Ethics in the Public Service Resource Document PDF

[Type text] ETHICS in the Public Service RESOURCE DOCUMENT Ethics resource document Copyright © 2016 National School of Government All rights reserved. No part of this manual may be reproduced in any form or by any means, graphic, electronic or mechanical, without the written permission from the publisher. This includes the making of photocopies of the whole or parts of the manual. Published by the National School of Government National School of Government ZK Matthews Building, 70 Meintjes Street, Travenna Place, Pretoria, South Africa Private Bag X759, Pretoria, 0001, South Africa Tel: +27 12 441 6000 Fax +27 12 441 6030 Web: www.thensg.gov.za 2 Ethics resource document Acronyms and icons DD Deputy Director DDG Deputy Director-General DG Director-General DPSA Department of Public Service and Administration HoD Head of Department IT Information Technology NSG National School of Government OECD Organisation for Economic Cooperation and Development PSC Public Service Commission SAPS South African Police Services UNCAC United Nations Convention Against Corruption UNODC United Nations Office on Drugs and Crime Important Notes Important points to take note of This icon will appear when definitions of a particular term or Definition concept are given in the text Sources of information used in the Learner Guide and References further reading that can be done Summary Summary of major learning points 3 Ethics resource document This icon points to a section in the text, in which relevant Example examples for a particular topic or concept are provided Suggested responses to the activities and debriefing of the Feedback activity/task 4 Ethics resource document Contents 1. Background............................................................................................................ 7 2. The mandate for ethics management..................................................................... 8 3. Key terms............................................................................................................... 9 3.1 Key terms...................................................................................................................... 9 3.2 Interrelationship between ethics, morals and the law.................................................. 15 3.3 Compliance................................................................................................................. 16 3.4 Forms of Corruption.................................................................................................... 24 3.5 Distinguishing between fraud, theft, corruption and related misconduct...................... 27 4. Ethics Prescripts................................................................................................... 28 4.1 Overview.................................................................................................................... 28 4.2 Ethics Prescripts.......................................................................................................... 29 4.2.1 Constitution of the Republic of South Africa............................................................. 29 4.2.2 Public Service Act, 1994........................................................................................... 29 4.2.3 Public Service Regulations, 2016.............................................................................. 30 4.2.4 The Promotion of Access to Information Act (PAIA), 2000......................................... 37 4.2.5 The Promotion of Administrative Justice Act (PAJA), 2000........................................ 37 4.2.6 Protected Disclosures Act (PDA), 2000...................................................................... 37 4.2.7 Prevention and Combating of Corrupt Activities Act (PRECCA), 2004........................ 38 4.2.8 Public Administration Management Act (PAMA), 2013............................................. 38 4.2.9 Other important prescripts...................................................................................... 38 5. Approaches to ethics management....................................................................... 39 5.1 Ethics management..................................................................................................... 39 5.2 Approaches to ethics management............................................................................. 39 6. Ethics management framework............................................................................ 42 7. Leadership commitment....................................................................................... 43 8. Ethics structures................................................................................................... 45 8.1 Ethics champion.......................................................................................................... 46 8.2 Ethics committee........................................................................................................ 48 8.3 Ethics office................................................................................................................. 50 Consolidation and Conclusion......................................................................................... 53 9. Further reading.................................................................................................... 54 5 Ethics resource document Welcome and overview Welcome The National School of Government (NSG) is committed to help build an ethical culture in the Public Sector through learning and development. We trust that you will find the programmes and courses dealing with ethics stimulating and inspiring, and that this will open up new ways of thinking and doing in the fight against corruption in public service. Ultimately, we seek to improve service delivery in a manner that is consistent with the values of the Constitution of the Republic of South Africa. Purpose The overall purpose of ethics courses is to promote ethical behaviour in public service, to prevent unethical conduct, fraud and corruption, and to support ethics, integrity management and anti- corruption. The Constitution requires a high standard of professional ethics in the public service. This means that public administration must be governed by the democratic values and principles as well as the standards for professional ethics enshrined in the Constitution. Ethical conduct and organisational integrity are key to eradicating fraud and corruption in public service and administration. It is therefore imperative to implement an ethics management programme that will equip public officials with the skills and competencies to make ethical decisions, develop organisational integrity, prevent fraud and combat corruption in the public service. Available courses  Ethics in the Public Service (non-credit bearing)  Ethics and Integrity Management course (non-credit bearing)  Promoting Anti-Corruption in the Public Service, accredited at NQF level 4 and aligned to Unit Standard no 243263 (5 credits)  Anti-Corruption Training for Practitioners, accredited at NQF level 5 and aligned to Unit Standard no 243264 (5 credits)  Investigate Corrupt Activities and Related Offences, accredited at NQF level 6 and aligned to Unit Standard 386073 (10 credits) Details about the courses Ethics is every public servant’s business. The course directory on the NSG website provides detail about the available ethics courses, including the target audience, purpose, and duration. 6 Ethics resource document 1. Background How do we know what is right and what is wrong, what is good and what is bad? We all have a moral compass that guides us in taking decisions and selecting from a range of possible ways to handle a given situation. Easy! We all know that we should not waste water. Water is scarce and expensive, so close the tap. No question about it. We receive similar messages in all the media – to save electricity, buy proudly South African, pay your taxes, don’t drink and drive, slow down, speed kills. When the traffic light is red, that means stop. Right…? In some situations it may be easy to “do the right thing”. You know what is right and you know what is wrong. There are no in-betweens or maybes. However, there may also be occasions when you may think that the distinction between right and wrong depends on one’s interpretation of the situation, or when we don’t know what our decision or next step should be. In everyday life, we often grapple with moral challenges and ethical dilemmas. This may happen when we apply personal values in the professional environment and in particular in the public service environment. What is ethics management in an anti-corruption context? Why do we need public service ethics and codes of conduct, and how can integrity be achieved in the spheres of government? This resource document will assist you to understand - 1. The mandate for and leadership commitment to ethics 2. Key terms to explain integrity, ethics and compliance 3. Different approaches to ethics management 4. The standards for ethical conduct 5. Components of ethics structures 6. Ethics management processes 7. Monitoring and reporting on ethics 7 Ethics resource document 2. The mandate for ethics management What is a mandate? When someone has a mandate, it means that the person is both obliged to and has the authority to do something, and can do so legitimately. The Constitution of South Africa (1996) provides the framework for good governance in the Public Service. Chapter 10 of the Constitution states as follows: “A high standard of professional ethics must be promoted and maintained”. This provides the mandate for ethics management. National legislation has been enacted to give effect to this mandate. The Public Service Act assigns the responsibility to the Minister for Public Service and Administration for establishing norms and standards related to integrity, ethics, professional conduct and anti- corruption in the Public Service. The Public Service Code of Conduct mandates heads of department with a specific responsibility to manage the conduct of employees and to instill ethical principles and practices in the Public Service. The Code of Conduct also places a duty and responsibility on employees to behave ethically at all times. The Public Administration Management Act, 2014 extends the mandate for ethics management to the whole of the Public Administration. Besides these legislative and regulatory responsibilities there rest a general moral responsibility on all to behave ethically and to provide ethical leadership. Ethics should not be managed merely as a compliance exercise. Constitution, Public Service Ethics management Public Service Act Code of Conduct framework and plans Minister for Public Heads of All employees Service and department Administration FIGURE 1: THE ETHICS MANAGEMENT VALUE CHAIN In the next section we will explain the terms used above, focusing on integrity, ethics and compliance, and associated terms. 