MAJOR TRENDS EMERGING FROM NATIONAL ANTI-CORRUPTION RESEARCH IN THE PUBLIC SERVICE SECTOR

1. MAJOR TRENDS EMERGING FROM NATIONAL ANTI-CORRUPTION RESEARCH IN THE PUBLIC SERVICE SECTOR Presenter: Mr Roderick Davids Director – Professional Ethic Research and Promotion Office of the Public Service Commission Date: 25 November 2009 Venue: Premier Hotel, Pretoria

2. ANTI-CORRUPTION AGENCIES (2002) • A Review of South Africa’s National Anti-Corruption Agencies probed the validity of South Africa establishing one national anti-corruption agency, over the multiplicity of agencies which existed then. • An approach to improved coordination amongst the various agencies was preferred over the single anti-corruption agency approach, by the report. Reasons for not adopting a single agency approach to combating corruption included: • It would add another layer of (ineffective) bureaucracy. • It would direct resources from existing organizations doing anti-corruption work as well as from social development priorities such as health (HIV/AIDS) and education (schools).

3. NATIONAL ANTI-CORRUPTION HOTLINE (2006,2008) • The PSC undertook research into the proliferation of anti-corruption hotlines in the public service, through the Public Service Report on Anti-Corruption Hotlines, published in 2002. • The report followed the proliferation of hotlines pursuant to the First National Anti-Corruption Summit, held in 1999, which called for the establishment of anti-corruption hotlines as a preventative measure against corruption. • The report found, amongst others, that many of the hotlines in the various departments: • Did not have a dedicated budget. • Did not have a proper information system/database of cases and feedback. • Had limited investigative capacity to investigate allegations of corruption.

4. NATIONAL ANTI-CORRUPTION HOTLINE (CONT) • The report therefore recommended the establishment of one National Anti-Corruption Hotline for the Public Service (NACH). This led to the establishment of one National Anti-Corruption Hotline, housed at the Public Service Commission in 2004. Subsequently, the PSC did two evaluations on the NACH. The following findings, inter-alia, were made, based on the two reports, published in 2007 and 2008 respectively. • 2007 Report: • The preferred language of reporting is English (76%) • Between 2004 and 2006, 4182 cases were logged on the Case Management System (CMS) of the NACH. • Feedback was received on the status of 830 cases only.

5. NATIONAL ANTI-CORRUPTION HOTLINE (CONT) • In the 2008 report, (for cases up to March 2008), 4202 cases were referred to departments. • Feedback was received on 1292 cases, which represents 31% out of the 4202 cases referred. • This slow rate of feedback the report points to a lack of investigative capacity by departments. • Fraud and bribery were the most common cases reported (781), followed by mismanagement of government funds (662), and by abuse of government vehicles. • Successes include: • R86 million recovered as a result of investigation of cases reported via the NACH • Officials were found guilty of misconduct: 15 were suspended, 25 given final written warnings and 29 dismissed.

6. NATIONAL ANTI-CORRUPTION HOTLINE (CONT) • The nature of most of the cases reported is the following: • Fraud and corruption; • Mismanagement of government funds; • Abuse of government vehicles; • Procurement irregularities; • Unethical behavior; and • Corruption relating to RDP housing. • Conclusion The NACH is proving to be an important mechanism in the fight against corruption. However, in order to maximize its efficiency, government departments need to improve their investigative capacity in response to allegations from the NACH.

7. MANAGING CONFLICT OF INTERESTS IN THE PUBLIC SERVICE (2009) • The developments and implementation of a conflict of interest policy and/or system is a recent and important initiative in the South African public service. By initiating a conflict of interest system, one does not only seek to promote and implement conflicts of interest standards but essentially, one seeks to promote the perception of integrity in government by preventing conflicts of interest before they occur.

8. MANAGING CONFLICT OF INTERESTS IN THE PUBLIC SERVICE (2009) • Currently, before Cabinet, the following proposals, amongst others, are being considered: • The possibility of spousal declarations; • A “cooling off period” for senior officials, to avoid the “revolving door” syndrome from government to the private sector, and to avoid possible insider trading and other conflicts of interest; • Remunerative work outside the public service by government officials; • Decentralizing the filing of disclosures from the PSC to departments themselves.

