1. Address by Public Protector Adv. Thuli Madonsela during the Making
National Development Planning Work Conference at the University of
Stellenbosch in Cape Town on Friday, November 22, 2013.
Our host, Professor Erwin Schwella of the University of
Stellenbosch’s School of Public Leadership and his team;
Distinguished guests;
Members of the media;
Ladies and gentlemen;
It is an honour to enjoy the privilege of addressing this important
conference. I am grateful to Professor Schwella and his fellow organizers
for giving me the opportunity to address another Stellenbosch University
conference.
Firstly I would like to congratulate Professor Schwella and his colleagues at
the University of Stellenbosch for initiating this dialogue on National
Development Planning. I’m particularly encouraged that the conference
brings together a great combination of those involved in applied
development planning with those involved in research and thought
leadership.
In a column, published earlier this month in the Mail and Guardian, Rector
and Vice-Chancellor of the University of Stellenbosch, Professor Russel
Botman, had the following to say about the National Development Plan
(NDP):
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2. “… It is now opportune to amend Madiba’s call for an “RDP of the
soul” to an “NDP of the soul”. This time, though, civil society should
unite to repair the moral fibre of society. It is a cause no less noble or
urgent than the struggle against apartheid. About this there should be
no disagreement.”
The timing of the debate around the implementation of the National
Development Plan is of great interest. As a people, we are moments away
from celebrating the 20th anniversary of our hard-won democracy. Together
with other democracies, we are also a little more than a year away from the
UN platform for reporting back on what we have achieved in the pursuit of
the Millennium Development Goals our country together with other nations
committed themselves in 2000 to achieve by 2015. As a country, we are
also faced with the task of implementing our first ever integrated National
Development Plan.
We also meet at the time when it has come to our attention that the number
of people living below the poverty line increased from 48% in 1996 to
52.3% in 2012.
There is accordingly no better opportunity for reflecting on developmental
planning and implementation than the present one. The conference takes
place during an ideal time for our country to look back and take stock of our
achievements and failures in living up to the kind of South Africa envisaged
in our world-acclaimed Constitution.
You would know that our Constitution promises the people of South Africa
an improved quality of life and a freed potential of each person. That
improved quality of life is anchored by a justiciable bill of rights enshrining
right and freedoms that ought to be enjoyed by every single one of us. The
rights include socioeconomic rights such as the rights to education, access
to health care, economic activity, social security and housing. The rights
also include civil and political rights such as the right to human dignity, right
to equality, freedom of association and freedom of expression. In other
words the Constitution promises and envisions a new society that is a vast
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3. improvement from the one under apartheid. Underpinning the rights are
values such as the achievement of equality, freedom and human dignity.
At the core of the new society that the Constitution seeks to lay the
foundation for is a descent life for every person by virtue of being a human
being and without discrimination on the basis of race, gender, disability,
age, socio-economic status, nationality or any other human condition.
It is worth noting that the framers of our Constitution did not trust the
inherited state apparatus to deliver on the Constitutional vision. It was
understood that a new state based on an ethos that is not at odds with the
values and vision of the new society had to replace the old one. With this in
mind, the Constitution defines and describes the character ofthe state that
is required for the realizationof the constitutional vision. The Constitution
stipulates, among other things, that the state must be democratic, uphold
the rule of law and operate on the basis of openness, transparency and
accountability.
It goes further in section 96 to refer to the ethical standards which the
executive should uphold and which include acting in the public interest. In
section 195, the Constitution outlines the principles of public administration,
emphasizing the non-negotiability of putting people first as opposed to selfinterest. Section 237 specifically directs that constitutional obligations be
performed diligently and without delay. This means before the nice-to-dos
are catered for, rights and other constitutional imperatives should be given
priority.
If you look closely at the constitutional provisions outlining the character
ofthestate, you begin to see clearly the seeds of good governance. Such
seeds become clearer when we look at chapter 7 which specifically
regulates local governance. The provisions of chapter 7 include the
following:
“The objects of local government are(a) To provide democratic and accountable government for local
communities;
(b)To ensure the provision of services to communities in a
sustainable manner;
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4. (c) To promote social and economic development;
(d) To promote a safe and healthy environment; and
(e) To encourage the involvement of communities and community
organisations in the matters of local government.”
I have always believed that if the provisions of sections 151-164 of the
Constitution were internalized by local government functionaries, municipal
structures would function more effectively. Needless to say that there would
be less service delivery grievances and protests.
Governance has been defined by the World Bank as the manner in which
power is exercised in the management of a country’s economic and social
resources for development. The United Nation Development Programme’s
definition of this concept is similar but deeper: “The exercise of
economic, political and administrative authority to manage a
country’s affairs at all levels …within the rule of law and with
consensus.”
All these definitions encapsulate the spirit of the provisions of the
Constitution that I referred to earlier. One could say, in a nutshell, in order
to make national development work, there must be good governance.
What then are the good governance factors that need to be attended to as
we go into the next two decades of democracy, the second phase of MDGs
and the implementation of the NDP?
I can only share with you what I have learnt in the last four years of being
the Public Protector.