8 Ethics resource document 3. Key terms This course is about ethics management in an anti-corruption context. A number of terms are key to understanding the “building blocks” of ethics management in an anti-corruption context. These building blocks are: Integrity Compliance Ethics FIGURE 2: BUILDING BLOCKS OF ETHICS MANAGEMENT We will now explain each of these building blocks in turn and also see how these building blocks (terms) are inter-connected. 3.1 Key terms In order to start understanding ethics, we need to look at some terms, defined as follow for the purposes of this training manual: 3.1.1 Values: Values describes individual or personal standards of what is valuable or important. It is our fundamental beliefs about what is desirable, what is right and what is good that provide us with guidance to distinguish between right and wrong. Our values provide important guidelines for our conduct (including the ways in which we behave, the choices that we make). Our values can be seen as the collection of ethical decisions which have become ingrained in who we are. Some values are shared (for example, respect for life) and has thus become universal. Universal values are values that are unchangeable, such as integrity, honesty, transparency, respect, trust, accountability, responsibility and fairness. However, sometimes our values can come into conflict with each other. This creates an ethical dilemma, which causes us to not know what the next step is because in this particular situation we are unsure about what is good and right. In short, values are the guidelines followed by individuals to do good to themselves, to society at large and to avoid harm to others in the process. 3.1.2 Norms: Norms are the rules that we apply to a specific situation and are based on our values. 3.1.3 Morals: When people get together as a community, they share certain values that guide them when interacting with one another. These shared values become commonly regarded as acceptable 9 Ethics resource document behavior and provides the compass for society to judge behaviour. As a result, morals describe the goodness or badness or right or wrong of actions. Morals are based on what society regards as acceptable behavior. The opposite of moral is immoral. 3.1.4 Integrity: When a person’s values are in agreement with that of society, society regard that person to be a person of integrity. In short, one can say integrity is doing the right thing always, even when no one is looking. This may apply to your professional life, but also your personal life. Organisations can also have integrity. Organisational integrity is obtained when the values of the employees are aligned with that of the organisation, and that values reflect the organisation’s legislative mandate, its vision and mission, and the services rendered by the organisation is in line with the expectation of their stakeholders, namely the public and their partners. Figure 4 below brings it all together. Individual values and organisational values Organisationvalues Stakeholders are in line with the expectation is met Constitution, laws, regulations, vision and mission FIGURE 3: ASPECTS OF ORGANISATIONAL INTEGRITY As indicated, the term integrity means doing the right thing and doing it consistently. Having integrity makes a person reliable and trustworthy. Organisational culture can affect how individuals behave. The work environment can have either a constructive or a negative influence on the reliability and trustworthiness of a person. Therefore, it is 10 Ethics resource document important that we see the promotion of ethical conduct at both an individual and an organisational level as this relationship can be constructive or corruptive. Similarly, an organisation and specifically a public service organisation is part of society. There is continuous interaction between the public and public servants. This relationship is bidirectional, in that society can either conserve or corrupt the public service. But given the size and power of the public service, ethics in the public service and ethical public servants can improve and strengthen the moral fibre of society. 3.1.5 Compliance: This is where a person follows a rule or an order. An example of compliance is when someone is told to do something and they do it. It doesn’t mean they want to do it. They are doing it because they think they have to. 3.1.6 Ethics: Ethics is about how we ought to live, treat others, make decisions, run or manage our lives and organisations beyond the demands of laws and regulations. Being ethical is about distinguishing between what is morally right and wrong with the purpose of doing what is right. If a person has the ability to distinguish between right and wrong but chooses NOT to do what is right, this conduct can be described as unethical. In contrast with morals that are based on what society regards as acceptable behavior, ethics is based on formalized or professional standards. When different values conflict with one another, an ethical dilemma occurs. A person is then forced to choose between the conflicting values. For example, you found out that your best friend is cheating on his wife. The two conflicting values are that of loyalty and honesty. If you choose loyalty (your friend), you know you will have to lie for his wife, but if you choose honesty (his wife), you will lose your best friend. When we ask the question “why?” it prompts us to reflect on our process of thinking, weighing the options and decision-making, which brings us to the topic of ethics. Definition “Ethics” is about how we ought to live, treat others, make decisions, run or manage our lives and organisations beyond the demands of laws and regulations. In short, about doing the right thing. 3.1.7 Contextualisation of ethics: We all have values. But, values differ from person to person. This is because we were all exposed to different influences: we were raised in different homes, different 11 Ethics resource document communities, have different cultures, attended different schools and attended different social clubs, churches, etc. As a result we may agree on the broad universal values (such as human rights, dignity, etc.), but we may disagree when analyzing general situations because we use our own values to analyse and judge that situation. Take for example children faking an illness so as not to attend school. Some parents may allow it out of love for their children, but some may not tolerate it looking at the effect it will have on the child in the long term. Even if it is something small, faking an illness is about not being honest. When the situation involves more persons (for example more children faking disease to stay away from school), one needs to judge the situation using your moral compass, as informed by society. When society does not tolerate dishonesty, they will not allow children to fake illness to stay away from school. The result will be the teachers calling parents to discuss the problem. To take the argument a step further, let us look at another example. Do criminals have their own values? When a group of criminals rob a bank, they might agree to share the money amongst themselves because they think that is the right thing to do. That would then be their value- to be loyal to each other. We as a society condemn them for being dishonest by stealing money from others. Our moral compass informs us that although they are being honest with one another, their activities are dishonest and harmful to society. The aforementioned examples illustrate that the context of one’s action is very important. As Public Servants we carry our personal values with us and into the workplace. But, at the workplace, our activities will not be judged as moral or immoral, as that term is reserved for activities conducted when we are at home and performed as members of society. For example, if a public servant lies to his spouse about how much he spent on his new shoes, that action is immoral. However, if a Home Affairs official swears at a member of public queuing in the wrong queue, that Public Servant is acting unethical. Why? We reserve the term professional ethics to the activities of a person conducted at the work place. So, when we talk ethics, we need to contextualize the situation. As Public Servants we operate in a professional workplace context. As such, at work we need to adhere to the values prescribed by the Public Service. This means that even though we all have our own values, culture and morals, as Public Servants we have to adopt the values and culture of the Public Service. When we do not adhere to these values, we are acting unethical. So, if we want to judge whether our conduct is good or bad, we have to use the Ethics Standards prescribed by our employee. If our conduct is not in line with these Ethics Standards, we are not compliant and can be found guilty of contravening the Code of Conduct or bringing the origination into disrepute. 12 Ethics resource document What are the Ethics Standards we need to comply with? This will be dealt with in Chapter 4, but in essence, all Public Service values stem from the Constitution. As Public Servants we are obliged to uphold the principles and values of the Constitution (as also expressed in the Batho Pele principles). Furthermore, the Bill of Rights in the Constitution enshrines our fundamental human rights and provides a framework for ethical behaviour. These rights relate to: TABLE 1: SUMMARY OF FUNDAMENTAL HUMAN RIGHTS Equality Privacy Access to information Human dignity Labour relations Just administrative action Freedom and security of the Property Environment person Public Servants are expected to honor the values as espoused in the Constitution in all decisions and actions taken. We can take a decision in a difficult situation by applying the principles of ethical conduct, which involves:  Self  good  other Figure 5 provides an overall picture of these elements in terms of two triangles: Good 1 Self  Other  2 Harmful, undue hardship   FIGURE 4: THE ETHICS TRIANGLE 13 Ethics resource document In triangle 1: Ethical (good) behaviour results when one does not merely consider what is good for oneself, but also considers what is good for others (Rossouw and Van Vuuren, 2010: 4-5)1. In triangle 2: Many of us hold the value of putting others before we consider ourselves. Ethics is not just what is good for others, while sacrificing the self. You are not expected to compromise your health, safety or wellness for the sake of being ethical. Neither self-sacrifice nor selfishness leads to ethical conduct. You cannot remove the self from the triangle. This leads to self-sacrifice which is harmful to yourself. Neither can you remove the other from this triangle. This leads to selfishness, which is harmful to others and therefore unethical. Your friend would also be unethical by putting pressure on you by insisting on a ride for the reasons explained above. (Source: http://www.commonsenseethics.com/) Summary Being ethical ensures the interest of oneself and others. Important Point Ethics is about distinguishing between what is morally right and wrong with the purpose of doing what is right. If you seek to serve your own interests, whilst simultaneously caring about the interests of others in doing good, then your behaviour is self-interested whilst also being ethical. Own Notes Think about the concept of Ubuntu. How does the explanation of ethics in this module correspond with your understanding of Ubuntu? 