Delivered by Kholeka Gcaleka and published by the FW de Klerk Foundation on 02/02/2024 

                                                                                                           Adv Kholeka Gcaleka
                                                                                                                 Public Protector
                                                                              FW DE KLERK FOUNDATION ANNUAL CONFERENCE:
                                                                                                            DATE: 2 February 2024
                                                                                               VENUE: Table Bay Hotel, Cape Town
                                           “South Africa at 30 – Where are we Now in Terms of the Vision in the 1996 Constitution?”.

Contents

1. INTRODUCTION 
2. STATE OF THE NATION: 30 YEARS INTO DEMOCRACY 
2.1 International reflections 
2.2 Domestic overview 
2.3 Living conditions 
2.4 Governance 
2.5 Service delivery 
2.6 Endemic levels of corruption 
3. THE VISION OF THE CONSTITITON REMAINS AS A FOUNDATION FOR AN EVEN BETTER FUTURE 18
3.1 The Constitution as a blueprint to a better life for all 
3.2 Action/ Agenda item 1: Compliance with and respect for the Rule of law 
3.3 Agenda/ Action item 2: limiting undue exercise of public power 
3.4 Agenda/ Action item 3: Protecting and promoting human rights 
3.5 Agenda/ Action item 4: Good governance and ethical conduct
4. CONCLUSION 

The leadership of the FW De Klerk Foundation
– Chairperson – Mrs Elita de Klerk
– Chairman Emeritus – Mr Dave Steward
– Executive Directors – Mr Christo van der Rheede
The leadership of the Public Protector South Africa present
The former Minister of Finance, Mr Trevor Manuel
The Mayor of the City of Cape Town, Mr Geordin Hill-Lewis
The Resident Representative of Konrad-Adenauer-Stiftung , Mr Gregor Jaecke
Distinguished guests
Members of the media
Ladies and Gentlemen

It is a great honour to stand here before you. As the Public Protector South Africa (PPSA), we welcome opportunities to interact with and participate in the works of various organisations that we believe are established to advance the national goal of creating a better South Africa, for all those who live in it.

Considering my topic today, naturally I was required to conduct some form of a self-reflection exercise. Necessarily, this reflection gave rise to a myriad of thoughts and ideas, some being more pleasant than others.

It is my considered view that people from all walks of life in this country are invested in the success of our nation’s democratic project, and gatherings such as this one, give such persons an opportunity to interact with one another and exchange ideas on how to turn our nation’s dream into a reality. I therefore am truly grateful to a be part of this and am hopeful that it will achieve its desired ends.

1. INTRODUCTION

Ladies and gentlemen;

The Constitution of South Africa, 1996, has, since its adoption, provided the legal framework upon which the new social and political order was founded 30 years ago. It lays down the principles of democratic governance; and establishes and defines the powers and functions of governmental institutions, and the values that underpin the new democracy. The Constitution has been the yardstick to measure, and beacon to guide, conduct in private life and public administration, and the civility of governance in general. It has provided the compass that has steadily steered South Africa as a nation away from the dark days of apartheid to a future that is founded on freedom, respect for human rights and the rule of law, and in which there is hope for even greater realisation of social justice and prosperity for all South Africans.

To know how far we have come as a nation since the dawn of democracy, and to know where we want to go, it is necessary to briefly reflect where we come from.

There can be no denial, of any sort that apartheid was a despicable system, developed with the sole, inhumane and cruel purpose of disenfranchising the majority of a people, in their own land by a minority of foreign descent. Notwithstanding the various misguided justifications of such a manifestly abhorrent thing, which justifications we should not entertain under any circumstances whatsoever, many have argued, both then, and in contemporary times, that the system bore some form of beneficial fruits. Of course, this twisted logic is defeated instantly, by the occurrence of the events leading up to the abolishment of apartheid and the objective evidence which revealed and continues to reveal that such benefit only accrued to a small few. It is also worth expressing in no uncertain terms, that the benefit did not only exclude the majority, but in fact was attained, deliberately so, at the expense of the majority of the people of this wonderful nation.

The 1927 Immorality Act,
The 1950 Population Registration Act
Through the incredibly infamous Group Areas Act of 1950,
The Suppression of Communism Act

South Africa’s Democratic era was hard fought for, but various civil organisations and political formations. Overthrowing a government is no easy task, even more so during those times, before the days of social media and the world wide web. The Truth and Reconciliation Commission reported that between 1948 and 1989, largely considered to be the formal years of apartheid, there were 21,000 people who died from political violence.

Former President, FW de Klerk, and his direct successor Nelson Mandela, I believe are more celebrated for the way that they conducted themselves between 1989 and 1994, then anything else they have ever done in their lives.

Mr de Klerk and Mr Mandela, among other political giants of the time, leading their various delegations, were now required to engage in a slightly different style of sparring. Both men, legally trained, incredibly knowledgeable and with huge responsibilities on their shoulders were tasked with strategically securing deals that would protect the interests of the various groupings they represented and causing the least amount of harm during the process

2. STATE OF THE NATION: 30 YEARS INTO DEMOCRACY

2.1 International reflections

South Africa’s constitutional development since 1994 is unique in many ways, but it shares some similarities with other emerging constitutional democracies and countries with similar experiences, particularly those transitioning from authoritarian rule or overcoming deeply entrenched systems of discrimination. Here are some comparisons:

1. Transition from Authoritarian Rule: Like some other emerging constitutional democracies, such as Brazil, Indonesia, and Tunisia, South Africa underwent a transition from authoritarian rule to democracy. In each case, this transition involved negotiations among various political actors, leading to the adoption of new constitutions that enshrined democratic principles and protected fundamental rights.

