THE REPUBLIC OF
SOUTH AFRICA
ADV THULI N MADONSELA
7 JUNE 2012
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“The public sector, like all of society and the world, is a mixed bag of humanity. This mixed bag contains persons of little virtue and persons of virtue. The reality is such that the public sector is no more and no less unethical than the rest of society. But because the public sector is constituted of people and institutions that hold public trust...
(it) must and does make that extra effort to maintain the integrity of its internal operations. “
Report on proceedings of the THIRD ANTI-CORRUPTION SUMMIT
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• Introduction
• Place of Public Protector in Socio-legal
Context (4-5)
• Powers, Functions and Approach(6-13)
• Legal and Policy Framework Informing
Local Government Investigations(14-16)
• Typical Integrity Violations in Local
Government Investigations(17-19)
• 5 Case Studies(20-25)
• Lessons Learned(26)
• Conclusion(27-8)
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• A young model recently found out the nation does not take corruption lightly or consider it funny.
• This followed her twitter in which she bragged about bribing a traffic officer saying:“Just got out of a R2 500 fine for going
140 in a 60 zone. R30! (Less than 3 dollars) Bwahahahaha. I
LOVE JMPD”
• Within hours, she had retracted the twit following the public outrage that ensued. She claimed her twit had been a joke.
• Corruption, Watch a recently established anti-corruption civil society agency led the moral backlash than followed.
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• The Public Protector South is national Ombudsman like institution , established under section 181 of the Constitution, which forms part of the national integrity framework.
• Part of a network of oversight and accountability bodies that include the Auditor-General, Public
Service Commission, the Judiciary,
Financial Intelligence Centre, Legislature, media and society.
• Important role in enforcing Democratic values of good governance, and the Rule of Law
And quality of life.
• A civil law innovation in a common law legal system, its enforcement powers are non-judicial.
• Swedish origins (202 years)with national resonance with traditional institutions such as the Venda Makhadzi (see cover page).
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• Established under chapter 9 of the Constitution, the Public Protector has the power under section 182 of the Constitution to strengthen and support constitutional democracy by:
– investigating any conduct in state affairs, or in the public administration in
any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
– to report on that conduct; and
– to take appropriate remedial action.
• Mandate covers all organs of state at national, provincial and local levels, including local government and extends to state owned enterprises, statutory bodies and public institutions. Court decisions are excluded.
• Section 182(4) enjoins the Public Protector to be accessible to all persons and communities
• Supreme Court Judge rank with stringent appointment and impeachment procedures, which include an open Parliamentary process culminating in presidential appointment for a 7 year fixed term following a 60% majority vote in
Parliament and impeachment similar to judiciary.
• Nationals and non-nationals may approach. No need for direct prejudice/injustice>
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The Constitution anticipates mandate expansion through legislation, and legislation passed since establishment 15 years ago has resulted in the Public
Protector being a multiple mandate agency with the following 6 key mandate areas:
• Maladministration and appropriate resolution of dispute the Public
Protector Act 23 of 1994(PPA). The maladministration jurisdiction transcends the classical public complaints investigation and includes investigating without a complaint and redressing public wrongs(Core);
• Enforcement of Executive ethics under by the Executive Members' Ethics
Act of 1998(EMEA) and the Executive Ethics Code (Exclusive):
• Anti-corruption as conferred by the Prevention and Combating of Corrupt
Activities Act 12 of 2004 (PCCAA) read with the PPA(Shared);
• Whistle-blower protection under the Protected Disclosures Act 26 of 2000.
(Shared with the Auditor General and to be named others;
• Regulation of information under the Promotion of Access to Information
Act 2 of 2000;(PAIA) and
• Review of decisions of the Home Builders Registration Council under the
Housing Protection Measures Act 95 of 1998.
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Transversal investigative powers acknowledged in sector specific legislation, including the following:
• Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000;
• National Energy Act 40 of 2004;
• Special Investigation Units and Special Tribunals Act 74 of 1996;
• National Environmental Management Act 108 of 1999;
• Gauteng Petitions Act.
Non-investigative functions conferred by legislation such as:
• Public Finance Management Act 1 of 1999;
• Lotteries Act 57 of 1997;
• National archives and Record Service Act 43 of 1996; and
• Electoral Commission Act 51 of 1996.
•
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The Public Protector’s oversight jurisdiction covers more than 1000 organs of state and government agencies operating at all three levels of government, including local government. Public institutions and bodies performing a public function are also included.