1 Rossouw, D., & Van Vuuren, L. (2010). Business Ethics (4th edn.). Cape Town: Oxford University Press. 14 Ethics resource document Reflection The Public Service Integrity Test Is it legal? Does the Code of Conduct and policies allow it? Do my professional standards allow it? What would my ethical role model do? How would it look on the front page of tomorrow’s newspaper? How does it make me feel? Would I be comfortable sharing my decision with my closest family and friends? 3.2 Interrelationship between ethics, morals and the law When the moral compass of a person fails him or her and harm is done to another (such as stealing from a person), the harmed party will seek justice at the courts. The courts will use private law or criminal law (part of public law) to support the social order. In the process to support the social order, criminal law over the years formulated crimes to protect society, such as theft, fraud, corruption, extortion and intimidation, which are all unlawful. The underlying element of all these crimes is DISHONESTY. However, conduct that is unethical is not regulated by the law. But, where the element of dishonesty is involved, the conduct becomes unlawful. Unethical behaviour is conduct that is wrong, unfair, and bad. In the workplace context, unethical conduct refers to behaviour that falls below or violates the professional standards of the organisation. For example, if a Public Servant is impatient with a member of the public and provides a shoddy service, that Public Servant is not contravening any law, but is contravening the Code of Conduct and is therefore regarded as acting unethical. In this case, the Public Servant is guilty of misconduct. However, criminal offences may well include unethical behaviour. For example, when a Public Servant hits a member of public when performing his work, that Public Servant contravened the Code of Conduct, but is also guilty of a crime (assault). The Public Servant can be criminally charged, and will face an internal disciplinary hearing into his or her misconduct. Likewise, irregularities or breaking of rules contain an element of unethical behaviour. For example, it is expected of a Public Servant to work a full working day. So when a Public Servant leaves his or her office to go home early, that Public Servant is not only breaking a rule (and therefore is guilty of misconduct), but is also acting unethical, because his or her conduct is supposed to be professional. But, when an action is legal, it does not mean to say it is ethical. For example, the viewing of pornography is legal in South Africa, but in a workplace situation to view pornographic images on your official laptop would be unethical. If there is a Code of Conduct that prohibits this, it will even be 15 Ethics resource document misconduct. Codes of Conduct introduced by departments may set a higher standard than what is required by law. As such, it may include prohibitions on the acceptance of gifts and even prohibit employees from performing other remunerative work. One can even break the law and still act ethically! For example, you jump red lights to rush to hospital with your severely sick child. Because of the interrelationship between morals, ethics and the law, an interrelationship exists between unethical, irregular and unlawful conduct. Unethical conduct stems from the breaching of universal values and ethical norms, irregular conduct or misconduct stems from the breaking of rules, policies and codes of conduct (corporate governance) and unlawful conduct (crimes and offences) stems from contravening a legislative framework. This interrelationship is important to understand when a Public Servant decides to comply or not to comply with a rule. One can therefore comply for the right reasons, or comply for the sake of complying, or even worse, maliciously comply with no regard for the consequences. Unlawful Behaviour Misconduct Unethical Behaviour (Irregularities) FIGURE 5: INTERSECTION OF LEGISLATION, ETHICS AND MORALS 3.3 Compliance It is required of Public Servants to comply with the Constitution, laws, regulations, codes and policies regulating and dictating our work and behaviour. Non-compliance contributes to conduct that is not desirable, such as irregular conduct, misconduct and unlawful conduct. In this section, we ask the questions what is irregular and unlawful conduct? 16 Ethics resource document Definition Compliance is about adhering to specific statutory requirements, rules, regulations and codes. Example Administrative justice, Treasury Regulations, Code of Conduct 3.3.1 Irregular conduct/Misconduct Irregular conduct and misconduct refers to the breach of any workplace procedure, protocol, rules, regulations or the Code of Conduct, for example: Inadequate vetting of employees Non-compliance with tender procedures Abuse of the system of overtime / false overtime claims Non-compliance with delegated authority limits “Ghost” employees Abuse of assets, e.g. private photocopies, private use of company vehicles Use of resources for private gain, e.g. using company computers to print private business stationery Undisciplined behaviour, such as late-coming, absence without approval 3.3.2 Unlawful conduct Breaking the rules invariably has negative consequences. On the sports field, the breaking of the rules of the game can lead to penalties, such as “time out”, or being sent off the field. Elsewhere in society, it is not always clear-cut. It is not always visible to others when someone breaks the rules. Many times, these incidences can be hidden from others. It can happen ‘quietly’, and the effects can be ‘invisible’ to others. What does this mean to you as a government public servant? Officials execute government policy and work with public money, meaning we are accountable to government and the electorate. This forms the basis of public administration and management. Ethical 17 Ethics resource document conduct requires that officials’ conduct will be responsible, and thereby promote public confidence in public officials’ integrity. Unfortunately, public servants and councillors sometimes engage in unlawful, unethical and irregular conduct. In the next section we will look at the criminal consequences of unlawful conduct. (1) What is a crime? A crime is an unlawful, blameworthy act or omission, punishable by the state, because the interests of the state or the community is harmed (Snyman, 2008: 4).2 In summary, a crime constitutes conduct that is legally forbidden, which may, in principle, be prosecuted only by the state, and which always results in the imposition of punishment. Where someone is convicted of a crime, punishment is imposed with a view to retribution, the prevention of the crime, deterrence or the rehabilitation of the offender. As a rule, the state prosecutes in a criminal case. If a person is charged in a court with having committed a crime, the trial is governed by the rules of criminal procedure. The same act or behaviour is not always and in every situation unlawful. Exceptions occur on grounds of justification, such as private defence, necessity, consent and official capacity. Example A police officer may in the course of duty, be required to run after a criminal and to get hold of him by tackling him to the ground. Although the tackling is an assault, which is a crime, the police officer will not be punishable for the crime because his assault is justified by the arrest of the criminal. Important Point It is important to remember that both intention and neglect are considered grounds for blame for unlawful conduct. While intention, or the deliberate, wrongful act or omission, is a requirement for most crimes, other crimes can result because of a person’s negligence. Negligence exists where a person has failed to take the necessary precautions in the way in which a reasonable person, with the same experience, skills and knowledge, would act in the same circumstances. Against this background of morals, ethics and the law, we now turn to a description of corruption. We will start with the question, what is corruption? 2 Snyman, C.R. 2008, Criminal Law (Fifth Edition) Durban: Lexis Nexis, p.4. 18 Ethics resource document (2) The legal definition of corruption In South Africa the Prevention and Combating of Corrupt Activities Act (PRECCA, Act 12 of 2004) describes corruption as follows: Corruption is where one person (A) gives (or offers to give) someone in a position of power (B) something (called ‘gratification’ in the Act, also a benefit or bribe, see p.31) to use that power, illegally and unfairly, to the advantage of A (or a third person). B will also be guilty of the same crime if he/she accepts (or offers to accept) the gratification to wrongly use her/his position. Transparency International defines corruption simply as “the abuse of entrusted power for private gain”. FIGURE 6: THE LEGAL DEFINITION OF CORRUPTION Section 3 of the Act contains the formulation of the general crime of corruption. The section reads as follows: “Any person who, directly or indirectly – Accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of that other person or for the benefit of another person, in order to act, personally or by influencing another person so to act, in a manner – that amounts to- the illegal, dishonest, unauthorised, incomplete, or biased; or misuse or selling of information or material acquired in the course of the exercise, carrying out of performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation; that amounts to – the abuse of a position of authority; a breach of trust; or the violation of a legal duty or a set of rules, designed to achieve an unjustified result; or that amounts to any other unauthorised or improper inducement to do or not to do anything, 19 Ethics resource document – is guilty of corruption”. PRECCA also creates various categories of corruption in the public and private services. These crimes can be divided into: Crimes that apply to everyone: The general crime of corruption applies to everyone in the private and public service. It covers both of the following situations:  An employee in the private or public service offers to use their position to help someone else get what they want in return for money or a favour. In this case, the employee is guilty of corruption. If the other person accepts the offer, he or she will also be guilty of corruption.  