2. Ethnic Diversity and Nation-Building: Countries such as India, Nigeria, and Malaysia share with South Africa the challenge of managing ethnic diversity and building a cohesive national identity. In each case, the constitution plays a crucial role in balancing the interests of different ethnic and cultural groups, promoting social cohesion, and preventing ethnic conflict.

3. Legacy of Colonialism and Discrimination: Countries like Kenya, Zimbabwe, and Namibia have grappled with similar legacies of colonialism and discrimination as South Africa. In each case, the constitution has been used to address historical injustices, promote reconciliation, and empower marginalized communities.

4. Constitutional Design and Institutions: South Africa’s constitutional design, including its system of checks and balances, separation of powers, and protection of human rights, bears similarities to other emerging constitutional democracies, such as Colombia, the Philippines, and South Korea. In each case, the constitution serves as a framework for democratic governance and the rule of law.

5. Challenges of Implementation and Enforcement: Like many emerging constitutional democracies, South Africa faces challenges in implementing and enforcing its constitution. These challenges include corruption, weak institutions, socio-economic disparities, and resistance from vested interests. Addressing these challenges requires sustained efforts to strengthen democratic institutions, promote accountability, and enhance the rule of law.

2.2 Domestic overview

Post-apartheid socio-economic transformation efforts pursued by the Government have been substantial but have fallen short of public expectations for more rapid change. These unmet expectations likely have contributed to sections of society increasingly opting out of mechanisms that underpin democracy, from talking to ward councilors, complaining to and engaging ISDs or seeking change through the political (electoral) processes. Poor living conditions and frustrations arguably are a major factor motivating frequent, sometimes violent demonstrations that have been part of the South African landscape for a number of years.

Many experts maintain the view that the large disparities in access of the poor and vulnerable to some of the essentials of life are “a constant and stubborn reminder of the unfinished business of our democratic project”, which amongst others, must seek to reverse the legacy of apartheid policies that “continue to underpin rural residents’ struggle for social reproduction”.
It is a worrying concern to the Public Protector and fellow Institutions Supporting Democracy that so many of the social and economic factors that may constitute some of the underlying causes of the indifferences in the South African Society are still so prominent, including poverty, inequality and unemployment, incidents of racism, exacerbated by the impact of the Covid-19 pandemic and levels of corruption. According to a new report released on 9 March 2022 by the World Bank, Inequality in Southern Africa, our rainbow nation is still the world’s most unequal country.

The Report noted that the COVID-19 (coronavirus) pandemic had a major impact on South Africa’s economy leading to a 6.4% contraction in 2020, as the pandemic weighed heavily on both external demand even as the government implemented containment measures. “This severe contraction is estimated to increase poverty with 2 million people living below the poverty line for upper-middle income countries, on $5.5 per day in 2011 Purchasing Power Parity exchange rates, PPP.” The South African economy was already in a weak position when it entered the pandemic after a decade of low growth resulting in South Africa being assessed as the most unequal country in the world, ranking first among 164 countries in the World Bank’s global database of Gini coefficients, which measure inequality of per capita consumption (or income, depending on the country). The most recent data put South Africa’s Gini index at 67 in 2018.

According to the World Bank Report, race is the largest contributor to inequality, and its contribution is growing. The legacy of apartheid continues to exacerbate economic disparities. Differences in educational attainment are the second most important driver of inequality, especially post-secondary or tertiary attainment. Disparities in access to education, which is key to human capital accumulation, contribute about 30 percent to overall inequality. Disparities in employment outcomes are the third most important contributor to inequality. Differences in labour market attributes (labour force status, industry of employment, and occupation type) account for nearly 16 percent of overall inequality. Other contributing factors identified by the World bank include differential access to land, varying levels of financial capability, low levels of financial inclusion, corruption and cronyism, and ineffective and poor implementation of government policies and programs in ensuring wealth equality.

Another harsh reality is that women’s realities in South Africa are still determined by race, class, and gender-based access to resources and opportunities. This is due to various challenges such as poverty, unemployment and inequalities. Poverty is a social problem that affects both women and men in South Africa, and various extant literature has established that many women live below the poverty line more than men.

More than half (51,1%) of the South African population are female and, according to the General Household Survey (GHS) 2021, more than two-fifths (42,0%) of households are headed by females.

Despite the number of females in the working-age population exceeding males, their participation rates in the labour force remained lower at 50,7% in 2022 compared to 63,2% for males.

Analysis of the median earnings of females as a percentage of the median earnings for males revealed that females’ median earnings were 77,8% of males’ median earnings, and that parity in earning was only reached with tertiary education.

