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Non-Compliance with External Control Measures in Selected Case Studies Within the National Sphere of the Public Sector

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Non-Compliance with External Control Measures in Selected Case Studies Within the National Sphere of the Public Sector View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Cape Peninsula University of Technology NON-COMPLIANCE WITH EXTERNAL CONTROL MEASURES IN SELECTED CASE STUDIES WITHIN THE NATIONAL SPHERE OF THE PUBLIC SECTOR by YASMIN NANABHAY Thesis submitted in fulfilment of the requirements for the degree Master of Technology: Public Management in the Faculty of Business and Management Sciences at the Cape Peninsula University of Technology Supervisor: Professor HH Ballard Cape Town December 2014 ACKNOWLEDGEMENTS First and above all, all praise be to God, the Beneficent, the Merciful, for providing me with the strength and the capability to proceed successfully with this thesis. I found profound wisdom in the following words of another traveller: She looked back and marvelled how far she had come...she didn’t wonder how she made it… she already knew the answer. Only with God’s help had she powered through. For without His strength, she could do nothing… (Anon, sourced from Women Who Changed the World quotes) I wish to thank the following people who supported me during the extraordinary journey of researching and writing up this thesis: My supervisor, Professor H.H. Ballard, for his thoughtful guidance, constructive criticism and continued support throughout; and My family, that is, my partner, Shaheed, and my daughters, six-year old Lameez, and one-year old twins, Zaria and Zahara, for their great patience, unconditional love, support and understanding throughout. You are my inspiration. DEDICATION For the people of South Africa ABSTRACT Ethical conduct displayed by members of the public sector is integral to creating a sustainable democratic government, which upholds the constitutional tenets of accountability, transparency and professional ethicality. Furthermore, a true constitutional democracy emphasises and advocates the notion of service leadership that nurtures public participation and engages with citizens in a positive manner. Ethical conduct in the public sector earns public trust; it is hence a key principle in good governance. Yet, in the years since the advent of democracy in South Africa, the government has been plagued by rampant corruption and maladministration by public officials and politicians in leadership positions. The external control measures passed by government in an attempt to ensure ethicality and accountability within the public sector include codes of ethics, rules of conduct and the enactment of legislation. These are intended to shape the mindset of members of the public sector, with the ultimate aim of an efficient, effective, ethical and responsive public service. The purpose of the current study is to analyse non-compliance with external control measures within the public sector by means of selected case studies and to present the reasons for this occurrence. The three cases selected are: the South African Arms Deal, the corruption trial of Jackie Selebi, and the investigation of Bheki Cele regarding irregularities in the procurement of SAPS assets, the latter two who served as National Commissioners of the South African Police Service but were each dismissed from that post. The reasons for non-compliance with external control measures in the public sector as well as recommendations based on the findings to improve compliance will be undertaken. The three case studies demonstrate the experience and impact of corruption and/or maladministration, which have contributed to the increasing loss of confidence in political leadership in the country as elsewhere in the world. A qualitative methodology of inquiry, including a review of literature covering the theories applied to the case studies will be employed. Owing to the subject nature of the current study, the findings will be validated by an independent source, which has been identified as the Office of the Public Protector. CONTENTS Declaration…………………………………………………………………………… i Abstract………………………………………………………………………………. ii Dedication…………………………………………………………………………… iii Acknowledgements……………………………………………………………...... iv List of Figures……………………………………………………………………… viii List of Tables……………………………………………………………………….. ix List of Abbreviations…………………………………………………………….... x CHAPTER ONE BACKGROUND AND CONTEXT OF STUDY…………………………………… 1 1.1 Introduction………………………………………………………………………. 1 1.2 Preliminary Literature Review………………………………………………….. 5 1.2.1 Public sector powers………………………………………………….. 5 1.2.2 Public sector ethics……………………………………………………. 5 1.2.3 Chapter 9 institutions and public sector oversight laws………........ 