Someone offers an employee in the private or public service money or a favour to help them get something that they want. In this case, the person making the offer is guilty of corruption. If the employee accepts the offer, he or she will also be guilty of corruption. Crimes involving contracts: The Act makes it a crime for anyone to offer or accept money or favours to influence who gets a contract; or to dishonestly manipulate a contract price. Receiving or offering an unauthorised gratification/gift: where someone uses her/his position to illegally give someone a benefit that s/he is not entitled to. Other crimes: It is a crime –  For people charged with a crime to offer money or favours to the police or prosecutor to drop the case;  To interfere with an investigation into corruption;  To assist someone involved in corruption, either during the act itself or afterwards. 20 Ethics resource document Summary Corruption can informally be described as: The act of unfairly or illegally influencing a decision-making process through the giving or receiving of a benefit (gratification) for the person making the decision or a third party connected to the decision maker. In other words, corruption is where:  one person (A) gives (or offers to give)  someone in a position of power (B)  something (called ‘gratification’ in the Act)  to use that power, illegally and unfairly, to the advantage of A (or a third person). (3) Criminalising corruption There are other important considerations relating to the crime of corruption that must be noted and are discussed below. Corruption is a crime of intent The corruptor and the corruptee both know their actions/inaction are wrong and that it may lead to prejudice for another, and yet they continue their wrongful behaviour. Once a person understands that corruption is a crime, a defence of ‘ignorance’ can no longer be put forward. The term gratification PRECCA refers to the term “gratification”. This may include ANY benefit which amounts to money, donation, gift, loan, fee, reward, or privilege. The reasons for punishing corruption The reason for punishing corruption in the Public Service is that society has an interest in the transparency and integrity of public administration. Public servants are stewards of societal funds. Corruption subverts the principle of lawful competition and free enterprise because the corruptor may be offering the bribe to obtain preferment over some competitor whose product or service is actually better that that of the offeror, but who cannot or will not resort to bribery (Snyman, 2008: 409). (4) How does corruption happen? Corruption involves the intentional abuse of functions or position, that is, the performance of or failure to perform an act, in violation of laws, by a public official in the discharge of his or her functions, for the purpose of obtaining an undue advantage for himself or herself or for another person or entity. 21 Ethics resource document Abuse of power and conflict of interest are key elements of corrupt conduct.  Corruption is often perpetrated by abusing power, authority or functions. Abuse of power involves a Public Servant using his/her vested authority to improperly benefit another Public Servant, person or entity (or using the vested authority to improperly discriminate against another public servant, person or entity). For example, during a tender process but before the actual selection of a successful contractor, the head of department expresses his/her wish to see the contract awarded to a specific contractor or person.  Conflict of interest: Corruption involves a conflict of interest. Transparency International defines a conflict of interest as follows: A situation where an individual or the entity for which they work, whether a government, business, or civil society organisation, is confronted with choosing between the duties and demands of their position and their own private interests. This involves an employee putting his or her personal interest before the organisational best interest. A conflict of interest can lead to poor judgment and to actions which are not honest and open, ultimately leading to broader damage. Conflict of interest is a situation first and foremost where personal interest and public interest come into conflict. For example when a secretary needs to choose to buy stationary with petty cash from an existing shop or from her unemployed brother. In this situation, a person needs to exercise judgement. In deciding whether this is right or wrong, the person relies on personal values and organisational values. Once a personal judgement has been made, the person chooses to act in a particular manner. A conflict of interest then occurs when the person acts on his or her personal values, and disregard organisational values. Simply put, conflict of interest arises in a situation in which the personal interest of a public official interferes or has the potential to interfere with the person’s ability to discharge public duties. The diagram below illustrates how conflict of interest happens (OECD, 2005).3 3 OECD (2005) Managing Conflict of Interest in the Public Sector: The Toolkit. 22 Ethics resource document FIGURE 7: CONFLICT OF INTEREST EXPLAINED Summary The term conflict of interest is used to describe the situation in which a public official or fiduciary who, contrary to the obligation and absolute duty to act for the benefit of the public or a designated individual, exploits the relationship for personal benefit. Example A public servant considers tenders for a contract and awards the tender to a company of which his/her partner is a director, knowing that it will also be to his/her own benefit. The Public Finance Management Act (PFMA), Public Service Act, and the Public Administration Management Act (2014), require a declaration of interest from Public Service employees. A public official has a duty to serve the interest of the general public above private/personal interest. Conflict of interest arises where a person is not objective and independent of mind in the exercise of functions because of vested interests somewhere else. 23 Ethics resource document Examples  When a Public Servant obtains private business interests in the form of a partnership, shareholding, board membership or investments in a private company that is doing business with his or her department.  When a Public Servant represents his or her department in a decision- making process in which an individual or a company that is associated with the public official is the subject of the discussion.  When a Public Servant receives a gift from a company that is doing business for his or her department and he or she is also managing or in charge of the project under the contract. In certain relationships, individuals or the general public place their trust and confidence in someone to act in their best interests. When an individual has the responsibility to represent another person, whether as administrator, attorney, executor, government official, or trustee, a clash between professional obligations and personal interests arises if the individual tries to perform that duty while at the same time trying to achieve personal gain. The appearance of a conflict of interest is present if there is a potential for the personal interests of an individual to clash with fiduciary duties. 3.4 Forms of Corruption The UN Convention Against Corruption explains the following as specific ways in which corruption happens: Bribery Definition The promise, offering or giving, to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity. South Africa is also a signatory to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (This is an OECD Convention). Examples Some public officials expect to be paid for services that are actually part of their normal duties, such as issuing passports, identity documents, permits or licences. If persons pay a bribe, they receive immediate attention, whereas if they do not pay a bribe, the service may be delayed or denied. 24 Ethics resource document Embezzlement Definition The embezzlement, misappropriation or other diversion by a public official for his or her benefit or for the benefit of another person or entity, of any property, public or private funds or securities of any other thing of value, offering or giving, to a public official, directly or indirectly, of an undue advantage, for the entrusted to the public official by virtue of his or her position. Example: Embezzlement involves the theft of resources by persons entrusted with authority over and control of such resources, for example a hospital staff member steals medicines and sells the stolen medicines to private pharmacists. Trading in influence Definition (a) The promise, offering or giving to a public official or any other person, directly or indirectly, of an undue advantage in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority an undue advantage for the original instigator of the act or for any other person. (b) The solicitation or acceptance by a public official or any other person, directly or indirectly, of an undue advantage for himself or herself or for another person in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority an undue advantage Example: A local government official, as a result of his or her particular office, has knowledge of residential areas that are to be rezoned as business areas. He or she informs friends and family in order for them to acquire the residential properties with a view to selling these as business properties at a premium. 