The challenges have been plaguing the Country since the advent of the new democratic dispensation 30 years ago, and some of the issues have still not been dealt with “head on”. The current state of affairs has a degenerative effect on the country’s young democratic culture and not lonely erodes the rights of citizens but are contributing to unprecedented levels of frustration and loss of trust in the democratic institutions, systems and processes, which threatens to derail the democratic state.

We are a relatively young and impressionable democracy and our understanding of constitutional democracy and the rule of law is still developing. When governance and accountability, and consequently the relationship between citizens and the state is weak, this may lead to an “opt-out” strategy, with citizens withdrawing from state services. Within such dysfunctional relations, citizens may totally “opt out” of the democratic accountability processes altogether and articulate their needs and demands through protest action or civil unrest (like we experienced in July 2021).

Despite often-large investments and concerted policy efforts to improve things such as housing, public services in their generality, infrastructure, and the state’s technical capacities, the delivery of public goods and services remains disconcertingly inadequate and unequally distributed. Such problems disproportionately affect the most vulnerable members of our population, which, not surprisingly, also suffer from particularly high rates of unemployment and low educational attainment.2 As the PPSA, we have had the unfortunate role to experience these disappointments and human rights violations through the lens of the complainants that we interact with on a daily basis. Just in this financial year, we have received and dealt with investigations as follows:

These are just raw statistics and are certainly not a true reflection of the extent of how bad and ugly the situation is because most people do not even know that there is recourse or have the means to complain or access our complaint avenues.

2.3 Living conditions

South Africa has made significant strides since 1994 to reduce extreme poverty by providing basic services – such as water, electricity, sanitation and housing – to large segments of its population. But even with these concerted efforts to reduce under-development, together with a social welfare system that has enabled thousands to access education and food, a day in life of many people living in South Africa still involves various concerns, such as crime, health, and finding some form of income to make a living.

•The ‘percentage of individuals that benefited from social grants consistently increased from 12.8 per cent in 2003 to 31 per cent in 2018. Simultaneously, the percentage of households that received at least one social grant increased from 30.8 per cent in 2003 to 44.3 per cent in 2018’ {Stats SA, 2018: 31). Close to 18 million social grants were paid out by the end of the financial year in 2019 and the figure has increased with the introduction of the special COVID-19 grant, with an additional six million people receiving the Social Relief of Distress COVID-19 social transfer by December 2020 {Stats SA, 2021). The number of people accessing the Social Relief of Distress COVID-19 grant increased to 10 million by January 2022. National Treasury {2019) estimated that state expenditure on social grants will grow from R162.9 billion in the 2018/19 financial year to R202.9 billion by the end of March 2021 {National Treasury, 2019: 3).

•Access to energy within households has improved, with connections to the national electricity grid increasing from 76.7 per cent in 2002 to 85 per cent in 2019. By 2020, 90 per cent of South African households were connected to the mains electricity supply’ {Stats SA, 2020: 43). Electricity is increasingly becoming the main energy source for preparing food,

•Similarly, household water access stood at 88 per cent in 2019, which is a four per cent increase from 2002.

•Sanitation access in households improved more than water, with the figure rising from 61.7 per cent in 2002 to 82.1 per cent in 2019 {Stats SA, 2019: 42)

•Although South Africa has made progress in reducing poverty since 1994, the trajectory of poverty reduction was reversed between 2011 and 2015, threatening to erode some of the gains made since 1994. Approximately 55.5 percent (30.3 million people) of the population is still living in poverty at the national upper poverty line (~ZAR 992) while a total of 13.8 million people (25 percent) are experiencing food poverty. (The latest food security report from STATSSA found that ’78 per cent of households reported that they have adequate access to food, about 2.5 million {15.8 per cent) reported that their food access is inadequate and almost 0.9 million {5.5 per cent) of households described their food access as severely inadequate’ {Stats SA, 2019: 14).)

Poverty, nevertheless, remains a key development challenge in social, economic and political terms; not only in South Africa but throughout the developing world. In post-apartheid South Africa, fighting the legacy of poverty and under-development has always been a central theme of Government. This was cemented in the Reconstruction and Development Plan (RDP) of 1994 and reiterated in the National Development Plan (NDP) published in 2011.

Poverty in South Africa is caused by a combination of factors that have a deep impact on people’s lives. One major factor is the legacy of apartheid. For many years, the apartheid system enforced racial segregation and economic inequality, leaving non-white South Africans, especially black Africans, with limited access to resources, education, and job opportunities.

Other significant contributing factors include-

a) Unemployment. Many people, especially young individuals, struggle to find work.
b) Inequality plays a significant role as well. South Africa has one of the highest levels of income inequality in the world. The concentration of wealth and resources in the hands of a few creates a stark divide and limits opportunities for the majority.
c) Education is crucial, but unfortunately, many South Africans still face obstacles in accessing quality education. Limited opportunities, unequal distribution of educational resources between urban and rural areas.
d) HIV/AIDS and COVID 19 have also taken a toll on the country. South Africa has been heavily impacted, resulting in a loss of productive workforce, increased healthcare expenses, and economic instability. This disease disproportionately affects vulnerable populations and further contributes to poverty levels.
e) Poor governance and corruption are additional factors. Weak governance, corruption, and mismanagement of public resources hinder economic growth and worsen poverty. These issues erode public trust, discourage foreign investment, and undermine poverty alleviation efforts.
f) Furthermore, limited access to basic services like water, sanitation, healthcare, and electricity has a significant impact on impoverished communities. Without proper infrastructure, development becomes challenging, perpetuating poverty in marginalized areas.

