Public Protector tells Public Accounts Committees non-compliance is a problem
The Public Protector, Adv. Thuli Madonsela told Public Accounts Committees bodies within the oversight sector need to constitute themselves into a united front against maladies such as non-compliance with laws and regulations, which constitute maladministration. Through a united front for good governance, oversight bodies can ensure that an accountable state that operates with integrity while being responsive to the needs of all people in the republic, she said.
The Public Protector was addressing the Association of Public Accounts Committees Conference today in Port Elizabeth under the topic: Recourse to non-compliance with laws and regulations governing the use of public resources.
Adv Madonsela said: “The Auditor General’s annual reports tell us that we have a serious compliance problem. A report issued by Minister of Monitoring and Evaluation in the Presidency, Minister Chabane a few days ago tells the same story about most organs of state. Our own Public Protector reports are usually littered with stories of non compliance.”
She told the Conference that the problem was not inadequate laws as the country had a great Constitution and an abundance of laws. On the enforcement front, she said, the country was not short of enforcement bodies. The key lies in the enforcement bodies utilising their powers fully while the top leadership in government abides by the rule of law, she said.
The Public Protector said: “The bottom line is that when rules are ignored or broken there must be accountability. When there is no such accountability, rule-breaking becomes normative and eventually part of the organisational culture.”
She lamented the fact that the recurring theme in her four years as Public Protector was the curse of impunity, saying when there were no consequences, many people went ahead and engaged in wrongdoing. The Public Protector pointed out that terms such as unauthorized expenditure, fruitless and wasteful expenditure, irregular award of a contracts did not seems to concern officials.
She indicated that there was an abuse of deviation processes, where urgency requirements are used when there is no urgency or the urgency has passed.
The Public Protector added that there were cases of plain criminality in the form of corruption and fraud, with forged company profiles, including number of years in business, previous projects and employees. Tax clearance certificates were also either forged or swapped.
“Modern Corruption rarely involves bribes. The wrongdoers usually use a concept referred to as ‘warehousing’. A proxy that cannot be picked up from the CIPC data base by surname is said to be used as a proxy to hold shares or the interest of the decision maker to avoid the latter’s interest being easily dictated.
“Occasionally, a bribe is required. We are finalising a case of that nature. To fund the bribe though, the state must be overcharged. Accordingly, overcharging, overbilling and double billing are common complaints in respect of many of the tenders or it must be noted that overbilling and scope creep would not be possible if rules were obeyed.
“In this regard, the relevant prescripts fall under a category of procurement or supply chain processes relating to what is referred to as demand management. Even overcharging would not be possible if demand management were to be adhered to as the rules require market testing and budget securing before going out on tender,” the Public Protector said.
She cited a case whereby state organs did not have policies or guides so that no rules were broken. The case related to Gamagara Municipality in the Northern Cape, whose report she released last week.
She said: “Deviations from normative practices were justified on the absence of policies on key things such as staff transport allowances, accommodation allowances, recruitment and allocation of community land, among others. This is a recipe for bad administration including corruption. An equally problematic situation is that of organs of state developing own policies giving employees benefits outside the broader regulatory framework or industry good practice.”
Ethical violations were a common feature of complaints against members of the executive at national, provincial and against mayors and councilors, particualry the issue of managing conflict of interest due to lack of appreciation of ethics and absence of an overarching national code of ethics.
The Public Protector further said that there were no consequences for service failures which are also a common feature regarding non-compliance. She told of a case whereby a young man in KwaZulu Natal missed out on a university scholarship because Home Affairs could not rectify his ID which was duplicate.
Last week the Public Protector a grandmother who complained that at 67 years of age, she was not getting the old age grant because Home Affairs issued her with an ID that indicated that she was born in 1964 when she was born in 1946.