7 1.2.4 Principles of good governance in King II: Accountability, efficiency, openness, transparency, honesty and integrity …………………………………………………… 8 1.3 Purpose Statement ……………………………………………………………….. 10 1.4 Research Question ………………………………………………………….. ….. 10 1.5 Research Methodology ………………………………………………………….. 10 1.5.1 A theory-making and inductive approach ………………………. ….. 10 1.5.2 A Case Study Approach ………………………………………………. 14 1.5.2.1 The case studies selected for study ………………………. 15 1.5.2.1.1 Case study 1: The Arms Deal …………………… 15 1.5.2.1.2 Case study 2: Jackie Selebi …………………….. 17 1.5.2.1.3 Case study 3: Bheki Cele ……………………….. 18 1.5.3 Validation of Research …………………………………………......... 19 1.6 Research Design ……………………………………………………………….. 21 1.7 Analysis…………………………………………………………………………… 23 1.8 Significance of the Study……………………………………………………….. 23 1.9 Key Words……………………………………………………………………….. 24 1.10 Organisation of Chapters……………………………………………………… 25 CHAPTER TWO CONSTITUTIONAL AND LEGISLATIVE DIRECTIVES AND FRAMEWORKS AND CODES OF CONDUCT AND ETHICS GOVERNING THE SOUTH AFRICAN PUBLIC SECTOR………………………. 29 2.1 Introduction…………………………………………………………………………. 29 2.2 The Constitutional Framework in South Africa pertaining to Good Conduct of Public Officials……………………………………………………. 30 2.3 Chapter 9 institutions……………………………………………………………… 31 2.3.1 The Public Protector…………………………………………………………….. 33 2.3.2 The Auditor-General…………………………………………………………….. 34 2.4 The Legislative Framework in South Africa pertaining to Good Conduct of Public Officials…………………………………………………… 35 2.4.1 The Special Investigating Unit (SIU)………………………………….. 35 2.4.2 The National Prosecuting Authority (NPA)………………………....... 36 2.4.3 Prevention and Combating Corrupt Activities Act (PCCAA)……….. 37 2.4.4 The Public Service Commission (PSC)………………………............ 38 2.5 Public Finance Control Measures………………………………………………. 39 2.6 Codes of Conduct and Ethics…………………………………………………….. 43 2.6.1 The importance and rationale of codes and the general content of a code of conduct………………………………………….. 44 2.6.2 The South African Code of Conduct for the Public Service…............ 44 2.6.3 The King Reports for maximising codes governing the public service……………………………………………………… .. 46 2.6.4 Code of conduct versus code of ethics………………………………… 47 2.7 Conclusion to Chapter………………………………………………………….… 50 CHAPTER 3 ETHICS: DEFINITIONS, PERSPECTIVES, THEORIES AND CODES….......... 51 3.1 Introduction………………………………………………………………….......... 51 3.2 Some Definitions of Ethics……………………………………………………...... 51 3.3 Perspectives on Ethics…………………………………………………………… 53 3.4 Theories of Ethics…………………………………………………………………. 55 3.4.1 Duty-based ethical theory………………………………………………. 56 3.4.2 Consequence-based ethical theory…………………………….…….. 56 3.4.3 Social contract-based ethics theory…………………………………… 57 3.4.4 Character-based ethical theory………………………………………… 58 3.5 Ethical Relativism……………………………………………………………......... 60 3.5.1 Procedural fairness and the law in ethical practice……………......... 60 3.5.2 Distinction between ethics, values and morals…………………........ 62 3.6 The Value of Ethics in the Drafting of Codes to Promote Good Conduct for Good Governance……………………………………….. 64 3.7 Conclusion to Chapter .…………………………………………………………… 70 CHAPTER FOUR PRINCIPLES OF GOOD GOVERNANCE ……………………………………….... 71 4.1 Introduction ……………………………………………………………………….. 71 4.2 Formation of the Institute of Directors (IoD) …………………………………… 71 4.3 Rationale for the Release of the King Report on Governance in South Africa, 2002 (King II) ……………………………………………………. 71 4.4 Seven Principles of Good Governance …………………………………………. 72 4.4.1 Transparency ……………………………………………………………………. 73 4.4.2 Accountability ……………………………………………………………………. 75 4.4.3 Discipline …………………………………………………………………………. 77 4.4.4 Independence …………………………………………………………………… 77 4.4.5 Responsibility ……………………………………………………………………. 77 4.4.6 Fairness ………………………………………………………………………….. 77 4.4.7 Social Responsibility …………………………………………………………… 77 4.5 The Universal Application of Good Governance ………………………………. 78 4.6 Conclusion to chapter ………….. ………………………………………………… 78 CHAPTER FIVE CASE STUDY 1: THE SOUTH AFRICAN ARMS DEAL…………………………. 79 5.1 Introduction………………………………………………………………………... 79 5.2 The Various Controversies Surrounding the Arms Deal……………………… 79 5.2.1 Allegations of corruption……………………………………………….. 80 5.2.2 Controversy over the reasons to acquire additional armaments …………………………………………………. 81 5.2.3 Controversy regarding offsets in the Arms Deal……………………… 84 5.3 The Unconstitutional Aspects of the Arms Deal………………………………… 85 5.3.1 Relevant sections in the Constitution (1996)…………………………. 86 5.3.2 Contradiction in the Arms Deal with regard to Chapter 9 Institutions…………………………………………………. 90 5.3.2.1 The Arms Deal with regard to the Public Protector……….. 91 5.3.2.2 The Arms Deal with regard to the Auditor-General………. 92 5.4 Conclusion to Chapter…………………………………………………………….. 95 CHAPTER SIX CASE STUDY 2: JACKIE SELEBI………………………………………………….. 98 6.1 Introduction………………………………………………………………………… 98 6.2 Case Background………………………………………………………………….
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