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Municipal Parallel Universes
It is beyond dispute that the dysfunction in the municipal sphere of government is endemic. If a municipality as acclaimed as Cape Town can not provide 100,000 of its residents with any form of sanitation, smaller and less well endowed municipalities have bigger problems. The fact that only 32 out of 970 sanitation works in the country are actually functioning satisfactorily says it all.President Zuma himself has complained recently of cynicism, laziness and incompetence in the public administration. These characteristics, which, many observers agree, accurately describe the situation on the ground in municipalities everywhere, strongly suggest that the incompetent and lazy cynics in their employ lack the ability to deliver municipal services in the first place.
This is what has spawned the National Taxpayers Union. It takes the attitude that the municipal employees so accurately described by the President are beyond redemption and it organises alternative ways of ensuring that its affiliates get the services that they need in order the keep their towns and villages from collapsing into free flowing raw sewage running down potholed roads.
The Wages of Quiet Diplomacy
The long running campaign by Free State farmer, Crawford von Abo, to obtain redress following the illegal seizure of his farms in Zimbabwe by the Mugabe regime, raises interesting points.Von Abo approached the South African authorities for diplomatic assistance to help him assert his property rights in Zimbabwe. His entreaties fell on deaf ears. The High Court, in an earlier judgment ruled in his favour, declaring that he is entitled to the diplomatic assistance he seeks and ordering the Government to report back to it within 60 days on assistance rendered.
It is not clear whether the government chose not to understand the import of the order granted against it or genuinely misconstrued it. Von Abo remains without any meaningful diplomatic assistance, without his seized properties and without any compensation for the lot that has befallen him by reason of his ill fated investments in Zimbabwe coupled with the disappearance of the rule of law in that unfortunate country.
The ten commandments of good tender practice
A list of commandments which are all violated routinely in the essentially corrupt tender processes South Africa is exposed to by its current public administration.Section 195(1) of the Constitution either expressly or by implication prescribes all of these principles. Its peremptory provisions are largely ignored in the new South Africa, to the detriment of the poor and the taxpaying public.
The legacy of Lategan
In the dark days of Apartheid there was no supreme Constitution and no Judicial Service Commission to recommend the appointment of judges. The task fell to the Minister of Justice alone and nakedly political appointments to the Bench occurred with monotonous regularity.The appointment of the then Attorney General of the Cape, Braam Lategan, as a judge in the Cape Provincial Division of the Supreme Court of South Africa was a reward for his role in the Erasmus Commission of Inquiry which, via its final report, effectively ended the career of BJ Vorster and brought PW Botha to the fore as his successor as State President.
The 1979 Cape Times editorial quotes the attitude of the General Council of the Bar back then:
"A person appointed from the public service who has of necessity throughout his career approached matters from the point of view of the state, will not at the outset have, and is unlikely to acquire, the necessary degree of independence and will inevitably be suspected not to be impartial."
The law reports and court records are littered with judgments overturning decisions of Judge Lategan on appeal, suggesting that the dire predictions of the Bar's leadership back then were accurate.
The appointment of Mokotedi Mpshe, the former Deputy National Director of Public Prosecutions, by the Minister of Justice, currently Jeff Radebe, as an acting judge in the North West High Court is under question.
It is inappropriate that a public servant, especially one who has devoted his professional life to the task of prosecuting suspected criminals, should become a judge. This is because the independence and impartiality of such a person is questionable. The public servant is answerable to the structures of the public administration while all judges are accountable only to the law and the Constitution. Any public servant who is also an acting judge is in effect wearing two hats at the same time. The one, firmly based in the public administration which is a part of the executive branch of government, and the other in the High Court, which is a part of the judiciary. This makes complete nonsense of the separation of powers and undermines the all important legitimacy of the Bench by populating it with personnel of questionable independence and impartiality.
Repent Radebe
The Minister of Justice, Jeff Radebe, not one to disappoint his friends, proceeded to canvass for a place on the Benches favoured by Molokoti Mpshe with a view to securing him an acting appointment.Reaction from the legal professions was swift and sharp. Invoking the doctrine of the separation of powers, the independence of the judiciary and its legitimacy, they called for a rethink. Radebe called a press conference to round on his critics, accusing them of politically motivated chicanery.
Radebe mechanistically invokes what he calls his "prerogative" to appoint acting judges.