National Government Provincial Government Local government
Other Organs of State/
Public Bodies
• 40 National Depts • Northern Cape (11 Depts)
• North West (11 Depts
• Western Cape (13 Depts)
• Mpumalanga (12 Depts)
• Kwazulu-Natal (11 Depts)
• Gauteng (11 Depts)
• Eastern cape (12 depts)
• Free State (11 Depts)
• Limpopo (11 Depts)
• 6 Metropolitan
Municipalities
• 231 Local
Municipalities
• 47 district
Municipalities
• Statutory Bodies
•Institutions performing a public function
• 533 Public Entities
•9 Institutions/ commissions/
Authorities
•21 Universities
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Investigation in terms of PPA and other statutes
Complaints/
Requests/Repor ts to the PP
Anyone (does not need to be victim )
National
Assembly/MPL/
Member of the
Executive
Individual/ groups/ organisation/ political parties/ civil society/ communities
Investigation in terms of EMEA only from
President/ Legislature/
Premier
Own initiative
Systemic deficiencies/
Trends from existing complaints
Information in public Domain, including print and electronic media
Public debate/ display of dissatisfaction or grievances
(e.g. .Local government protests)
Review in terms of Housing
Protection Measures Act
Service delivery failures undue delay service delayed or service denied violation of a human right abuse of power unfair, capricious or discourteous behaviour
Conduct failures corruption fraud abuse of resources receipt of improper advantage improper enrichment unethical behaviour dishonesty or improper dealings in respect of public money
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• To pronged approach which seeks to verify and remedy maladministration and injustice at hand while acting as a catalyst for change to entrench good governance thus ensuring that organs of state habitually get things right the first time. Promptness and rigor balanced.
•
• Options include case resolution or investigation, latter may be simple, complex and/or systemic. Integrity matters are investigated.
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•
 Proof on a balance of probabilities achieved through document and explanation requests and interviews or hearings. Forensic investigation and expert opinions, where appropriate.
•
 Legal and regulatory framework used as benchmarks for standard that should have been complied with
 Constitutional provisions (NB entitlements and ethical ethical governance provisions), legislation(including Public regulations and Public Service and Treasury
Directives/Guides), policies and other prescripts.
 Sector and international good practice
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• Is there a discrepancy between the two?
 Proper conduct test transcends lawfulness
 Gap evaluated to ascertain if constitutes maladministration, unethical conduct or corruption.
 Room for genuine mistakes.
 Prejudice suffered assessed/quantified.
• What is the remedy
 In service failure civil remedies underpinned by quest to place complainant or victim of maladministration as close as possible to where s/he would have been but for wrongful state action
 In integrity violations disciplinary directives to appropriate authorities and criminal referrals to NPA in terms of section 6 of PPA. Commitment to claw back abused state funds.
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Transversal Integrity Framework Informing Local Government
Investigations
• Properness, maladministration or integrity violations in local government tested against:
 Transversally applicable provisions of the Constitution such as fundamental rights (Bill of Rights, etc) founding values in section 1, principles of public administration in section 195, procurement regulation under section 217 and fiscal prudence guidelines.
 Transversal legislation and directives including-
• Preferential Procurement Policy Framework Act
• Promotion of Access to Information Act
• Promotion of Administrative Justice Act
• the Protected Disclosures Act
• the Prevention and Combating of Corrupt Activities Act
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Specific Integrity Framework Informing Local Government Investigations
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Specific Integrity Framework Informing Local Government Investigations
• Codes of Conduct for Municipal Councillors and Staff Members prescribed by Municipal Systems Act
• The Code of Conduct for Councillors similar to EMEA Code covers, among others integrity issues, such as councillors :
– To perform the functions of office in good faith, honestly and a transparent manner; and at all times act in the best interest of the municipality and in such a way that the credibility and integrity of the municipality are not compromised.
– To disclose personal or private business interests.
– Not allowed to benefit from any contract awarded by the municipality.
• National Anticorruption Strategy also informs investigations
• and relevant international instruments, including UN Convention
Against Corruption and OECD Convention on Combating Bribery of
Foreign Public Officials in International Business, taken into account.
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Typical Integrity Violations Investigated in Local Government
• Over 1000 cases investigated each year with over 180 cases relating to allegations of unethical conduct, financial mismanagement, abuse of power or corruption in Municipalities under PPA, PCCAA and PDA.
• Key issues involve corruption, abuse of power and abuse of resources in procurement management, allocation of social housing, licencing and traffic regulation, employment opportunities, including
Extended Public Work Programmes(EPWP), theft of electricity and municipal billing malpractices as well as enforcement of by-laws
Specific allegations typically involve: a) Bribery : promise, offering or giving of a benefit b) Fraud : actions or behaviour by a public official,
The South African government has invested over ZAR60bn (7,1bn that improperly affects the actions or decisions USD) of public funds into the provision of an estimated 2,8m of a public official.
subsidised housing units for lowincome beneficiaries. A large number of the cases reported other person or entity that deceive others involve the fraudulent allocation of into providing a benefit that would not these subsidised houses normally accrue to the public official, other persons or entity.
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Typical Integrity Violations Investigated in Local Government c) Abuse of power public officials using entrusted power or authority to improperly benefit another public official, person or entity d) Conflict of interest : financial or other private interest or undertaking that could directly or indirectly compromise the performance of a public servant’s duties e) Corruption: Entrusted power used for own benefit or gratification, bearing in mind that corruption is a bilateral integrity violation.