25 Ethics resource document Illicit enrichment Definition A significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income. Often, the only tangible evidence that a crime has taken place is the money that changes hands between the corrupt official and his partner in crime, thus the enrichment of the corrupt official becomes the most visible manifestation of corruption. Example: A public official who work with immigration permits whose annual salary is known to be average, buys properties, amounts of money in addition to his salary are deposited into his bank account and he is unable to explain how he acquired the additional wealth. The criminalization of “illicit enrichment,” frequently referred to as “disproportionate wealth” or “inexplicable wealth,” allows states to, among other things, prosecute corrupt officials and confiscate the proceeds of corruption on the basis that the unexplained wealth is evidence of corrupt conduct (This is the work of the National Prosecuting Authority, in particular the Asset Forfeiture Unit). The need to prove that such wealth is unexplained stands, but in such frameworks, there is no need to prove the source of the illegally acquired wealth by identifying and proving the underlying offenses, such as bribery, embezzlement, trading in influence, and abuse of functions. As a result, the effect may extend beyond corruption and allow states to confiscate the proceeds of other crimes. Illicit enrichment is similar to money laundering in that there is no need to prove an underlying offense, although the criminal origins of funds still need to be proven in the case of money laundering. See the definition below. Laundering of the proceeds of crime Definition (a) The conversion or transfer of property, knowing that such property is the proceeds of crime, for the purpose of concealing or disguising the illicit origin of the property or of helping any person who is involved in the commission of the offence to evade the legal consequences of his or her action. (b) The concealment or disguise of the true nature, source, location, disposition, movement or ownership of or rights with respect to property, knowing that such property is the proceeds of crime. 26 Ethics resource document Example Money laundering takes several different forms although most methods can be categorized into one of a few types. Of these which may include "bank methods, smurfing [also known as structuring], currency exchanges, and double- invoicing". The below is probably the most obvious from taking place in South Africa today 3.5 Distinguishing between fraud, theft, corruption and related misconduct Description Examples Corruption: Defined in the Prevention & The term bribery refers to the promise, offering or Combating of Corrupt Activities Act, 2003 giving of a benefit that improperly affects the actions or decisions of, in the case of the Public Service, public officials. This benefit may accrue to the public service official, another person or an entity. For example, a traffic officer accepts a cash payment in order not to issue a speeding fine. Theft: The unlawful possession of something Theft of laptops/ petrol/ cheques/ state funds/ with the intent of keeping it, without the owner’s food/ petty cash. permission. Fraud: An act of intentional dishonesty with the Social grant/ petty cash/ travel claim fraud. intention to deceive another party which results Capturing fraudulent transactions. in gain for the deceiver or his/her beneficiaries and/or loss for the deceived. Financial mismanagement: Expenditure other Wasteful and fruitless expenditure. than authorised expenditure, incurred in Failure to follow procurement procedures. contravention of, or that is not in accordance Payments to service provider without receiving with, the requirements of any applicable goods. legislation Misappropriation and abuse: The wrongful, Abuse of government vehicles. improper or excessive use of public funds and/or Damage to government vehicles. assets in a person’s care. Petrol card/telephone abuse. Gross negligence: Any act or omission without Loss of state property/funds. considering the consequences thereof. Not authorised to approve expenditure. 27 Ethics resource document 4. Ethics Prescripts 4.1 Overview In this module, we emphasised that we all have our own values and therefore we may differ in judging what is right and wrong. As Public Servants we need to be informed of the ethics prescripts we need to abide to in our workplace. This will make sure that we interpret “good and bad” in the same way. In an organisational context, ethics give rise to the rules of conduct of a profession. As previously indicated, breaching of these rules creates concepts of misconduct/irregularities and unethical behaviour (with the related charge of bringing the organisation into disrepute). This is all the more important, as we are all faced with ethical challenges regarding:  Responsibility and accountability  Conflicts of interest  Confidentiality  Compliance with policies  Professional conduct: interpersonal relationships; performance of duties; personal conduct and private interests As indicated earlier, the behaviour of Public Servants are dictated by the Constitution, section 195. Expected behaviour is also addressed in the Public Service Act, the Public Service Regulations (Chapter II: Code of Conduct); Public Administration Management Act, Public Finance Management Act; Treasury Regulations; Prevention and Combating of Corrupt Activities Act; and Protected Disclosures Act. Other relevant guides include:  Batho Pele Principles  Minimum Anti-Corruption Capacity Requirements (Cabinet Memorandum 2003)  Public Service Integrity Management Framework (Cabinet Memorandum 2013)  Public Service Charter (PSCBC Resolution 1 of 2013)  King V (This may not be a law, but it establishes a higher standard. Chapter 1 deals with ethics.) South Africa also acceded to international anti-corruption instruments that dictate specific behaviour:  The United Nations Convention against Corruption (UNCAC).  G 20 28 Ethics resource document  Organisation for Economic Cooperation and Development (OECD). Important Point South Africa ratified the UN Convention Against Corruption in 2004. Chapter 2 (Article 5) of the UNCAC stipulates as follows: “Each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti- corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability”. 4.2 Ethics Prescripts 4.2.1 Constitution of the Republic of South Africa The mandate and the responsibility for managing ethics are derived firstly from the Constitution. The Constitution of the Republic of South Africa (1996) is the fundamental legislative framework for creating good governance in the Public Service. The following key principles set out in Chapter 10 of the Constitution are of particular importance when we speak of ethics in the Public Service:  “A high standard of professional ethics must be promoted and maintained;  Services must be provided impartially, fairly, equitably and without a bias;  Public administration must be accountable; and  Transparency must be fostered by providing the public with timely, accessible and accurate information.” These values and principles provide the basis for discharging public duty in a professional and ethical manner. It is however the first point, stating that ‘professional ethics must be promoted and maintained ’, which gives the mandate and responsibility for ethics management. 4.2.2 Public Service Act, 1994 To give further effect to this, the Public Service Act, section 3(h), assigns the Minister for Public Service and Administration the responsibility for establishing norms and standards related to integrity, ethics, conduct and anti-corruption in the public service. Section 41(1)(b) provide that the Minister for Public Service and Administration may make Regulations regarding (v) a code of conduct for employees and (vi) the disclosure of financial interests by all employees or particular categories of employees and the monitoring of such interests. 29 Ethics resource document In terms of section 30 of the Act, Employees need to obtain written permission before engaging in other remunerative work. 4.2.3 Public Service Regulations, 2016 Chapter 2 of the Public Service Regulations contains the Code of Conduct for Public Servants. The Code of Conduct is the most important document for a Public Servant. This - together with the Code of Conduct of your own department, the Service Charter (PSCBC Resolution 1 of 2013), and your policies - should guide your conduct and decision-making on a daily basis. “CHAPTER 2: CONDUCT, FINANCIAL DISCLOSURE, ANTI-CORRUPTION AND ETHICS MANAGEMENT Part 1: Code of Conduct Adherence to Constitution and other laws 11. An employee shall— (a) be faithful to the Republic and honour and abide by the Constitution and all other law in the execution of his or her official duties; (b) put the public interest first in the execution of his or her official duties; (c) loyally execute the lawful policies of the Government of the day in the performance of his or her official duties; (d) abide by and strive to be familiar with all legislation and other lawful instructions applicable to his or her conduct and official duties; and (e) co-operate with public institutions established under the Constitution and legislation in promoting the interest of the public. Relationship with public 12. An employee shall— (a) promote the unity and well-being of the South African nation in performing his or her official duties; (b) serve the public in an unbiased and impartial manner in order to create confidence in the public service; (c) be polite, helpful and reasonably accessible in his or her dealings with the public; (d) have regard for the circumstances and concerns of the public in performing his or her official duties and in the making of decisions affecting them; (e) be committed through timely service to the development and upliftment of all South Africans; (f) not abuse his or her position in the public service to promote or prejudice the interest of any political party or interest group; (g) respect and protect the dignity of every person and his or her rights as contained in the Constitution; and 30 Ethics resource document (h) recognise the public's right of access to information, excluding information that is specifically protected by law. Ethical conduct 13. An employee shall— (a) not receive, solicit or accept any gratification, as defined in section 1 of the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004), from any employee or any person in return for performing or not performing his or her official duties; (b) not engage in any transaction or action that is in conflict with or infringes on the execution of his or her official duties; (c) not conduct business with any organ of state or be a director of a public or private company conducting business with an organ of state, unless such employee is in an official capacity a director of a company listed in schedule 2 and 3 of the Public Finance Management Act; (d) recuse herself or himself from any official action or decision-making process which may result in improper personal gain, and this shall immediately be properly declared by the employee; (e) immediately report to the relevant authorities, fraud, corruption, nepotism, maladministration and any other act which constitutes a contravention of any law (including, but not limited to, a criminal offence) or which is prejudicial to the interest of the public, which comes to his or her attention during the course of