Poor living conditions and frustrations are arguably one of the major factors motivating frequent, and sometimes violent demonstrations that have been part of the South African landscape for a number of years.

Accordingly, to the extent that these socio-economic variables are important drivers of popular discontent, social unrest is likely to be fueled by the impact of corruption on governance, the economy and the effective realization of human rights.

For instance, the underlying tension exacerbated by the impact and effect of the current energy crisis serves as a timeous reminder of the economic, social, political, and institutional features of the South African landscape that, if left unattended, will undoubtedly contribute towards further, future risks and threats to our democratic order and the safeguarding of our constitutional democracy.

2.4 Governance

South Africa has held successful free and fair elections since our transition to democracy in the early 1990s. Several sources highlight the negotiation period that heralded the transition and the importance of it for the establishment of a democratic culture in which electoral outcomes and basic political rights are respected. The transition is viewed positively in these accounts and considered as the anchor of South Africa’s democratic political culture,

The post-apartheid bureaucracy and public administration has been transformed since the early 1990s. This process has been guided by constitutional prescripts and the ruling party’s vision of a democratic and responsive public service { DMPE, 2014). Some of the essential policy measures introduced over the past 30 years include creating a single public administration, deracialising public-sector labour markets, introducing public service regulatory frameworks and establishing a three- tiered cooperative governance model.

Executive authority lies at the heart of effective government, yet the control of executive power remains one of the most difficult problems in any constitutional framework. The Constitution takes up this challenge by establishing checks and balances by creating a range of independent institutions to both exercise particular aspects of executive power but also to serve as checks on the abuse of executive authority. While the more traditional checks on the Executive have proven rather anaemic in the context of South Africa’s unipolar democracy, the intricate system of checks and balances in the governance structure provided by the Constitution has thus far survived intense political conflict and managed to sustain stable governance over the first almost three decades of our democracy.

South Africa’s government has continued implementing varied programmes aimed at creating social cohesion and nation building. Yet, social conflict persists, eroding the legitimacy of government and the broader polity {Netshitenzhe, 2020). This legitimacy crisis is exacerbated by the phenomenon of state capture, which undermined governance and implicated individuals in both public and private sectors. State capture is broadly defined as a perverse governance system that shifts public resources and institutions towards the sectarian interests of selected business and political groups in society.
The details of how this phenomenon developed have been extensively reported, but the main takeaway here is the corrosive impact of state capture on state and society relations. In 2018 the then President established a commission of inquiry to investigate this phenomenon based on our recommendations. The commission has concluded its investigations and published its findings. We are monitoring the implementation.

We have witnessed and experienced that citizens and communities are not only frustrated by their socio-economic circumstances but poor service delivery, standard and quality of the service delivery, leadership and lack of good governance by particularly the local authorities has frustrated communities. Indicators of public dissatisfaction in these municipalities included several violent service delivery protests, low levels of civic participation, and a general refusal to pay for services. The collapse of municipal service provision in some municipalities could be ascribed to several factors including endemic corruption, poor municipal governance, lack of structured community engagement, and poor financial management.

A significant part of the mandate and mission and vision of the PPSA over the past 30 years have been dedicated to protecting all persons against administrative injustices, improving service delivery and promoting good governance in state affairs – a catalyst for change in pursuit of good governance. The PPSA has been reactively been pursuing these objectives in the management of complaints, but also proactively on a strategic level been pursuing dialogues held with organs of State on systemic governance challenges.

Our business processes are also aligned to identify and address the most probable underlying (root) causes of problems, complaints and undesired events within the relevant public body or authority, with the aim of formulating and agreeing corrective actions to at least mitigate, if not eliminate, those causes and so produce significant long-term improvements in the public administration.

In recent years the PPSA finalised, reported on and took remedial action as envisaged in section 182(1)(a), (b) and (c) of the Constitution in respect of various aspects relating to governance failures in state affairs within her various mandate areas, including

a) Maladministration in connection with the affairs of government at any level, including irregular appointments, failure to comply with municipal prescripts, failure to put measures in place to support and strengthen traditional councils, unfairly excluding students from university qualification programmes, billing irregularities by municipalities, construction of transitional residential units as well as failure to provide proper assistance to an applicant for a protection order.
b) Systemic corporate governance deficiencies
c) Abuse or unjustifiable exercise of power relating to, amongst others the appointment of municipal officials,
d) Unfair, capricious, discourteous or other improper conduct
e) Undue delay by a number of institutions to, inter alia, resolve disputes regarding the correct calculation of pensionable service, finalise statutory applications or timeously implement a new social grant system
f) Improper or unlawful enrichment, or receipt of any improper advantage
g) Unlawful or improper prejudice to any other person; emanating from , for example irregular billing by Municipalities or failure to pay an official an acting allowance where appropriate.
h) Executive ethics enforcement relating to members of the Executive having acted in breach of the Code of ethics by violating statutory obligations, making public misrepresentations and false or misleading statements.
i) Improper or dishonest act/ corruption relating to unethical conduct on the part of officials and functionaries, including corruption, collusion, theft, forgery and defeating the ends of justice, public procurement irregularities relating to amongst others, the procurement of PPEs and accommodation relating to the COVID-19 pandemic, conclusion of lease agreements without following procurement processes, as well as procurement processes that did not comply with Constitutional and other statutory requirements.
j) Protected disclosures/ whistle-blower protection where institutions have been found to have failed to properly handle and deal with protected disclosures regarding suspected corruption, conflict of interest and procurement irregularities.