9. MANAGING CONFLICT OF INTERESTS IN THE PUBLIC SERVICE (2009 • The rate of compliance has improved since the inception of the FDF as indicated in the following table: • However, despite the increasing trend of compliance the PSC is of the view that only a 100% compliance rate would be acceptable

10. UNDERSTANDING CONFLICTS OF INTEREST • Conflicts of interest can be defined as “a conflict between the public duties and private interests of a public official, in which the public official has private-capacity interests which could improperly influence the performance of his/her official duties and responsibilities” (OECD Guidelines: 2003:24). • This infers that a conflict of interest arises when public officials have to make decisions at work that may affect their private interests. • While conflicts traditionally focused on nepotism, gifts and hospitality in recent years they are more directed on: • a public official having private business interests in the form of partnerships, shareholdings, board membership, investments and government contracts; • a public official leaving to work in a private company or a Chief Executive Officer taking up a key position in a government department with a commercial relationship with his/her former company; and • a public official having affiliations with other organizations (e.g. an official sits on the board of a non-profit organization that receives funding from the official’s department). • The key question about conflicts of interest is whether a public official is in a situation where his/her private interests might improperly influence the way he/she does his/her job .

11. TYPES OF CONFLICTS OF INTEREST • Conflicts of interest are broadly divided into 3 categories, namely- • Perceived - A public official is in a position to appear to be influenced by his/her private interests when doing his/her job. For example - The wife of a senior manager is the owner of a stationary company who is a service provider for the government. • Potential - A public official is in a position where he/she may be influenced in the future by his/her private interests when doing his/her job. For example – The same senior manager is a standing member of the tender committee of the department which may consider a tender from the stationary company of his wife. • Actual - A public official is in a position to be influenced by his/her private interests when doing his/her job. For example – The senior manager is part of the decision to award the tender

12. KEY CONSIDERATION: FUNDAMENTAL PRINCIPLES THAT UNDERLIE A CONFLICTS OF INTEREST SYSTEM • An effective conflict of interest system must be based on sound fundamental principles which talks to what a system should do and should not do. These are the fundamental principles that underlie an effective conflict of interest system namely: • The system / policy should promote both the reality and the perception of integrity in government • The focus should be on prevention, not punishment • The honesty of the majority of public officials must be recognized • Morality should not be regulated • Government money should be saved • Ensure that the public have an interest in the system • The system/ policy must be tailored to the particular nation, society, and culture • It undergirds the essential values of the nation

13. REVIEW OF PROFESSIONAL ETHICS INITIATIVES IN FREE STATE, KWA-ZULU AND LIMPOPO (2006, 2007, 2008) • During the past three years the PSC conducted a study on professional ethics initiatives in the three provinces. The study focused in particular on the policy and legislative requirements for the implementation of anti-corruption initiatives. This included initiatives linked to legislation like the Protected Disclosures Act, act no 26 of 2000; the Promotion of Access to Information Act, act no2 of 2000 and the Promotion of Administrative Justice Act, act no 3 of 2000, amongst others.

14. SUMMARY FINDINGS ON THE PROFESSIONAL ETHICS ASSESSMENT ON THE THREE PROVINCES • Anti-corruption fora: At the time of publication, no full provincial anti-corruption fora were functioning. Currently the status is as follows: • FREE STATE: the province had no anti-corruption forum. • KWAZULU-NATAL: the province did not have participation from civil society and the Forum was not fully represented. • LIMPOPO PROVINCE: the province does not have a provincial forum in place but this has become inactive in the last 12 months. • Code of Conduct: training and promotion of the Code of Conduct is uneven across all three provinces • Minimum anti-corruption capabilities: it is not applied in all the departments, and where this is applied, in KZN and Free State provinces, it is poorly implemented.