his or her employment in the public service; (f) refrain from favouring relatives and friends in work-related activities and not abuse his or her authority or influence another employee, nor be influenced to abuse his or her authority; (g) not use or disclose any official information for personal gain or the gain of others; (h) not receive or accept any gift from any person in the course and scope of his or her employment, other than from a family member, to the cumulative value of R350 per year, unless prior approval is obtained from the relevant executive authority; (i) if he or she has permission in terms of section 30 of the Act to perform outside remunerative work, not— (i) perform such work during official work hours; and (ii) use official equipment or state resources for such work. (j) deal fairly, professionally and equitably with all other employees or members of the public, irrespective of race, gender, ethnic or social origin, colour, sexual orientation, age, disability, religion, political persuasion, conscience, belief, culture or language; and (k) refrain from party political activities in the workplace. Performance of official duties 14. An employee shall— (a) strive to achieve the objectives of his or her institution cost-effectively and in the interest of the public; (b) be creative in thought and in the execution of his or her official duties, seek innovative ways to solve problems and enhance effectiveness and efficiency within the context of the law; 31 Ethics resource document (c) be punctual in the execution of his or her official duties; (d) execute his or her official duties in a professional and competent manner; (e) co-operate fully with other employees to advance the interest of the public; (f) be honest and accountable in dealing with public funds and use the State's property and other resources effectively, efficiently, and only for authorised official purposes; (g) use the appropriate mechanisms to deal with his or her grievances or to direct representations; (h) be committed to the optimal development, motivation and utilisation of employees reporting to him or her and the promotion of sound labour and interpersonal relations; (i) avail himself or herself for training and development; (j) promote sound, efficient, effective, transparent and accountable administration; (k) give honest and impartial advice, based on all available relevant information , in the execution of his or her official duties; (l) honour the confidentiality of official matters, documents and discussions; (m) not release official information to the public unless he or she has the necessary approval; (n) when on official duty, dress and behave in a manner that is befitting of a public service employee; (o) not consume alcoholic beverages or any other non-medicinal substance with an intoxicating effect while on duty or shall not report for duty under such influence; (p) not misrepresent himself or herself or use the name or position of any other employee or person to unduly or improperly influence any decision making process or obtain any undue benefit; and (q) shall immediately report any non-compliance of the Act to the head of department. Employees as candidates for elections 15. (1) An employee who is issued with a certificate in terms of section 31(3) of the Electoral Act, 1998 (Act No. 73 of 1998), stating that he or she is a candidate in an election, shall, not later than the next working day, inform his or her head of department in writing thereof and submit a copy of the certificate. (2) The employee shall be deemed to be on annual leave from the date following the date the certificate is so issued until, if he or she is— (a) elected and accepts election, the date immediately before the date he or she assumes office; (b) elected, but declines election, the date that he or she declines election; or (c) not elected, the date of the designation of representatives in terms of item 16 to Schedule 1A to the Electoral Act, 1998. (3) If the employee has insufficient annual leave, he or she shall be deemed to be on unpaid leave for the period in question. Part 2: Financial Disclosure Definitions 16. In this Part, unless the context indicates otherwise— "designated employee" means— (a) any member of the SMS; 32 Ethics resource document (b) any other person in terms of section 36(3) of the Public Finance Management Act approved or instructed by the relevant treasury to be the accounting officer of a department; or (c) any other employee or category of employees determined by the Minister; "form" means a printed or electronic form contemplated in regulation 18; "interests" means the financial interests listed in regulation 19; "register" means the register of interests kept in terms of regulation 17; and "remuneration" means any payment or benefit in cash or in kind. Register of designated employees’ interests 17. (1) The Director-General: Office of the Commission shall keep a register of designated employees’ interests, who are members of the SMS. (2) A head of department shall keep a register of any other designated employees’ interests not contemplated in subregulation (1). Disclosure of designated employees’ interests 18. (1) SMS members, except for a head of department shall, not later than 30 April of each year, disclose to the relevant head of department, in a form prescribed for this purpose by the Minister, particulars of all his or her interests in respect of the period 1 April of the previous year to 31 March of the year in question. (2) A head of department shall, not later than 30 April of each year, disclose to the relevant executive authority, in the form prescribed for this purpose by the Minister, particulars of all his or her interests in respect of the period 1 April of the previous year to 31 March of the year in question. (3) Any other designated employee not contemplated in subregulations (1) and (2) shall submit to the relevant head of department, on a date and form directed by the Minister, particulars of all his or her interests for the period as may be directed by the Minister. (4) Any person who assumes duty as a designated employee on or after 1 April in a year shall make such disclosure within 30 days after assumption of duty in respect of the period from 1 April to date of disclosure. (5) The head of department or executive authority, as the case may be, shall ensure that the disclosure of interests by designated employees is submitted electronically to the Commission or the relevant authority as may be directed by the Minister in terms of subregulation (3), unless otherwise determined by the Minister. (6) An executive authority shall submit to the Commission a copy of the form submitted to the executive authority in terms of— (a) subregulation (2) not later than 31 May of the year in question; or (b) subregulation (4), in so far as it relates to a head of department, not later than 30 days after it has been so submitted. (7) A head of department shall submit to the Commission a copy of the form submitted to the head of department by a member of the SMS in terms of— (a) subregulation (1) not later than 31 May of the year in question; or 33 Ethics resource document (b) subregulation (4), in so far as it relates to a member of the SMS, excluding a head of department, not later than 30 days after it has been so submitted. Details of interests to be disclosed 19. The following details of interests shall be disclosed: (a) Shares, loan accounts or any other form of equity in a registered private or public companies and other corporate entities recognised by law: (i) The number, nature and nominal value of shares of any type in any public or private company and its name; and (ii) other forms of equity, loan accounts, and any other financial interests owned by an individual or held in any other corporate entity and its name. (b) Income-generating assets: (i) A description of the income-generating asset; (ii) the nature of the income; and (iii) the amount or value of income received. (c) Trusts: (i) The name of the trust, trust reference or registration number as provided by the Master of the High Court, and the region where the trust is registered; (ii) the purpose of the trust, and your interest or role in the trust; and (iii) the benefits or remuneration received (these include fees charged for services rendered). (d) Directorships and partnerships: (i) The name, type and nature of business activity of the corporate entity or partnership; and (ii) if applicable, the amount of any remuneration received for such directorship or partnership. (e) Remunerated work outside the employee’s employment in her or his department: (i) The type of work; (ii) the name, type and nature of business activity of the employer; (iii) the amount of the remuneration received for such work; and (iv) proof of compliance with section 30 of the Act must be attached. (f) Consultancies and retainerships: (i) The nature of the consultancy or retainership of any kind; (ii) the name, type and nature of business activity of the client concerned; and (iii) the value of any benefits received for such consultancy or retainership. (g) Sponsorships: (i) The source and description of direct financial sponsorship or assistance; (ii) the relationship between the sponsor and the employee; (iii) the relationship between the sponsor and the department; and (iv) the value of the sponsorship or assistance. (h) Gifts and hospitality from a source, other than a family member: (i) A description, value and source of a gift; (ii) the relationship between the giver and the employee; 34 Ethics resource document (iii) the relationship between the giver and the department; and (iv) a description and the value of any hospitality intended as a gift in kind. (i) Ownership and other interests in immovable property: (i) A description and extent of the land or property; (ii) the area in which it is situated; (iii) the purchase price, date of purchase and the outstanding bond on the property; and (iv) the estimated market value of the property. (j) Vehicles: (i) A description (make and model) of the vehicle; (ii) the registration number of the vehicle; and (iii) the purchase price, date of purchase and the outstanding amount owing on the vehicle. Confidentiality of submitted forms and register 20. (1) Subject to subregulation (3), only the following persons have access to a submitted form or the register: (a) The Minister; (b) the executive authority to whom the form is submitted; (c) the head of department to whom the form is submitted; (d) Commissioners of the Commission; (e) The Director-General: Office of the Public Service Commission; (f) The Director-General: Public Service and Administration; (g) The relevant designated ethics officer as contemplated in regulation 23; and (h) such other persons