2.5 Service delivery

South Africans have better access to water, housing and electricity. But the quality and nature of access to public goods remain prevalent challenges expressed in communities. Responses from community participants to questions about supply interruptions, pricing and infrastructure satisfaction reflect poor quality in all these basic service areas {Stats SA, 2018; Stats SA, 2019). This is equally expressed in several non-governmental organisation research documents which examine access to food, water, energy and housing {SPII, 2018; Greenpeace, 2019). While past disparities and backlogs with service delivery based on racial divides obviously contributed to the country’s socio-economic problems, the Public Service Accountability Monitor (PSAM) believes that a major cause of inequality in South Africa is poor governance, which includes not only corruption, but also poor performance of government officials in their management of public resources and a lack of political will to act against underperforming officials.

The poor management of public resources translates directly into poor public service delivery implementation, and thus obviously undermines poverty alleviation policies and other initiatives to address inequality.

Municipal IQ conducted some research that revealed severe problems with regard to municipal finance and intergovernmental fiscal issues. Of particular concern are the number of municipalities with disclaimer audit opinions, some have received disclaimers for five or more years consecutively.

Accordingly, provincial and local governments are least able to deliver services in the poorest and historically most marginalised areas, and these are the areas where such services are needed most. These patently high levels of variation in service quality lead to a strong sense of injustice in our society.

In the recent past in particular, but over an extended number of years in South Africa, we have all witnessed and experienced that various communities are not only frustrated by their socio-economic circumstances but by poor service delivery, the standard and quality of the service delivery, a trust deficit in leadership and a lack of good governance by local authorities in particular. In the experience of the PPSA, service failure usually involves general maladministration in the form of service delayed or service denied. Our case load covers the entire span of the classical definition of maladministration which includes: undue delay; abuse of power; unfair, capricious or discourteous behaviour and the violation of a human right.

The ordinary people of this country continue to trust our institution and sister organisations with the matters in which they feel their rights have been violated. Throughout the last decades, we have as did other fellow Chapter 9 institutions, made pronouncements based on our respective mandates on matters affecting ordinary citizens.

Recently we issued a report that looked into systemic issues in the Eastern Cape which led to service delivery challenges in various municipalities in the province. We also conducted a systemic investigation into the Hammanskraal water crisis. The organs of the state concerned, have accepted our investigation and the remedial action prescribed, is being implemented without undue delays.

The courts continue to adjudicate on matters brought before them and people’s rights are being vindicated. Civil society continues to play a meaningful role in advancing and protecting the rights of many citizens throughout the country. While the actual number of complaints relating to service delivery failures are not readily available, it is estimated (from a previous sampling of cases involving local government entities) that about two thirds of the cases reported to the Public Protector are linked to service failures:

The PPSA deals with a number of investigations in relation to the delivery of infrastructure such as roads, public facilities and housing. The key challenges here are the delivery of shoddy workmanship, with impunity and false billing. Procurement processes associated with public infrastructure delivery remain a cause for concern. Cases involving service delivery failures include issues such as:
a) Poor services or failure to rectify defective services/ failure to repair.
b) Lack of service delivery, No sanitation, proper roads, water and electricity.
c) Non –payment or delayed payment by the State to service providers;
d) Unresponsiveness of municipalities to complaints and grievances regarding service delivery
e) Failure by the State to rectify bona fide mistakes (eg, incorrect billing)
f) Failure to attend to damages caused by faulty state equipment and infrastructure failure
(drainage, flooding, electrical surges).

2.6 Endemic levels of corruption

There is general consensus in this day and age that the prevalence of corruption points to a dearth of ethical leadership and a breakdown in the institutions that are supposed to enforce good governance practice and it constitutes a major threat to democracy and the rule of law.

Corruption and patronage are two additional socio-political causes of community discontent {Von Holdt et al., 2011; MISTRA, 2013). These two factors erode legitimate public service processes governing access to basic services in communities. There is ample evidence pointing to local actors using basic services as a tool for dispensing patronage or excluding citizens who are outside patronage networks . MISTRA’s study on patronage politics illustrates how this practice ‘breaks community ties and divides residents into winners and losers. Social cohesion suffers. Communities no longer function as a cohesive whole.

The phenomenon of corruption is a universal problem and considered particularly troublesome in developing nations like ours. Corruption is problematic for most developing nations primarily because resources that are meant to achieve socio-economic and developmental objectives are, often times than not, diverted to the benefit of few corrupt elites thereby undermining the developmental goals of these nations.

With the increased awareness of the detrimental effects of corruption, it has become a dominant subject in the media, academia, and among policy makers, in civil society organisations and business as well as among members of the public in general.

