KwaZulu-Natal Public Sector Lawyers Association launched

The KwaZulu-Natal Public Sector Lawyers Association held its launch meeting and first colloquium in Durban recently. The keynote speaker at the event was former Judge President of the KwaZulu-Natal High Court, Judge Vuka Tshabalala. The theme of the day was 'Conflict of interest in the public sector: Should public servants and public office bearers be allowed to have business interests in companies that do business with the state?' Judge Tshabalala said public servants should choose to either be public officials or to be in private business. He said public service ought to be seen as a key institution through which government can realise its commitment to bettering the lives of citizens, adding that 'the public expect public servants to perform their duties honestly, openly and transparently. However, when public servants start to regard a public office as an opportunity to work for personal gain, the public becomes aggrieved.' Judge Tshabalala said a report to Parliament last year from the Auditor-General and the Public Service Commission confirmed that public officials do enrich themselves at the expense of the public. He said that one way in which this is done is when public servants and public office bearers are allowed to have business interests in companies that do business with the state. 'The report revealed that more than 2 000 government officials were involved in tender rigging and corruption worth more than R610 million. One reason for this is that it is very easy for public officials to influence the awarding of tenders, and public servants do actually adjudicate government tenders,' he said. Judge Tshabalala said he agreed fully with Zwelinzima Vavi, the general secretary of the Congress of South African Trade Unions (Cosatu) when he said; 'It is not good enough for Ministers and public officials to hide behind the argument that they have "declared an interest" in the companies they and their family own. Even if they are not benefiting directly or corruptly from government tenders, the fact that they are in business to make money creates an inevitable conflict of interest when they are legislating in Parliament, a provincial legislature or municipal council.' In his speech Judge Tshabalala said a look at the other side of the coin is also needed. He said it could be considered unfair to bar a member of the public from tendering for legitimate government work which has no conflict whatsoever with the public office held by those they are related to. Therefore, he said, we must ask ourselves at what point does a conflict arise? 'An equally disturbing consequence of abusing public office for personal gain relates to service delivery. When public officials are distracted from their jobs by paying more attention to their private business interests, resources are diverted away from service delivery,' he added. Judge Tshabalala said that another question that needs to be asked is whether the decision to bar public servants and office bearers from having private interests is unconstitutional. He said: 'It must be reaffirmed that the Constitution lays the foundation for an open society based on democratic values, social justice and fundamental human rights and is hailed worldwide as very progressive. The argument in favour of public officials having private business interests is that they are also private citizens and are thus free to engage in economic activity. The Constitution also places great emphasis on the rights of citizens and the effective, efficient and economic delivery of public services. 'While we enjoy the protection of the Constitution, some rights may be limited in terms of the limitation clause [s 36]. I firmly believe that barring public officials from having business interests is a reasonable and justifiable limitation on the right to free economic activity.' He concluded by saying that he feels strongly that public servants and public office bearers should not be allowed to have business interests in companies that do business with the state because the potential for corruption is too great. Other speakers of the day included the chairperson of the KwaZulu-Natal Legislature's standing committee on public accounts, Dr Makhosi Khoza, who spoke about management of conflicts of interest within

NEWS

The KwaZulu-Natal Public Sector Lawyers Association executive committee and honorary member. Seated : Catherine Dalby (deputy chairperson), Justice Vuka Tshabalala (patron), and Sifiso Chili (chairperson). Standing: Gabriella Razzano, John Wills, Tashini Naidoo (Secretary), Richard Sizani, Bheki Mbili, Jacques Wolmarans, Mark Serfontein, Comfort Ngidi, Boitumelo Tlhale and Richard Stuurman. the government from a good governance point of view; Cosatu's Zwelinzima Vavi who highlighted the risks associated with allowing public servants and public office bearers to have business interests in companies that are doing business with the state; Professor Karthy Govender, a law professor at the University of KwaZulu Natal, who spoke on the continuality of a decision to bar public servants and public office bearers from having private business interest, as well as the KZN Provincial Treasury Head of Department, Simiso Magagula, who spoke about interventions by the province aimed at preventing and combating fraud and corruption relating to the awarding of public sector contracts and tenders. The chairperson of KAPSL, Sifiso Chili, highlighted the five focus areas of the association. He said that it aims to organise and empower the public sector lawyers in KZN; improve links between non-profit organisations and Chapter 9 Institutions to ensure that civil society accesses human rights services offered by such institutions; provide assistance to indigent persons within the community; improve relationships between departments and the provincial Office of the State Attorney, as well as to lobby for improvement in briefing patterns of previously disadvantaged individuals. Mr Chili said the association will be opening periodic law clinics, particularly in underprivileged communities, with the aim of assisting members of the public with basic legal advice, and in accessing social services as well as economic development opportunities that government has to offer. Nomfundo Manyathi, nomfundo@derebus.org.za DE REBUS, DECEMBER 2010 11

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