This administration needs to tackle conflict of interest if it is to do better than the last
The failure to separate one’s personal interest from that of the public has brought down many a public office bearer
● Conflict of interest is much spoken about in the context of state capture and allegations of corruption by public office bearers and state officials. Throughout my term as deputy public protector over the past seven years, the most prevalent death knell to many a promising political or public-service career has been the lingering issue of conflict of interest.
The test for determining a conflict of interest is not rocket science. According to the Organisation for Economic Co-operation and Development toolkit for managing conflict of interest in the public sector, a conflict of interest exists where there is an unacceptable possibility of conflict between a public official’s interests as a private citizen (private capacity interests) and their duty as a public official or civil servant (official duty). South African law is aligned to this standard. The Executive Members’ Ethics Act was promulgated to provide for a code of ethics governing the conduct of the members of the cabinet, deputy ministers and MECs. The code provides, among other things, that ministers must act to the satisfaction of the president, in good faith and in the best interests of good governance.
They must also act in all respects in a manner that is consistent with the integrity of their office. The code specifically provides that cabinet ministers may not “expose themselves to any situation involving the risk of a conflict between their official responsibilities and their financial and/or personal interests”. Under “gifts”, the code states that a cabinet minister, premier or MEC may not solicit or accept a gift or benefit that is:
● In return for any benefit received by the member in that member’s official capacity;
● Constitutes improper influence on the member; or
● Constitutes an attempt to influence the member in the performance of the member’s duties.
Where a member, in the course of his or her duties, has received or has been offered a gift with a value of more than R1,000, the member must request permission from the president or premier, as the case may be, to retain or accept the gift.
This does not include travel facilities or hospitality arising from attendance at meals, functions, meetings, cocktail parties, conventions, conferences or similar events attended by the member as part of his/her executive duties.
If permission is granted, the member may retain or accept the gift, but must disclose particulars thereof in the register of executive members’ interests. The register has a public and confidential portion.
Interests that must be disclosed in the register include financial sponsorships, gifts, hospitality benefits, land and immovable property and pensions. Chapter 3 of the executive ethics code, entitled “Conflict of Interest”, makes provision for ministers and MECs to declare any personal or private financial or business interest that a member may have in a matter that is before the cabinet, an executive council or in relation to which the member is required to take a decision as a member of the executive.
Many have argued quite correctly that the flexible aspect — which allows one to receive and declare wantonly — is probably why many members of the executive and other public officials may run into trouble. Service providers in the departments they run are more than willing to quench their thirst with 18-year-old malt whisky and buy the expensive branded garment their salary may not run to.
Parliament has a code of ethical conduct and disclosure of members’ interests for National Assembly and permanent council members. It requires members to “steadfastly avoid placing themselves under any financial or other obligation to any outside individual or organisation where this creates a conflict or potential conflict of interest with his or her role as a member”.
The code of conduct further provides that a member must not accept any reward, benefit or gift from any person or body that creates a direct conflict of financial or business interest for such member or any immediate family that is intended or is an attempt to corruptly influence that member in the exercise of his or her duties or responsibilities as a public representative.
In the private sector, especially the financial and banking sector, the influence of any person or individual entrusted with prominent public functions or control over public resources has been identified as a specific risk area in respect of corruption and money laundering.
The Financial Intelligence Centre Act and other pieces of legislation have created a regulatory framework to, inter alia, manage the risks associated with politically exposed persons — individuals considered to be high risk as they hold positions of power and influence that may be abused for private gain.
The standard to which public office bearers are held appears unfair as even a perception of conflict of interest is frowned upon, but that is the price of holding public office. If you want to make money, go into business. You cannot fish in the same pond without muddying the waters. In fact, section 8 of the Public Administration Management Act prohibits public servants from doing business with the state, and specifically prohibits public servants from being directors of either a public or private company conducting business with the state.