designated by the Minister, an executive authority, head of department or the chairperson of the Commission for purposes of record keeping and the effective implementation of this Part. (2) No person who has access to a submitted form or the register may, except when a court so orders, disclose any information in that form or register to anyone other than— (a) a designated employee in respect of his or her submitted form or an entry in the register in respect of that employee; or (b) another person who is permitted access in terms of subregulation (1) or to whom access is granted in accordance with subregulation (3). (3) Any person, other than a person contemplated in subregulation (1), may only be given access to a submitted form or the register in terms of section 11 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000). Conflict of interest 21. (1) In so far as conflict of interest relates to members of the SMS: (a) The Commission shall verify the interests disclosed. (b) If the Commission is of the opinion that an interest of a SMS employee disclosed in terms of regulation 18 conflicts or is likely to conflict with the execution of any official duty of that employee, it 35 Ethics resource document shall verify the information regarding that interest and refer the matter back to the relevant executive authority. (c) Upon the referral, the executive authority shall consult with the employee concerned on appropriate steps to remove the conflict of interest. (d) If the employee, after the consultation referred to in subregulation (1) (c), fails to take the appropriate steps to remove the conflict of interest, the executive authority shall instruct the relevant authority to take disciplinary action against the employee. (e) An executive authority shall, within 30 days after such referral, report to the Commission by— (i) stating whether any steps were taken; and (ii) if steps were taken, giving a description of those steps or providing reasons if no steps were taken. (2) In so far as conflict of interest relates to designated employees who are not members of the SMS: (a) The head of department shall verify the interests disclosed. (b) If the head of department is of the opinion that an interest of such designated employee disclosed in terms of regulation 18 conflicts or is likely to conflict with the execution of any official duty of that employee, he or she shall consult the employee concerned and, where possible, take appropriate steps to remove the conflict of interest. (c) If the employee, after the consultation referred to in subregulation (2)(b), fails to take the appropriate steps to remove the conflict of interest, the head of department shall take disciplinary action against the employee. (d) A head of department shall no later than 31 August of each year report to the Minister on— (i) the number of cases identified in terms of subregulation (2)(b); (ii) whether any steps were taken; (iii) if steps were taken, a description of those steps; and (iv) if no steps were taken, reasons thereof. Part 3: Anti-corruption and ethics management Anti-corruption and ethics functions 22. A head of department shall— (a) analyse ethics and corruption risks as part of the department’s system of risk management; (b) develop and implement an ethics management strategy that prevents and deters unethical conduct and acts of corruption; (c) establish a system that encourages and allows employees and citizens to report allegations of corruption and other unethical conduct, and such system shall provide for— (i) confidentiality of reporting; and (ii) the recording of all allegations of corruption and unethical conduct received through the system or systems; (d) establish an information system that— (i) records all allegations of corruption and unethical conduct; (ii) monitors the management of the allegations of corruption and unethical conduct; (iii) identifies any systemic weaknesses and recurring risks; and (iv) maintains records of the outcomes of the allegations of corruption and unethical conduct; and 36 Ethics resource document (e) refer allegations of corruption to the relevant law enforcement agency and investigate whether disciplinary steps must be taken against any employee of the department and if so, institute such disciplinary action. Designation of ethics officers 23. (1) An executive authority shall designate such number of ethics officers as may be appropriate, for the department to— (a) promote integrity and ethical behaviour in the department; (b) advise employees on ethical matters; (c) identify and report unethical behaviour and corrupt activities to the head of department; (d) manage the financial disclosure system; and (e) manage the processes and systems relating to remunerative work performed by employees outside their employment in the relevant department. (2) The head of department shall establish an ethics committee or designate an existing committee, chaired by a Deputy Director-General, to provide oversight on ethics management in the department. Other remunerative work by employees 24. An application by an employee to perform remunerative work outside his or her department shall be in accordance with the process determined by the Minister and in the form issued by the Minister.” 4.2.4 The Promotion of Access to Information Act (PAIA), 2000 The PAIA gives effect to section 32 of the Constitution by setting out how anyone can get access to information held by the state. By doing so, it promotes transparency and prevents government from operating in secret. 4.2.5 The Promotion of Administrative Justice Act (PAJA), 2000 The PAJA gives effect to section 33 of the Constitution. It ensures that decisions that affect the public are taken in a way that is procedurally fair and it gives people the right to request written reasons for decisions they disagree with. In this way, it creates greater transparency. 4.2.6 Protected Disclosures Act (PDA), 2000 The PDA was passed to encourage employees to disclose information about unlawful and irregular behaviour in the workplace. It offers protection from victimisation for “whistle-blowers”, as long as they meet the requirements and follow the procedure set out in the Act. 37 Ethics resource document 4.2.7 Prevention and Combating of Corrupt Activities Act (PRECCA), 2004 The PRECCA provides the legal definition of corruption and creates a range of offences relating to possible conflicts of interest and other unacceptable conduct. It also allows for people to be “blacklisted” and it requires senior officials to report corrupt activities. 4.2.8 Public Administration Management Act (PAMA), 2013 The PAMA promotes the basic values and principles governing the public administration referred to in section 195(1) of the Constitution and mandates the Minister to prescribe minimum norms and standards regarding ethics, integrity, discipline and the disclosure of financial interest (Chapter 7). It makes provision for the development of a Public Administration Ethics, Integrity, Disciplinary Technical Assistance Unit (Chapter 6) that will provide technical assistance on managing ethics in the Public Administration. The PAMA requires (section 8) that Public Servants be prohibited from conducting business with the State. It also requires (section 9) of all employees to disclose their financial interests. 4.2.9 Other important prescripts Public Service Anti-corruption Strategy, 2002 aimed at fighting corruption in a holistic and preventative manner. It contains proposals for the review and consolidation of the legislative framework relating to corruption, to increase institutional capacity to fight corruption, to improve access to report wrongdoing and for protecting whistle-blowers and witnesses, and for the managing of professional ethics. Minimum Anti-Corruption Capacity Requirements approved Sept 2003 by Cabinet require of departments to create and promote an ethical organisational culture and to provide guidelines on how members should behave. This called for the appointment of an “ethics champion.” To fight corruption, each accounting officer must focus on and analyse corruption risk as part of the risk assessment required in terms of the PFMA, must implement the fraud prevention plans required in terms of the PFMA, must verify previous employment, qualifications, citizenship and criminal records of all persons before they are employed, must establish a hotline system, and must establish an information system that records allegations. These requirements were incorporated in the Public Service Regulation, 2016 (Chapter 2, Code of Conduct Part 3). The Public Finance Management Act, (PFMA) 1999 and the Municipal Finance Management Act, 2003 set out the requirements for dealing with public finances at the national, provincial and local government’s level. Section 2 of the PFMA defines its objective as follows: “to secure transparency, accountability, and sound management of the revenue, expenditure, assets and liabilities of te institutions to which this Act applies.” It further prescribes that an employee who commits an act that undermines the financial management and internal control systems, or makes or permits irregular, 38 Ethics resource document wasteful or fruitless expenditure is guilty of financial misconduct. Such an employee can be punished with a 5 years jail term and/or fine and may be held personally liable if he or she was grossly negligent. The PFMA also prescribes that all audit components should have a fraud prevention plan, that all cases of financial misconduct must be reported, and that audit components must report on the action taken in incidences of misconduct. The Public Service integrity Management Framework (Framework), 2013 aimed to close identified gaps in existing legislations guiding Public Servants’ conduct. The Framework provided clear guidance on the kind of behaviour expected from Public Servants. The requirements of this Framework were incorporated in the Public Service Regulations, 2016 (Chapter 2, Code of Conduct, Parts 1 and 2). 5. Approaches to ethics management 5.1 Ethics management How does one manage ethics? All Public Servants should manage their own conduct. This mean that we should adhere to rules outlining expected good behaviour, but also reflect on the impact of our conduct in order to ensure only “good” to the public. In the Public Service, managers have a responsibility to set the ethics tone by their exemplary behaviour. Managers should also take action against unethical behavior and reprimand unethical conduct. Besides these legislative and regulatory responsibilities there is a general moral responsibility on all Public Servants to behave ethically and to provide ethical leadership. The goal of ethics management is to define and give life to an organisation’s guiding values, to create an environment that supports ethically sound behaviour, and to instill a sense of shared accountability among employees. The need to obey the law is viewed as a positive aspect of organisational life, rather than an unwelcome constraint imposed by external authorities. In order to do this, an organisation needs to create ethics infrastructure (an ethics champion ethics committee and ethics office) that will manage ethics on a daily basis. This is provided for in the Code of Conduct. 