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THE recent investigation by the Public Protector into allegations of impropriety on the part of South Africa's national commissioner of police – allegedly involving himself in a contract worth R500m for new police headquarters – raises many questions.
The report by the Public Protector seriously questions General Cele's role and concludes he was guilty of maladministration as well as improper and unlawful conduct.
Government has still to respond to the findings in the report, although the need to study carefully its significance hasn't stopped Cele from coming out firing on all cylinders against it.
What all public servants – especially middle and upper categories – should do is study Public Protector Madonsela's report and discuss among themselves how it impinges on their work. Because it's highly relevant to their work.
One of the most significant of governance aspects is the way discretionary powers are exercised. Citizens are affected in multiple ways every day of their lives as legislation confers power or authority on government bodies to either provide and regulate benefits or impose liabilities on citizens.
In totalitarian countries there's no problem as to how a matter is decided. The state and its organs decide. But in a democracy that's not good enough. In some cases the state has to be the final arbiter if the matter touches on security or safety. In other cases, there's a choice.
Business Day, in a magisterial editorial the other day, opined that if the ANC finds itself in some difficulty the solution is to transfer the issue to Pretoria and let the public servants decide. The newspaper isn't correct.
There have been a number of issues since 1994 when the state has decided to transfer decision-making to an outside body. The most dramatic example was when social security applicants were removed from the purview of the provinces and transferred to an "independent" body. Whether that's worked in bringing about a speedier or more sensitive approach is a different matter.
Another example is the whole area of income tax. One of the more reprehensible decisions of the English courts was to distinguish between tax avoidance (permissible) and tax evasion.
A whole bevy of tax consultants and advisers has grown up to deal with that issue. The revenue commissioners decide the taxable income of the taxpayer, but the latter may appeal on certain grounds to the high court. Here, the excuse of discretion is trammelled by a higher authority having the final say.
The reason why the revenue collectors enjoy such a high degree of acceptance is because they've been freed from the shackles of the public service.
There's no doubt about the effectiveness of the tax collecting machinery – speedy, accessible and innovative with, for example, the budget for 2011 being distributed to taxpayers as a pocket guide through daily newspapers, together with a covering letter from the commissioner: a unique example of reaching out, when the commissioner states the budget is a central part of the "social contract" between government and its (sic) people.
This area of how to regulate discretionary powers is complex, sensitive and economically important. All three of those values were present when I encountered the issue of permits to extract water. We were in the throes of drafting what was to become the National Water Act of 1998.
When I enquired as to how permits were provided to those who applied, I was referred to an official, who informed me it would take between four to five years to go through all the applications.It was then I proposed the issue of permits should be decentralised through the catchment management areas to be set up.
I can't understand how mining and prospecting hearings can be disposed of without similar community involvement. Currently, applications are referred to regional environmental bodies. Well, in Mpumalanga such a body has received 1 775 applications. How they can be disposed of either without a cursory look or likely ignoring grassroots feelings?
Obviously, there can't be an appeal after every administrative decision: the system would be clogged. In the matter of Cele, the Public Protector looked at the way he behaved and found an egregious example of maladministration.
Bully for Madonsela.
* This article was first published in Finweek.
* To read more Finweek articles, click here.
The report by the Public Protector seriously questions General Cele's role and concludes he was guilty of maladministration as well as improper and unlawful conduct.
Government has still to respond to the findings in the report, although the need to study carefully its significance hasn't stopped Cele from coming out firing on all cylinders against it.
What all public servants – especially middle and upper categories – should do is study Public Protector Madonsela's report and discuss among themselves how it impinges on their work. Because it's highly relevant to their work.
One of the most significant of governance aspects is the way discretionary powers are exercised. Citizens are affected in multiple ways every day of their lives as legislation confers power or authority on government bodies to either provide and regulate benefits or impose liabilities on citizens.
In totalitarian countries there's no problem as to how a matter is decided. The state and its organs decide. But in a democracy that's not good enough. In some cases the state has to be the final arbiter if the matter touches on security or safety. In other cases, there's a choice.
Business Day, in a magisterial editorial the other day, opined that if the ANC finds itself in some difficulty the solution is to transfer the issue to Pretoria and let the public servants decide. The newspaper isn't correct.
There have been a number of issues since 1994 when the state has decided to transfer decision-making to an outside body. The most dramatic example was when social security applicants were removed from the purview of the provinces and transferred to an "independent" body. Whether that's worked in bringing about a speedier or more sensitive approach is a different matter.
Another example is the whole area of income tax. One of the more reprehensible decisions of the English courts was to distinguish between tax avoidance (permissible) and tax evasion.
A whole bevy of tax consultants and advisers has grown up to deal with that issue. The revenue commissioners decide the taxable income of the taxpayer, but the latter may appeal on certain grounds to the high court. Here, the excuse of discretion is trammelled by a higher authority having the final say.
The reason why the revenue collectors enjoy such a high degree of acceptance is because they've been freed from the shackles of the public service.
There's no doubt about the effectiveness of the tax collecting machinery – speedy, accessible and innovative with, for example, the budget for 2011 being distributed to taxpayers as a pocket guide through daily newspapers, together with a covering letter from the commissioner: a unique example of reaching out, when the commissioner states the budget is a central part of the "social contract" between government and its (sic) people.
This area of how to regulate discretionary powers is complex, sensitive and economically important. All three of those values were present when I encountered the issue of permits to extract water. We were in the throes of drafting what was to become the National Water Act of 1998.
When I enquired as to how permits were provided to those who applied, I was referred to an official, who informed me it would take between four to five years to go through all the applications.It was then I proposed the issue of permits should be decentralised through the catchment management areas to be set up.
I can't understand how mining and prospecting hearings can be disposed of without similar community involvement. Currently, applications are referred to regional environmental bodies. Well, in Mpumalanga such a body has received 1 775 applications. How they can be disposed of either without a cursory look or likely ignoring grassroots feelings?
Obviously, there can't be an appeal after every administrative decision: the system would be clogged. In the matter of Cele, the Public Protector looked at the way he behaved and found an egregious example of maladministration.
Bully for Madonsela.
* This article was first published in Finweek.
* To read more Finweek articles, click here.