The facts on the ground tell a different story. According to statistics provided by the Parliamentary Monitoring Group (reflecting a report of the department of public service & administration) in February 2017, the National Treasury found 8,495 public service employees registered on the Central Supplier Database (CSD): 5,366 from provinces and 3,129 from national departments. Of the 8,495 public service employees listed, 580 employees were actually conducting business with an organ of state.
At the end of March 2018, the National Treasury found 15,070 public service employees to be registered on the CSD: 10,315 from provinces and 4,755 from national departments. Of the 15,070 public service employees listed, 679 employees were actually conducting business with an organ of state (183 from national departments and 496 from provincial departments).
During a recent meeting with the provincial executive council of the Western Cape, I nudged premier Alan Winde to caution his executive to avoid freebies at all cost. The same advice was given to Limpopo premier Stan Mathabatha. The income of public office bearers in SA is quite decent. Their earnings range from R1.1m for MPs to R2.4m for ministers, R2.8m for the speaker of the National Assembly and an estimated R3.9m for the president.
Of course, these pay cheques come with a lot of sumptuous frills, such as state homes, executive vehicles, bodyguards and air tickets for family, which make senior public service roles in SA more lucrative than the global average. There are many heads of state-owned enterprises and other state organs who earn even more. For example, the National Empowerment Fund CEO earns an estimated R6m — R2m more than the president. They have no reason to find themselves in conflict-of-interest situations involving money.
Although the Zondo commission of inquiry has yet to issue its findings, the stench of the alleged failure to manage conflict of interest by public officials has been laid bare. If it is indeed true that certain officials received sizable cash, crates of whisky or other inappropriate gifts, the writing is on the wall. For the public service to have credibility this cannot be condoned.
The incumbents of public office face competing interests in terms of national, constituency, political and personal interests. Public officials are often entrusted with extensive executive powers and the power to approve the spending of vast sums of public money. In addition, the increased financial value of transactions between the private and public sectors provides ample opportunity for officials to take advantage of their public positions for personal benefit. When public officials are placed in conflict-of-interest situations, opportunities for corruption present themselves.
In spite of SA’s arsenal of legislation and policy guidelines, the Office of the Public Protector has found itself investigating and finding adversely against numerous office bearers and public servants who really ought to have known better. A few examples come to mind, such as Dina Pule’s extending the largesse of the state to a romantic partner, Phosane Mngqibisa. There are many other well known examples of such real or perceived conflicts of interest, such as the Independent Electoral Commission’s lease report in 2013 (in my view one of our best reports on the subject) in which we found the IEC headquarters lease to be irregular, in violation of procurement rules and constituting an unmanaged conflict of interest.
The sixth administration, elected into office in May 2019, has promised to be tough on corruption and maladministration. However, in spite of such commitments, the tide of complaints alleging conflict of interest implicating all levels of the state continues unabated, with allegations of nepotism in appointments, tampering with public procurement and real and perceived conflicts of interest.
Many officials are under the illusion that they simply have to declare a potential conflict of interest and it will magically go away.
In my experience in these cases, if it looks too good to be true or acceptable, don’t do it. With their comfortable income, public officials can afford to buy their own holidays and avoid breaking the law and potentially being hounded from public office by smelly allegations of
The standard to which public office bearers are held appears unfair … but that is the price of holding office
Many are under the illusion that they simply have to declare a potential conflict and it magically goes away
impropriety. Even a whiff of conflict of interest tends to empower one’s political enemies as they run to the public protector or media. Whatever the motives, it usually does not end well for the implicated individual.
My advice to the sixth administration is to manage the scourge of conflict of interest — which was the main weakness of the previous administration and led to reduced public confidence in the government, and certainly led to losses at the ballot box in May 2019.
In fact, the decline in other African countries was exacerbated by a casual approach in managing conflict of interest by public officials, resulting in impunity. This is certainly reason enough for South Africans to vigilantly safeguard institutions supporting democracy and ensure that they do their work without fear, favour or prejudice. The constitution is a guaranteed bulwark against impunity. Don’t mess this up.