Presentation to the CDW cluster by Mr Themba

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Transcript Presentation to the CDW cluster by Mr Themba

10th 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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Outline of Presentation
• 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)
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• Conclusion(27-8)
Nation’s Resounding No To Corruption in
Twitter Case
• 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 is Part of a Broader National
Integrity Framework
• 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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Constitutional Mandate
•
•
•
•
•
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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Six(6) Key Mandate Areas
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
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Housing Protection Measures Act 95 of 1998.
Other Mandate Areas
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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Institutions Within Jurisdiction
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
• 40 National Depts
Provincial Government
• 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)
Local government
Other Organs of State/
Public Bodies
• 6 Metropolitan
• Statutory Bodies
Municipalities
• 231 Local
Municipalities
• 47 district
Municipalities
•Institutions
performing a public
function
• 533 Public Entities
•9 Institutions/
commissions/
Authorities
•21 Universities
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Investigation/ Intervention Triggers
Investigation in terms
of EMEA only from
Investigation in
terms of PPA and
other statutes
President/ Legislature/
Premier
Complaints/
Requests/Repor
ts to the PP
Anyone (does
not need to be
victim)
Own
initiative
National
Assembly/MPL/
Member of the
Executive
Individual/ groups/
organisation/
political parties/
civil society/
communities
Service
delivery
failures
undue delay
Systemic
deficiencies/
Trends from
existing
complaints
Conduct
failures
Information in
public Domain,
including print
and electronic
media
corruption
fraud
service
delayed or
service
abuse of
resources
denied
violation of
a human
right
Review in terms of Housing
Protection Measures Act
Public debate/ display
of dissatisfaction or
grievances
(e.g. .Local
government protests)
receipt of
improper
advantage
unfair,
capricious or
discourteous
behaviour
improper
enrichment
abuse of power
unethical behaviour
dishonesty
or improper
dealings in
respect of
public
money
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Approach to Investigations?
•
•
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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Approach to Investigations?(cont)
• What happened?
 Proof on a balance of probabilities achieved through
document and explanation requests and interviews or
hearings. Forensic investigation and expert opinions, where
appropriate.
• What Should have happened (Proper)?
 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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Approach to Investigations?(cont)
• 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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•
•
•
•
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Municipal Finance Management Act, 2003
The Constitution – sections 53, 152, 195 Chapt 3 & 7
Local Government: Municipal Structures Act, 1998
Local Government: Municipal Systems Act, 2000
Local Government: Municipal Demarcation Act, 1998
Codes of Conduct for Councillors and Municipal
Employees
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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:
The South African government has
a) Bribery: promise, offering or giving of a benefit 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 lowb) Fraud: actions or behaviour by a public official, income beneficiaries. A large
number of the cases reported
other person or entity that deceive others
involve the fraudulent allocation of
these subsidised houses
into providing a benefit that would not
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
e) Favouritism:
the
provision of services or
resources according to
personal affiliations of a
public official.
f) Nepotism: public officials
ensuring that family
members are appointed
to
public
service
positions or that family
members benefit form
procurement processes
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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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Conclusion
•
•
•
•
•
•
•
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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THANK YOU
www. pprotect.org
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