Misconduct relating to fraud and corruption in the public service

In an article, “Corruption and Governance Challenges: The South African Experience”,1 the Public Protector commented that corruption and good governance sit at the opposite ends of the spectrum. While good governance represents the ideal for governments, corporations and nations globally, corruption is a scourge that decent people, organisations and governments seek to eradicate. In the simplest of terms, corruption involves the abuse of power for private gain.The Public Protector further stated that it should be a concern to everybody that in post-independence Africa, certainly in South Africa, the accumulation of riches (in most cases, very sudden) is venerated even in the absence of visible means of accumulating the riches. South Africa has battled with corruption since the days of apartheid. Post-apartheid South Africa is a more open society and more opportunities have been created for detecting, exposing and prosecuting corruption. South Africa‟s approach to corruption is multipronged. The main pillars according to the Public Protector are the law, anti-corruption agencies, and public mobilisation.This studyhas attempted to attend to the challenges of managing misconduct relating to fraud and corruption that appear to weaken our democracy. Fraud and corruption is a complex phenomenon that requires managers and supervisors to possess a specialist technical knowledge in order to be effective in punishing those that are involved in this type of misconduct. The tendency currently is for the managers and supervisors to place suspected corrupt employees on a prolonged pre-cautionary suspension for a period that is not supported by law. This of course weakens the employer‟s case as they tend to rely on the outcomes of the proceedings in the criminal procedure before they institute disciplinary action against such culprits. Workers could be criminally prosecuted for this type of misconduct in terms of the provisions of the Prevention and Combating of the Corrupt Activities Act. Employers always enjoy the right to criminally prosecute workers who have committed acts of fraud or corruption but that must go concurrently with the institution of the disciplinary proceedings in terms of the collective agreement, if there is any. This study will show that the act of misconduct relating to fraud and corruption is a complex phenomenon that poses a threat to the global security. This study also takes a closer view of the provisions of international instruments and institutions such as the United Nations and International Labour Organisation. It further, does a detailed analysis of the provisions in other foreign jurisdiction like Canada. This is consistent with the provisions of the Bill of Rights as enshrined in the Constitution:Section 39(1) of the Constitution of the Republic of South Africa demands that when interpreting the Bill of Rights, a court, tribunal or forum – a. Must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; b. Must consider international law; and c. May consider foreign law. Section 1 of the Labour Relations Act, states that the primary objects of the Act are: (a) To give effect and regulate the fundamental rights conferred by section 23 of the Constitution; (b) To give effect to obligations incurred by the Republic as a member state of the International Labour Organisation. Section 3 of the LRA further stipulates that any person applying this Act must interpret its provisions – (a) To give effect to its primary objects; (b) in compliance with the Constitution; (c) in compliance with the public international law obligations of the Republic. This treatise further shows the importance of the Constitutional values and principles that govern the Public Administration in terms of Chapter 10, section 195.Of importance the elements of fraud and corruption are discussed in this study.This study also gives a detailed analysis of the case laws that give guidance on how best to deal with and successfully punish employees involved in misconduct relating to fraud and corruption