When ‘acting’ is mere subterfuge

Do you face an ethical dilemma? Do you suspect corruption? If you need help to resolve such issues, write to the Corruption Watch experts at letters@businesstimes.co.za. Mark your letter ‘Dear Corruption Watch’

Dear Corruption Watch,

We read a lot about jobs for pals in the public service. Some of these are “acting appointments” that seem to last forever. I have reason to believe that many are made to circumvent the full hiring process, which opens up these appointments to corruption. Are there limitations to the length of time someone can serve in an acting capacity?— Fulltimer

Dear Full-timer,

You are right to be concerned about the abuse of acting appointments. Although it is no doubt necessary to have acting appointments from time to time, they can easily be abused in at least two ways.

First, as you suggest, they can be used to avoid a full hiring process in order to keep a friend in the position. The process necessary to appoint someone permanently is generally far more rigorous than the process needed to appoint someone in an acting position. Indeed, because acting appointments often have to be made urgently, there is sometimes no formal hiring process at all. A full hiring process could reveal that the person was unqualified for the job, or that there were far more-qualified people available. Appointing someone in an acting post and delaying filling the post permanently to keep that person in the position is a form of corruption. According to the Corruption Act, corruption involves giving any person “gratification” for illegal or dishonest reasons. And the act defines gratification to include “any office, status, honour [or] employment”.

Second, acting positions can be abused by keeping someone in that position because it is easier to remove them. In the public service it is not only difficult to appoint people permanently, but also to remove someone from a permanent position. Restrictions on removal are important to ensure some degree of independence and to prevent interference from political actors. Acting appointments often lack the same protection and can be made and withdrawn at the whim of the responsible officer.

The recent saga concerning the national director of public prosecutions is a good example. After Menzi Simelane was suspended as the national director at the end of 2011, President Jacob Zuma appointed Nomgcobo Jiba in an acting capacity. But when the Constitutional Court confirmed that Simelane had been illegally appointed in October 2012, the president still did not make a permanent appointment. It was only after he was taken to the Constitutional Court that he appointed the current permanent national director at the end of August 2013 — nearly a year after the post became vacant. In court papers, the president himself confirmed that an acting national director lacks the same structural protection — and therefore the same independence — as a permanent appointee.

Many statutes do limit the period that a person may serve in an acting position. The South African National Parks Act, for example, allows an acting CEO to serve for only six months.

Many other statutes place no limit on the length of time that a person may act for, but, importantly, the public service regulations do place a limitation on the period that a person can serve in an acting position, prescribing that an acting post cannot exceed 12 months.

The Senior Management Service Handbook also limits a manager acting as a head of department to six months.

There are no limits on the number of people that may be acting at any one time.