You are probably aware that the Public Protector is established under
section 181 of the Constitution and given power under section 182 “ ...to
investigate any conduct in state affairs, or in the public administration
in any sphere of government, that is alleged or suspected to be
improper or to result in any impropriety or prejudice; to report on that
conduct; and to take appropriate remedial action”
However, many of you might not be aware that the Constitution envisages
additional powers for the Public Protector as prescribed in national
legislation. As we speak these additional legislative powers, which have
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5. come from more than a dozen statutes, have caused my office to evolve
into a multiple mandate or remit office, whose role includes playing a part in
the anticorruption architecture of South Africa.
The key mandates of my office to-date include the following:
1. A maladministration mandate, incorporating abuse of power and
abuse of state resources under the Public Protector Act of 1994;
2. The sole enforcement agency for the Executive Ethics Code under
the Executive Members Ethics Act of 1998;
3. An anticorruption mandate deriving from improper conduct in section
182 of the Constitution, maladministration under the Public Protector
Act and the reference made to the Public Protector under the
provisions of the Prevention and Combatting of Corrupt Activities Act
of 2004;
4. A safe harbour for whistle-blowers under the Protected Disclosures
Act of 2000;
5. One of several information regulators under the Promotion of Access
to Information Act ; and
6. The administrative review authority over decisions of the Home
Builders’ Registration Council under the Housing Protection
Measures Act
The lessons I draw from come from cases we deal with on a day today
basis. These involve service failure and conduct failure. Service failure
incorporates service delayed e.g. getting an ID, work or residence permit,
workers compensation, water, electricity, housing and payment of state
contractors and ex employees of the state. Service denied involves a
decision not to provide a service, e.g. social grants, outstanding fees and
outstanding pension funds.
Conduct failure includes abuse of state power and resources, conflict of
interest, other forms of unethical conduct, including bribery and other forms
of corruption in state affairs.
Some of the lessons come from stakeholder consultations which we
undertake mostly between July and September every year and our Good
Governance Week, which takes place around the 15th of October every
year.
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6. The governance failures that need to be corrected with a view to enhancing
national planning to enhance service delivery and sustainable development
as we tackle our next phase as a constitutional democracy include the
following:
1. Inadequate connect between those that govern and the power givers.
If you scrutinize the e-toll debacle you will agree with me that the
problem relates to communication. Government says it consulted and
the people say it didn’t. The truth is they are both right. There was
consultation but it was not specific.
2. Poor planning
3. Poor execution, including failure to stick to plans
4. Corruption
5. Leadership and skills deficit exacerbated by constant loss of
institutional memory
6. Inadequate systems, including institutional policies and standard
operational procedures
7. A fragmented state resulting in “left-behind” communities
8. Inconsistencies in enforcement marked by unacceptable levels of
impunity and a fragmented integrity sector
9. Rule of law challenges, including inadequate understanding of the
nature of democracy checks and balances, including the role of
Institutions Supporting Democracy and the notion of constitutional
democracy.
10.
Need for demonstrable political will
On the question of the rule of law and understanding checks and balances,
I have noted that many are still stuck in pre-constitution thinking. Sui
generis institutions such as mine that are neither courts nor tribunals are
not fully understood. This means their potential to help transform the state
in pursuit of good governance is not fully utilized. In the Inkandla matter for
example, the argument is that the power to decide on security matters is
that of Parliament and the Cabinet. That is true. But the power to determine
whether or not that power has been exercised in accordance with the law
belongs to my office, other competent bodies and ultimately the courts.
That is the impact of the additional checks and balances that the framers of
our constitution added in order to reinforce our fledging constitutional
democracy.
Former President Mandela once said:
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7. “The purpose that will drive this government shall be the expansion
of the frontiers of human fulfillment, the continuous extension of the
frontiers of the freedom. The acid test of the legitimacy of the
programmes we elaborate, the government institutions we create, the
legislation we adopt must be whether they serve these objectives. My
government`s commitment to create a people-centered society of
liberty binds us to the pursuit of the goals of freedom from want,
freedom from hunger, freedom from deprivation, freedom from
ignorance, freedom from suppression and freedom from fear. These
freedoms are fundamental to the guarantee of human dignity.”
A key pillar of good governance is clean governance. By its very nature
clean governance entails zero tolerance to corruption. Corruption is one of
the key enemies of development. Its outcomes include distorted policies,
unplanned and unneeded projects, overbilling, false billing, overcharging
and shoddy work and an unstable investment and entrepreneurial
environment. . Excellent work is being done by the Department of Public
Service and Administration, the Special Investigating Unit, National
Treasury and others. What is needed is consistency and the closing of
gaps caused by the multiagency approach to corruption.
While all these are important, it is critical to mention that it should not be left
to the state to ensure good governance. It must also be understood that
development should be the pursuit of everyone with the state primarily
acting as an enabler and regulator. However, as a developmental state our
state must directly engage in the delivery of basic needs such as water,
health, education, infrastructure and to a limited extent, housing.
Ultimately, the better life promised by Constitution can be better and
speedily achieved through enhanced good governance and development
planning with a view to enabling all who can to fend for themselves while
ensuring that those that cannot look after themselves are taken care of.
We all have roles in this regard. If we play our part we will ensure that in
the next 20 years, ours is a state that is accountable, operates with integrity
and is responsive to the needs of its people.
As we move forward on the question making national planning work by
anchoring it on good governance, I suggest we borrow wisdom from the
Chinese proverb that goes.
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8. “The best time to plant a tree was 20 years ago. The second best time
is now”.
Thank you.
Adv. Thuli Madonsela
Public Protector of South Africa
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