5.2 Approaches to ethics management Ethics must be incorporated in the strategy of the organisation. As such, the ethics office should report to leadership on progress made in terms of delivering on the ethics programme of the organisation. There are three basic approaches to ethics management: 39 Ethics resource document Compliance-based approaches; Values-based approaches; The Organisational Integrity approach, which integrates compliance and values-based approaches. Each of these approaches has advantages and disadvantages. Ideally, one wants to tap into the benefits and steer clear of the disadvantages. This often means that one needs to combine compliance interventions with more values-driven strategies. But, this will depend on the maturity of the organsiation. Compliance-based approaches aim at establishing regulated environments (in terms of systems, policies and procedures) that would meet the demands of national and international best practice. The main benefits of this kind of approach are that it establishes clear guidelines for checks and balances that exist to combat corruption; it clarifies role responsibility and chains of accountability; it reduces misunderstanding and ambiguity; and it makes misconduct easier to prosecute. It is clear that a compliance-based approach has much to offer. The reality is however that these policies and procedures cannot possibly cover every foreseeable form of misconduct. Furthermore, policies and procedures are often not adhered to. Where they are not supported by an ethical culture, rules are ‘bent’ for arbitrary reasons and transparent processes do not become institutionalised. Values-based approaches on the other hand focus on equipping employees with the necessary tools to make sound ethical decisions, rather than focusing on rules and policies. These approaches generally leave a lot of discretion to employees, and the success of such an approach is dependent on the level of internal commitment that each employee has to uphold the values of the organisation. On the downside, if the focus is only on values, there are many grey areas. It becomes very difficult to institute disciplinary action when there is no specific rule that has been breached. The organisational integrity approach4 combines compliance and values-based approaches. Such approaches are designed to base an organisation’s policy framework on a sound values framework. It places values at the centre of all organisational activities. This means that individuals must understand that certain organisational practices, policies and procedures exist because they protect or nurture certain values within the organisation. For example, the procurement practice of having separate bid specification, evaluation, and adjudication committees exists to protect the values of objectivity, transparency and fairness. These values ensure that corruption does not take place and that the public gets the best quality services at the best price. The values therefore support the policies and procedures of the organisation, and provide the employee 4 Term coined by the Independent Commission Against Corruption (ICAC). 40 Ethics resource document with a way of thinking about what is right or wrong, even in cases where there is no specific policy or procedure that applies. Compliance with procedures and consideration of values are two sides of the same coin. TABLE 2: SUMMARY TABLE OF APPROACHES TO ETHICS MANAGEMENT Compliance approach Values approach Organisational integrity approach Rule-based (emphasis) Values-based (emphasis) Balances values and rules - Policies and procedures / controls - Ethical culture - Shows the link between values and rules Prevent unethical conduct Promote ethical behaviour Both - promote ethical conduct without tolerating unethical conduct (zero tolerance) External enforcement Internal commitment Internal commitment, but with Formal accountability Personal responsibility external enforcement structures in place First generation5 company Second generation* Third generation* company Reactive company Integrated, holistic Proactive Without grounding in values, Without compliant conduct, Challenge to explicitly ground compliant conduct is blind internal commitment to structures, policies, (undirected, directionless, goalless) values is empty (without procedures, actions, and content, hollow) compliance in values and ideals The approach an organisation takes, will depend on the level of maturity of the organisation. This will be determined by performing an ethics risk assessment. If the organisation still struggles to get its employees to comply with basic rules, a compliance approach can be adopted. However, this approach should be revisited often, so as not to discourage employees when they are beginning to comply with the rules. However, the ultimate goal should be to progress towards the organisational integrity approach (especially as we as Public Servants should manage our own ethics). In an ethical organisation employees will do the right thing for the right reasons – not just because the rule says so. An excellent compliance programme can put good policies in place, but cannot guarantee buy-in. A values-driven approach can foster discretion and moral imagination, communicate trust and empower people. If employees understand the ethical reasons behind policies and procedures, they will be able to act 5 Rossouw, D., & Van Vuuren, L. (2010). Business Ethics (4th edn.) Cape Town: Oxford University Press. 41 Ethics resource document ethically even when there is no policy or procedure to direct behaviour in a specific case. Rules influence individuals’ behaviour, but values are what change the culture. Values can take an organisation’s compliance programme beyond a set of policies, towards the creation of an ethical culture. 6. Ethics management framework Ethics should not be managed merely as a compliance exercise. Without strong leadership commitment and integration into the organisation, ethics management can have resource costs without any apparent benefits. A good ethics management programme must contribute to the department achieving its objectives as set out in its service delivery standards. To achieve this, ethics management should not operate in isolation, but should be integrated into the core business of the department. An ethics management framework therefore refers to “all interventions at strategic, systems and operational levels, which are intended to improve organisational ethics” (Ethics Reporting Handbook, Ethics Institute of South Africa). Figure 9 below, developed by EthicsSA, shows a generic ethics management framework that is aligned to King II and the Public Service Integrity Management Framework: FIGURE 8: THE PUBLIC SERVICE INTEGRITY MANAGEMENT FRAMEWORK As indicated, ethics management refers to all organisational interventions aimed at creating and maintaining an ethical organisational culture. It includes the following aspects: 42 Ethics resource document  The first and most important aspect of successful ethics management is strong leadership commitment that sets a clear ethical tone.  The department’s leadership should establish ethics structures(such as an ethics committee and an ethics office)and assign responsibilities for managing ethics (for example – to an ethics champion and an ethics officer),  These structures and people should oversee and implement the following ethics management process: a. Ethics risk assessment: An ethics risk and opportunity assessment should be conducted to ensure that the department understands its ethics risk profile; b. Strategy: A strategy and plan for managing ethics in the department must then be formulated; c. Code and policies: The departmental code of ethics (or values statement), and other relevant policies must be developed, or revised, to ensure that the identified risks are addressed; d. Institutionalisation: The ethics management strategy and plan must be implemented to ensure that everyone in the department consistently acts in line with the departmental values and standards; e. Monitoring and reporting: The ethics officer should report to the ethics committee on progress with the ethics management plan, and the state of ethics in the organisation.  There should be independent assessment of the ethics management processes (for example by internal audit) and of the ethics management reports (for example by the Auditor General). This should then be reported to external stakeholders in the appropriate reports, such as annual reports.  The end goal is the establishment of an ethical culture that supports a professional public service ethos and high standards of integrity in the department. 7. Leadership commitment Leadership commitment in this context refers to the strength of conviction that leaders have of the importance of ethics. It implies a commitment to ethical values, as well as courage to stand by those values. 43 Ethics resource document The basic values and principles of public administration are set out in section 195 of the Constitution, and most of these values Batho Pele Principles: are also contained in the Batho Pele principles. The  Consultation Constitutional ideals are to:  Service standards  Redress  Promote and maintain high standards of  Access  Courtesy professional ethics;  Information  Provide service impartially, equitable and without  Transparency bias;  Value for money.  Utilise resources efficiently and effectively;  Respond to people’s needs; and  Render an accountable, transparent and development-orientated Public Administration The Batho Pele Principles can be seen as the stated values. They are printed on posters and formally communicated. These stated values can however differ from the actual values of an organisation. The tone set by a department’s leadership will largely determine what the actual values of the organisation will be. This tone can vary from pro-actively supporting the stated values (and an ethical culture), to contradicting them. This means that without visible leadership commitment it will be difficult to create an ethical culture in any organisation. Ethical leadership requires that leaders should not only act ethically themselves, but also create an environment that makes it eas

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