According to Transparency International, perceptions about South Africa’s corruption stabilised at an average score of 43 in the past 15 years. . Figure 1.1 provides a detailed description of corruption perceptions between 1995 and 2020.

Corruption may occur in the form of abusing any position of power or influence, in the act of bribery, collusion or coercion for the purpose of ceding some form of advantage, or profiteering, of one party and at the expense of the rights of others. It is the illicit misappropriation of entrusted power for private gain and therefore an abuse of public trust. Corruption deviates from decency, its dishonest and intends to deceive.

Corruption is endemic, affecting incomes and livelihoods of individuals and communities; Corruption is one of the main obstacles to sustainable economic, political and social development, for developing, emerging and developed economies alike. Overall, corruption reduces efficiency and increases inequality.

By way of example, well-connected business-people are able to utilize their influence to override formal procedures when they come into contact with a relatively weak state. Similarly, if poor people are denied access to services to which they are Constitutionally entitled, their lack of resources and connections make it difficult for them to demand their rights.

As a nation in its entirety, we are all heavily harmed by financial mismanagement, maladministration, and corruption, however, the costs are not borne equally and fall most heavily on the poor through the impact that these have on the quality and accessibility of public services.

As a consequence of their proximity to the people, at the very least, provincial and local governments are the hardest hit because of the key role they play in delivering services such as healthcare, education and housing, all of which are vital both for the human and economic wellbeing of the people of South Africa.

3. THE VISION OF THE CONSTITITON REMAINS AS A FOUNDATION FOR AN EVEN BETTER FUTURE

3.1 The Constitution as a blueprint to a better life for all

The Constitution of the Republic of South Africa almost immediately after its promulgation has always been seen as the Holy Grail of South African law. It is the vanguard that protects the citizens from the people who are placed in power, and indeed the citizens from one another.

It serves as the supreme law of the land while simultaneously, and I must add, quite masterfully echoing a “‘never again”’ message. What this means, in the simplest terms, is that the government will never again have the ultimate power to make unjust laws without its actions being grounded firmly in this most esteemed document.
One of the most recognised parts of our Constitution is the Bill of Rights, which is widely recognised as the cornerstone of democracy in South Africa, primarily through its affirmation of the democratic values of human dignity, equality and freedom.”

The Constitution provides the basis for the character of the state that is envisaged for the realisation of the constitutional vision of the country, to the extent of dictating that the state must be democratic, uphold the rule of law and operate on the basis of openness, transparency and accountability ethical standards which the executive should uphold and which include acting in the public interest.

Experts agree that the very essence of “democracy” is based on the premise that those elected to form a government shall govern “so long as they can protect the interest of the people or the trust the people have placed in them” This is how the concepts of democracy, rule by consent, and good governance came into existence in the theory and practice of government.

In a Constitutional democracy, the framework of Constitution and law exemplifies essential elements of good governance and accountability by, inter alia –
a) Prescribing the powers of government and the procedure of exercising powers.
b) Ensuring equal treatment and equal protection of law.
c) Guaranteeing protection against arbitrariness of government and excess of administrative powers.
d) Creating accountability mechanisms for the exercise of powers and formulation of policies to the people/ representatives of the people
e) Ensuring procedural transparency of exercising all administrative powers., and
f) Providing remedies against any kind of maladministration and injustice done to the aggrieve

From the perspective of the PPSA, it is absolutely crucial that citizens are able to respond to service or conduct failures by the state in a manner that reinforces the institutions and values of our precious democracy, our ethical values and justice, and protects sustainable development and the rule of law.

Where people have lost confidence in democratic structures, it is an attractive option to sections of the population, particularly those marginalized in a socio-economic sense, to resort to protest and unrest. The PPSA serves a crucial role in reconciling citizens with the State, especially in situations in which government–citizen relations are weak, broken down, or even non-existent.

Looking at the brighter side, we must celebrate that we have institutions such as PPSA and civil society organisations that have courageous leadership and foresight to keep our government accountable. It was through our investigation that we found that the security upgrades at the home of a former President were exorbitant and unwarranted.

The investigation would later lead to a watershed moment in our history as an institution when the apex court of our land, re-affirmed our powers by stating that our remedial action is binding and cannot be ignored by organs of the state.

It was through our investigation that we found that there was an apparent abuse of power and influence on various state decisions by persons outside of the state machinery.

3.2 Action/ Agenda item 1: Compliance with and respect for the Rule of law

The Constitution provides the basis for the character of the state that is envisaged for the realisation of the constitutional vision of the country, to the extent of dictating that the state must be democratic, uphold the rule of law and operate on the basis of openness, transparency and accountability ethical standards which the executive should uphold and which include acting in the public interest.

In the recent judgment by the Constitutional Court in the ALLPAY case it was reiterated by the Court that the Rule of law is a founding value of our constitutional democracy.

According to the Court it implies that the state, in all its dealings, operates within the confines of the law and, in so doing, remains accountable to those on whose behalf it exercises power.

“The supremacy of the Constitution and the guarantees in the Bill of Rights add depth and content to the rule of law. When upholding the rule of law, we are thus required not only to have regard to the strict terms of regulatory provisions but so too to the values underlying the Bill of Rights.” Public functionaries, as the arms of the state, are further vested with the responsibility, in terms of section 7(2) of the Constitution, to “respect, protect, promote and fulfil the rights in the Bill of Rights.

