The answer to these and many other vexing questions concerning non-delivery by the state is that there is a lack of accountability in the public administration of South Africa. This runs from top to bottom. It is destructive of the goals of our Constitution and threatens to take the country onto the dusty and potholed low road into the future. There is a lack of acceptance of the value system nationally agreed and incorporated into the Constitution as foundational to our new order – openness and responsiveness to the needs of the people are right up there with dignity, equality and freedom as guiding values.

Accountability itself is a constitutional value, one which binds our civil service. Section 195(1)(f) of the Constitution spells this out in no uncertain terms It reads:

"Public administration must be accountable."

What then were our constitutional founders insisting on in such a peremptory manner? Accountability means something more than ethical behaviour in all spheres of government, at organs of state and in public enterprises. It also means more than efficiency and effective use of resources. Impartiality, fairness and equity, responsiveness to public needs and transparency are also all basic values which govern the public administration but do not describe accountability itself. All this can be gathered from a reading of section 195 as a whole, where the precepts just listed are also singled out for specific mention. Nevertheless, the principle of accountability ought to suffuse the public administration.

The Courts have had occasion to consider the pervasive lack of accountability in the public administration. Prison conditions have been judicially described as not fit for dogs. The social welfare administration of the Eastern Cape has been labeled: "terminally lethargic" by the Supreme Court of Appeal. Whenever the TAC litigates against the Health Department, irrespective of the number of appeals, it wins hands down.

It is in the Constitutional Court that the notion "accountability," as used in the Constitution, has received the closest analysis. Judge O’Regan, writing for a unanimous Court in the rail commuters case against Metrorail had the following to say :

"Accountability of those exercising public power is one of the founding values of our Constitution…. [T]he value is asserted within the scheme of the Bill of Rights…. It is one of the objects of the Bill of Rights to require those limiting rights to account for the limitations. The process of justifying limitations, therefore, is one which is relevant to a consideration of the 'spirit, purport and objects of the Bill of Rights'..The principle that government, and organs of state, are accountable for their conduct is an important principle that bears on the construction of constitutional and statutory obligations..."

If the public administration does not take a long hard look at itself and get to grips with the requirements of accountability, further deterioration is inevitable. This could have catastrophic consequences for the country. Consider the words of a former foreign minister of Sierra Leone, uttered in 1991, shortly before the overthrow of his government:

"We have a tendency to confuse problems and situations. The electricity supply did not deteriorate to its present state overnight; it gradually got worse while we bought candles. There were holes in the roads – small ones to begin with – that gradually got bigger as we drove around them. The electricity supply and roads should have been dealt with as soon as the problems became apparent. But we did nothing. Instead of dealing with the problems, we simply accepted them as situations that we should adapt to."

It is striking that the crisis in Zimbabwe is still called a "situation" by some to this day.

The report of the task team set up by the South African Government to investigate the creation of a single civil service frankly concedes inconsistency, incoherence and lack of accountability in what it calls "the current government configuration."

The ability, objectivity and fairness of all civil servants need to be assessed. Those who are unable to give a satisfactory account of themselves must be given the opportunity of mending their ways (with help in the form of training, mentoring and education, if necessary) and in the absence of improvement, they must make way for those who are willing and able to act accountably. This applies particularly in the education sector which employs the biggest single category of civil servants as teachers. For about 20 years evaluation of the performance of teachers on a systematic basis has been conspicuous by its absence in South Africa. This is unique in the civilized world. Fortunately, our education policy-makers are alive to the problem and are devising a system of evaluation in national education to address it in due course.

In the meantime, it is up to the public to complain – loud and long if required – whenever civil servants act as if they are not answerable to their employers – the public. This does not only apply to teachers who do not teach properly, surly clerks at home affairs, arrogant managers in local government but, indeed, to any public servant encountered who is not delivering. All ought to be brought to book. The public can do this by complaining to the superiors of the miscreant concerned, all the way to ministerial level in appropriate cases. There are constitutionally created Chapter Nine institutions such as the Human Rights Commission and the Public Protector to take up the cudgels on behalf of the public, if the initial complaint is ignored or not dealt with satisfactorily. Some bigger municipalities have an ombud office for complaints. If nobody complains these useful institutions go under-utilised. Worse still, wrongdoers get away scot-free.

The inculcation of a culture of accountability in the public administration is long overdue. It simply does not wash when dignity, equality and freedom for all are prejudiced by civil servants who are neither civil nor of service. The non-payment of social security grants that are due to the poorest of the poor, the increase in the percentage of public schools without libraries to over 80% and rampant crime are but a few examples of the violation of constitutionally guaranteed human rights by an administration that is not responsive to the needs of the people and is not acting accountably. The miserable excuse of "capacity constraints", which is trotted out whenever public funds go unspent and have to be returned to the Treasury, has to be regarded as unacceptable in any truly accountable public administration. The illegal practice of cadre deployment in the public administration must cease; merit - based on ability, objectivity and fairness - needs to be properly taken into account in making appointments in accordance with sound human resource management practices. Politics and public service are not profit driven, or should not be, they exist to serve the needs of the people.

The rapid approach of the year 2010, and with it all of the challenges which hosting the world cup soccer tournament in less than 500 days will bring, can be used to provide the necessary impetus toward accountability. This could see a public administration which takes proper cognizance of s 195 and of its constitutionally imposed duties and its role in building a new South Africa of which all can be justly proud.

Paul Hoffman SC
Senior Advocate of the High Court.
Cape Town,
27 January 2009.

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