15. SUMMARY FINDINGS (CONT) • None of the provinces have procedure manuals for investigation of corruption in their departments. • Only 1 department in each of the provinces has formal agreements with other anti-corruption agencies to assist with complex cases of investigation. • The systematic monitoring of corruption is done unevenly across all three provinces. • In terms of compliance with disclosing financial interests by senior managers, only the Limpopo province complied with the due date of 31st May, and this at 71% of their senior managers. • In response to feedback provided to the NACH of cases of corruption referred, KZN and the Free State showed very low response rates, while Limpopo responded in 48% of cases only.

16. SUMMARY FINDINGS (CONT) • Whistle blowing policies have been implemented unequally also. In the case of Free State, only 1 department could show proof of an effective whistle blowing policy having been implemented. • Anti-corruption legislation (PDA, PAJA, PAIA) have also been implemented unevenly across departments. CONCLUSION This snapshot based on detailed research is evidence of a poor preparedness to deal with corruption in a coherent and systematic manner. It further points to a systemic vulnerability to risk and to possible penetration by criminal syndicates.

17. BLACKLISTING (2002) • At the National Anti-Corruption Summit, held in 1999, a call was made for amongst others, the blacklisting of businesses and organizations found guilty of corruption. This resulted in a PSC Report on Blacklisting, published in 2002. • The report found the common law protects the identity of an individual or legal entity as well as their dignity and right to a good name. The report further found that for blacklisting to be implemented effectively, alleged perpetrators have to go through a judicial process, consistent with the Promotion of Administrative Justice Act (PAJA), Act no 3 of 2000.

18. BLACKLISTING (CONT) • This legislation finally found expression in the Prevention and Combating of Corrupt Activities Act no 12 of 2004, specifically at Section 29 (f), which makes provision for a Register of Tender Defaulters. The Register is kept by the National Treasury. Whenever a person or business is convicted by a court of law of crimes involving contracts or tenders, their names and details, including names of directors, are recorded in this register (together with the details of the offence). • Accordingly, • Existing government contracts or tenders that they have can be cancelled immediately and they have to pay any costs that result from this. • Their names remain on the Register for between 5 and 10 years. While their names are on the Register, they are not entitled to any new contracts or tenders. • To date (as at 23/10/2009) no persons or entities appear on the Register.

19. SUMMARY OF TRENDS EMERGING FROM THESE REPORTS • Government appears to be comfortable with the multi-agency approach to combating corruption. Instead it has gone for the development of specialized agencies like the Hawks to deal with complex and syndicated crime. • Anti-corruption hotlines have been centralized in the one National Ant-corruption Hotline. It has had qualified success to date. This success can be increased provided that departments dramatically improve their investigative capabilities. • Whistle blowing is still a problem in the public sector (as well as in the private sector) as the PDA still needs to be overhauled in terms of whistle blower protection. Nationally, potential whistle blowers are very hesitant to come forward because of the negative experiences of previous whistle blowers. • The Code of Conduct needs to be reviewed and aggressively marketed by departments if it has to have any positive affects. Ethics champions need to be appointed to help make this happen.

20. SUMMARY OF TRENDS (CONT) • The management of conflicts of interest appears to be in a developmental stage: Compliance has largely become part of the regime of most departments. What needs to become part of the new practice by departments and the PSC is the scrutiny of the disclosure forms to eradicate any misconduct as a result of deliberate omission or wrongful disclosure of financial interests. The PSC has already started with such investigations and it is hoped that those found to have disguised or omitted financial interests will be prosecuted accordingly. It must be said that the purpose of the FDF is to help managers manage potential conflicts of interest and so keep them honest. • In terms of professional ethics initiatives in the provinces thus far assessed, most departments are vulnerable to the risk of fraud and penetration of crime syndicates. The PSC must engage with such departments on a continuous basis to encourage the urgent addressing of such weaknesses. • Supply chain management remains problematic, based on media allegations. It is disturbing that to date the Register of Tender Defaulters is still unpopulated. Is this because whistle blowers are too afraid to come forward, or, that collusion is so successful that information is well hidden?

21. THANK YOU!