Radebe is constitutionally obliged to assist and protect the courts to ensure that these vital characteristics are preserved. He shows, with stark clarity, that he does not have the slightest intention of so doing. This is conduct inconsistent with the Constitution and is invalid; his words in a recent press release are clear evidence of Radebe’s intention not to fulfil his obligations towards the protection of the independence and impartiality of the courts.
The more things change, the more they stay the same
Advocate Mokotedi Mpshe is certainly a controversial character. When he was acting head of the National Prosecuting Authority he perplexingly decided to drop all charges against Jacob Zuma, thus opening the way for the Zuma presidency.Mpshe no longer leads the NPA, but, until Thursday, remained as deputy national director of public prosecutions — an office that is an important cog in the criminal justice system. He is now serving, controversially so, as an acting judge, having been appointed until July 2010 as, what judges whisper, is a reward for his role in promoting Zuma.
What ordinary people want and why they aren’t getting it
The appointment of an ad hoc Committee of the National Assembly to inquire into progress with service delivery and to make recommendations and an implementable action plan to improve the situation in the country is an opportunity for reflection and action.Three essential questions need to be addressed by the ordinary people of South Africa in this exercise in participatory democracy offered to them by Parliament.
- What do they want,
- why aren’t they getting it, and
- how best can they get what they want?
In the State of the Nation address President Zuma revealed that in recent weeks over 32,000 cases of fraudulent social grant payments totalling in excess of R180 million have been uncovered.
The "Three Cs" impeding service delivery
The work of the National Assembly Committee investigating progress with service delivery has commenced.Three recurring themes emerge so far: rampant corruption, inappropriate and illegal cadre deployment in the public administration and a lack of capacity to actually do what is required to be done to put delivery by competent and committed professional public servants in place in terms of existing laws, policies, plans, structures and systems.
The indications are that corruption is endemic at least in part because it is so easy to get away with it. The chances of getting caught are slim and the prospects of successful prosecution or dismissal even slimmer.
Dignity, Equality and Freedom
The Bill of Rights is the cornerstone of the new democratic order in South Africa. What it calls the "democratic values of human dignity, equality and freedom" are affirmed by its provisions. The state is enjoined to "respect, protect, promote and fulfil the rights in the Bill of Rights."The Constitutional Court has placed particular emphasis on the right to human dignity. The notion that everyone has inherent dignity and the right to have that dignity respected and protected, marks a complete break with the unfairly discriminatory core of the apartheid past. There is no dignity in grinding poverty, in exclusion and in being discriminated against in any way.
Speeding up Effective Service Delivery
The theme chosen by the ANC for the year 2010 is an extension of its tried and trusted "better life for all" formula. This theme concentrates on speeding up effective service delivery as the means by which that elusive better life can be found. The words "a better life" appear in the section of the Constitution that governs our national security which "must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life."When the state of the nation address is broadcast and televised on 11 February, President Jacob Zuma will hopefully expatiate upon this theme and embark upon an examination of the "how" questions that have so bedevilled service delivery.
Submission to the Ad Hoc Committee on the Organisation and Management of Professionally Qualified and other Persons within the Public Service
An overview responding to the high levels of dissatisfaction shown by professionally qualified individuals in the public administration in South Africa arising from the translation of their existing conditions to the new Occupation Specific Dispensation framework.- download >
Submission to the Ad Hoc Committee of the National Assembly enquiring into progress with service delivery:
Our Republic is founded on the supremacy of the Constitution and the rule of law. Due to the political dominance of the governing alliance, sight is sometimes lost of the difference between party and state in the daily political discourse in the land, and the centre of power is shuffled between Luthuli House and the Cabinet in popular political debates, when, in truth and in law, the Constitution reigns supreme. This is reinforced by its provisions that law or conduct inconsistent with the Constitution is invalid and that the obligations imposed by the Constitution must be fulfilled diligently and without delay. This is the fundamental difference between the old and the new South Africa. Parliament was sovereign in the old system whereas the Constitution enjoys that status now.This means that service delivery has to take place within the parameters set by the Constitution and not according to the whim or fancy of any party political formations.
Professionalism and impartiality are basic requirements for proper, constitutionally compliant public administration. Both are notably absent in the public administration of South Africa. This has led to deterioration of service delivery in a number of key areas and consequently to protest action by the public.