The Constitutional Court also emphasised that the focus of the rule of law is upon controlling the exercise of official power by the State. The foundational principle is that agencies and officers of government, from the Minister to the desk official, require legal authority for any action they undertake, and must comply with the law in discharging their functions. Government is not above the law but is subject to it.

Renewed emphasis on efforts to strengthen the rule of law is in large part driven by a “new consensus on the importance of state building and governance”, which in essence implies that those that we have elected and authorised to manage the affairs of our country, shall govern “so long as they can protect the interest of the people or the trust the people have placed in them”.

This is how the concepts of democracy, rule by consent, and good governance came into existence in the theory and practice of government. “Constitutional Democracy” in our case is based on the premise that those elected to form a government must do so in a manner ensures that our hard earned democracy becomes a reality in the lives of every south African and deliver on the Constitutional promise of a better life for all.

The rule of law, transparency, and accountability are not merely technical question of administrative procedure or institutional design. They are outcomes of democratizing processes driven not only by committed leadership, but also by the participation of, and contention among, groups and interests in society—processes that are most effective when sustained and restrained by legitimate, effective institutions.

From a rule of law perspective, complaint handling by the PPSA bolsters the notion that government is bound by rules, and that there can be an independent evaluation of whether there has been compliance with the rules. Government accountability and the right to complain go hand in hand.

Accountability is the process and means by which public services and government are held to account for their actions, ensuring that public resources are being used in accordance with publicly stated intentions, including the (public procurement) values contained in section 217 and the (public service) standards envisaged in Sect 195 of the Constitution , Batho Pele, etc are being adhered to.

A protected right to complain against public institutions is an essential part of accountability is, which implies
a) The obligation on state institutions to explain and justify conduct.
b) Interrogation of the conduct and questioning the adequacy of the information or the legitimacy of the conduct
c) Adjudication by means of finding on the conduct under scrutiny and remedying prejudice and impropriety
d) True accountability gives visible meaning to constitutional democracy by ensuring that authorities are “fair and take responsibility, acknowledge failures and apologise for them, make amends, and use the opportunity to improve their services”.

3.3 Agenda/ Action item 2: limiting undue exercise of public power

In the matter of the Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11 the Constitutional Court emphasised that “one of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalised during the apartheid era. To achieve this goal, we adopted accountability, the rule of law and the supremacy of the Constitution as values of our constitutional democracy”.

The Constitutional Court continued that:
This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.

The Court then provided the following powerful explanation of the Role of the Public Protector in respect of the exercise of public power.

Hers are indeed very wide powers that leave no lever of government power above scrutiny, coincidental “embarrassment” and censure. This is a necessary service because State resources belong to the public, as does State power. The repositories of these resources and power are to use them, on behalf and for the benefit of the public.
When this is suspected or known not to be so, then the public deserves protection and that protection has been constitutionally entrusted to the Public Protector.

In terms of the Constitution and the Public Protector Act, 1994 the manner in which public Institutions are being held accountable consists of least three elements or stages, namely:

1. The most concise description of accountability would be: ‘the obligation to explain and justify conduct. First of all, it is crucial that the institution obliged to inform the Protector about the conduct of its officials, by providing various sorts of information and documentation about the performance of tasks, about outcomes, or about procedures. Often, particularly in the case of failures or incidents, this also involves the provision of explanations and justifications.
The conduct that is to be explained and justified can vary enormously, from budgetary scrutiny in case of financial accountability, to administrative fairness in case of legal accountability

2. Secondly, the Public Protector interrogates the conduct and questions the adequacy of the information or the legitimacy of the conduct. “Hence, the close semantic connection between ‘accountability’ and ‘answerability’ This usually involves not just the provision of information about performance, but also the possibility of debate, of questions by the Public Protector and answers by the Institution.

3. Thirdly, the Public Protector may make a finding on the conduct under scrutiny. It may approve of an annual account, denounce a policy, or publicly condemn the behaviour of an official or an agency. In making a negative finding, the Public Protector frequently imposes sanctions of some kind It has been a point of discussion in the literature whether the possibility of sanctions is a constitutive element of accountability (Mulgan 2003, 9-11).
Some would argue that a judgment by the forum, or even only the stages of reporting, justifying and debating, would be enough to qualify a relation as an accountability relation.

3.4 Agenda/ Action item 3: Protecting and promoting human rights

When making complaints about an alleged violation of human rights complainants are likely to use a combination of the legal support provided by disability organisations, legal aid clinics and citizens’ advice centres. However, two other crucial mechanisms for making these kinds of complaints include the Public Protector and the SAHRC. As I will explain below, the Public Protector in particular, has jurisdiction over a range of public sector entities that can negatively affect especially socio-economic rights (e.g. health, education, social services, justice, child welfare authorities).

As a mechanism to deal with complaints about a public authority, the Public Protector may deal with complaints about discrimination in terms of access to public services, unfair treatment by a public office or state body due to disability, or other unlawful actions, especially where local authorities or public bodies, (eg Health or social services) have a direct role in providing support and services to people whose rights are adversely affected by improper conduct in state affairs.