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Typical Integrity Violations Investigated in Local Government
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Case Study 1: Touting for Donations
• The conduct of mayor of a district municipality was investigated following allegations that he had used the municipality’s letter head to write a letter to municipal contract holders requesting donations to his party. It was specifically alleged that the letter had pointed out that his party being in office had resulted in their current contracts and that should it be returned to office, contract opportunities would continue.
• The conduct was found to be unlawful improper and a violation of the code of ethics.
• Remedial action involved a directive to the municipal council to take disciplinary action and educate councillors about the code.
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Case Study 1: “Glimmer of Hope”
• Service delivery failure investigated in response to violent public protest, included allegations of systemic maladministration in procurement, financial and asset management, abuse of state resources and corruption.
• Findings following a systemic investigation and corrective intervention confirmed maladministration, abuse power and of state resources.
• Specific findings included councilor unethical conduct involving theft illegal electricity connection and theft of credit notes.
• Remedial action included disciplinary action and referral to the police for criminal investigation an d prosecution.
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CASE STUDIES : 2 WHISTLE-BLOWER BLOWS BANKING
PIPELINE
• A Whistle-blower (bank employee) who noted anomalous bank deposits with amounts immediately cleared used the Protected Disclosure Act (PDA)to telephone the Public Protector to report suspected fraud.
• An investigation (involving the Auditor General) confirmed that a municipal syndicate was involved in siphoning municipal funds into a private account.
• Matter referred for criminal prosecution combined with disciplinary action. The participants are currently being prosecuted and an asset forfeiture process is under way.
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Case Studies: 4. IT CAN’T BE RIGHT:REMEDYING SELF
INTEREST IN MIDVAAL
• A systemic investigation was conducted into allegations of tender irregularities, unethical conduct by a councilor(personal use of Council resources) and dept collection practices underpinned by selective collections, conflict of interest and asset disposal prejudicial to the municipality and members of the public, mostly poor people, who donated their property to settle their municipal debts.
• Key finding related to impropriety of procurement of the municipality’s (virtually) sole legal provider
(Chairperson of party in control of municipality), whose role included legal advisor, attorney, dept collector and a further finding that the service provider’s conduct constituted a conflict of interest as his company bought property donated to the municipality through him at next to nothing, without transferring such property to the municipality as required.
• Corruption investigation by SIU continues and referral to law society made.
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Case Studies: 5 Against the Rules
• Alleged irregularities, including corrupt practices in Procurement of offices for police headquarters for national and one of the provinces.
• Procurement irregularities confirmed in Public
Protector’s findings. General findings included improper demand management, overpricing.
Conduct of accounting officer found to be unlawful, improper and constituting maladministration.
• Remedial action included disciplinary action and review of contract with a view to cancellation.
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Case Studies: 6 Identity Theft
• Often a service failure investigation reveals corruption, fraud or some other form of conduct failure as the main causal factor
• While investigating the South African Social
Security Agency’s denial of child benefits to a mother, it turned out that she was a victim of identify fraud and a syndicate involved in corrupt practices. The scam was an organized crime operation involving a combination of identity theft transcending four organs of state and a private supermarket.
• Remedial action included disciplinary action and referral for criminal investigation. Recovery of funds also forms part of the package.
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Workload Tackled Through Collaboration with Local
Ombudsman Offices and Integrity Structures
• Over 26 000 cases processed per year comprising 20 000 received and about six thousand carried over from previous year.
• Population of about 50 million people spread over a vast country with 47 district municipalities and 6 metropolitan districts making up 53 districts serviced by 20 offices of the Public Protector backed by toll free line and mobile office outreach services. Staff compliment of over 300 persons.
• Local Ombudsman structures encouraged to be first port of call for complaints.
• Integrity and complaints structures for municipal police included.
• Collaborative work with fellow integrity institutions such as the Auditor General, Hawks,
SIU and PSC employed where deemed appropriate.
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• Local government is at frontline of public service delivery and essential for fulfillment of constitutionally promised quality of life for all people, particularly through delivery on socio-economic rights and Millennium Development
Goals(MDGs);
• Maladministration and corruption key factors derailing service delivery thus delaying fulfillment of constitutional dream, which includes redressing apartheid imbalances, gender inequalities and other inequalities; with peace undermined hence public protests;
• Public Protector’s impact due to sound constitutional foundations, comprehensive legal framework and rule of law ethos, including independence of the judiciary and constitutionally entrenched public accountability;
• Integrity efforts form part of national anti-corruption strategy
• Role of civil society facilitated by an active media enjoying constitutionally entrenched right to freedom of expression, incorporating freedom of the media has been
• Good governance and anticorruption movements, including annual national Good
Governance Week.
• Institutionalization of principles of accountability, integrity and responsiveness in public service anchored in stewardship service ethos.
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“ Let it never be said by future generations that indifference, cynicism or selfishness made us fail to live up to the ideals of humanism which the Nobel
Prize encapsulates … ..
”
President Nelson Mandela. Nobel Peace Prize acceptance speech.
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www. pprotect.org
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