Impartial investigations by the Public Protector, based on domestic law (including human rights norms) and possibly also based on international human rights obligations such as the Convention on the rights of People with disabilities, may result in findings and remedial action aimed at enhancing procedures and practice to improve the protection of human.

The manner in which the Public Protector is expected to function presents opportunities for the advancement of both awareness and implementation of human rights obligations. The Public Protector does not only respond to individual complaints but has the power to undertake investigations on her own motion.

We can pursue matters where it appears that there are underlying patterns and common causes for maladministration. In this way, such a broad and systemic approach can serve as a resource for governmental institutions in identifying and preventing recurring unfairness, inaction and limited state responsiveness to the legitimate expectations of citizens. Own-motion investigations can be used to highlight systemic problems and they are also very useful to tackle problems affecting vulnerable persons who are unlikely or unable to complain to the Public Protector.

We pride ourselves in the fact that the PPSA takes the Constitutional obligation to be accessible to all persons and communities very seriously. In the 2013/14 financial year close to 2000 mobile clinics were held and 37 million people reached through our outreach activities.

3.5 Agenda/ Action item 4: Good governance and ethical conduct

Although the concept of good governance features strongly in the NDP in Chapter 14 dealing with the fight against corruption and the fact that it undermines good governance, and ultimately the effective operation of government in South Africa, the promotion and protection of “good governance” runs like a golden thread throughout the Plan as a requirement and enabler for most of the programmes and objectives stated in the Plan, including:
a) Economic growth and development through adequate investment in energy infrastructure
b) Ensuring environmental sustainability and an equitable transition to a low-carbon economy
c) An integrated and inclusive rural economy
d) Transforming human settlement and the national space economy
e) Strengthen the health system
f) Building a capable and developmental state

Ensuring good governance and corruption free delivery of public services is primarily the responsibility of the executive branch of government and domestic accountability institutions or oversight institutions such as the Auditor-general, the Public Protector, the Courts, and other Chapter 9 and 10 Institutions.

However, experience as a growing body of work in public sector management is showing that governance of service delivery schemes is improved when the state-led oversight mechanisms are combined with citizen-led social accountability initiatives and constructive engagement between the state and civil society. This is not to say that citizen led initiatives should or could substitute for the government’s primary responsibility to deliver corruption free services.

Civil society an orgnaisations such as the FW De Klerk Foundation are essential elements in promoting political liberty, preparing the way for democratic reform and improving the quality of democracy. Non-violent social movements and campaigns have a rich history of ending oppression and injustice, including forms of corruption.

When citizens fight corruption, the priorities often shift from technocratic reforms and grand corruption, to curbing those forms of graft and abuse that are most harmful or common to ordinary people, particularly the poor.

Civil society has a unique role to play, by establishing the basic normative baseline (ethically and morally) by which government actions are judged, by goading government institutions into action, by mobilizing citizens qua voters, by monitoring government performance and serving as watchdogs, and by imposing reputational sanctions.

4. CONCLUSION

I acknowledge that South Africa cannot be described as a nation which has reached its full potential, and certainly there is much to be said about what we all think the causes of that may be. The indicators of dissatisfaction and disappointment by the populace are well documented and certainly justified. It is up to us and how well we collaborate, to continue to leverage on the good and courageous work in order to diminish the bad and the ugly

Good can only prevail over bad when we hold each other accountable to ensure good governance and ethical choices that will enhance our humanity. In gatherings such as these, we need to not only share our experiences and thoughts but come up with sustainable solutions for a better future and a Soth Africa that is free from all the bad we have highlighted.

In all of this we must remain mindful that, even with all that we have achieved, there remain considerable deficits in overcoming the legacy of discrimination and the grinding effects of poverty. The evidence of this confronts us with frequent regularity, and the challenge we face as an institution and as a people, is to ensure that the promise of the Constitution is made good and realised in substantial terms by all our people.

On May 10, 1994, in a ceremony that filled people across South Africa and around the world with hope, Nelson Mandela was sworn in as president. He was not only South Africa’s first black president but also the first president chosen in competitive, free, and fair elections. In his inaugural address, Madiba declared:

“We have triumphed in the effort to implant hope in the breasts of the millions of our people. We enter into a covenant that we shall build the society in which all South Africans, both black and white, will be able to walk tall, without any fear in their hearts, assured of their inalienable right to human dignity—a rainbow nation at peace with itself and the world. . . .
The time for the healing of the wounds has come.
The moment to bridge the chasms that divide us has come.
The time to build is upon us. . . .”

As a Country and as a nation we can pride ourselves that we have been working hard and building. Our challenges remain because perhaps we might be underestimating the time that it would take to dismantle the legacy of the past that brought us here. But through the recent crisis times that we as a nation had to endure, I have also witnessed our resilience, our drive and our courage to build on our “new (democratic) past”, which is still a relatively short period of time in the history of nations. With our eyes firmly focused on the values and principles of the Constitution as our strongest foundation, I am, in closing, again reminded by something that Madiba said to us in 1999.

“.. we have cause to draw inspiration from what South Africans can do. We dare to hope for a brighter future, because we are prepared to work for it. The steady progress of the past few years has laid the foundation for greater achievements. But the reality is that we can do much, much better.

Thank you.

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