The Director General of Labour, Jimmy Manyi is an ebullient, energetic and assertive senior public servant whose urbane skills would be an asset to any government department anywhere in the world. His Minister is satisfied that he was the best candidate available for the post and he has applied himself vigorously to his responsibilities in the department since joining it.

Manyi is also a leading member of the Black Management Forum (BMF), a pressure group which has been created, and is led by him, to promote the agenda and interests of black managers.

When he was appointed as Director General, Manyi indicated that it was his intention to continue in his role with the BMF, despite misgivings voiced at the time and despite the obvious conflict of interests between the two positions. He pooh-poohed his critics, saying – no doubt with his loud and irresistibly infectious laugh – that he would be able to manage such conflict as may arise.

In much the same way, when his Minister recently required him to apologize for coolly adding a billion rand to his budget allocation request (an amount that is in any event not available in government coffers) without in any way justifying the request, he was able to segue through a select committee hearing triumphantly, without apologising. True enough, the committee chair and the serried ranks of cadres on the committee were rooting for him, while the attempts by opposition spokesmen to insist upon an apology were redolent of the type of cross examination once referred to as “being savaged by a dead sheep” in the mother of parliaments. Whether any apology has been forthcoming at any time is now also laughed off in that irresistible fashion.

As if to celebrate his finesse, Manyi then took time off from the department in order to attend to BMF matters at its constitutional symposium addressed by the President himself. Manyi used the opportunity to criticise government policy and the constitution on the troubled topic of land redistribution. During a lengthy radio interview following the conference he was careful to stress that he had taken leave and that he was speaking with his BMF hat on, not as a public servant.

Manyi’s duties as leader of the BMF certainly involve the promotion of its specific and separate mission and goals. Wearing his BMF hat and on leave, Manyi clearly considered himself free to be critical of government policy and of the supreme law of the land. He seems to think that the simple expedient of taking a day’s leave is an appropriate way of avoiding the conflict of interest situation in which he finds himself and he thereby seeks to duck his earlier critics. His complaint, at the symposium, that “We are yet to see the government taking issues of a transformational nature to court and winning them” betrays a breath-taking lack of appreciation of the usefulness of the constitution as a tool for empowering the disempowered. President Zuma corrected Manyi’s misperception by insisting, correctly, that the constitution “furthers the objectives of socio-economic transformation” and is “a sacred document that guides our constitutional democracy.”

Manyi’s gyrations do not stand up to proper scrutiny: as Director General of Labour, Manyi is constitutionally obliged, all day every day, to loyally execute the lawful policies of the government of the day. This requirement of the law is supplemented and fortified by several of the basic values and principles governing the public administration. They too are contained in the constitution as a “must” for our public servants who are paid out of the public purse. Firstly, a high standard of professional ethics must be promoted and maintained. In the present context this means that loyalty to and service of the ministry ought to trump the extraneous interests which Manyi may choose to pursue. His Minister has sworn an oath of office which asseverates his duty to respect and uphold the constitution. These considerations ought to preclude Manyi from undermining and criticising the constitution. But they do not. This is apparent from the wide media coverage of his efforts in his capacity as leader of the BMF. Secondly, Manyi is obliged to provide services to the public “impartially, fairly, equitably and without bias”. These requirements do not sit comfortably with the role Manyi has chosen for himself in the BMF, because it is pressure group punting its own interests.

A conflict of interest is regarded, in the present context, as a situation in which a public official has a private interest that may improperly influence, or appear to influence, a public decision. It can be thought of as any inconsistency, clash or conflict between public duties (such as those sketched above) and private interests (such as those set by the BMF).

Manyi is not successfully managing the conflict of interest situation in which he has placed himself as a result of continuing in his role in the BMF. It is simply not possible for him to loyally and ethically serve the people of South Africa impartially, fairly, equitably and without bias while he is also loyally serving the sectional interests of the BMF. The clash is obvious and intractable. The interests of the BMF are manifestly not the same as those of the people Manyi is constitutionally obliged to serve in unbiased fashion.

To make matters worse, Manyi has chosen to conflate the requirements of the Employment Equity Act, which his department administers, with those of the BEE legislation in the domain of the Department of Trade and Industry. This may suit his BMF agenda, but it is not the function of his department to behave in this way, however much it suits the aims of the BMF. It also means that he undervalues inherent job requirements in favour of promoting BEE, which is not the core business of his department.

What then is the remedy when a public servant allows himself to fall into a situation of intractable conflict of interest? Taking a day’s leave to attend to the private interest is no solution at all. The loyalty required by the constitution can not be turned on and off like a tap, it must be sustained 24/7 and all year round. Manyi must be put to the choice that has to be made: either he is a full time loyal public servant of the people of South Africa, as the law requires him to be while he is director general, or he is not. A resignation from one or the other position is the inevitable solution to the conflict situation in which Manyi finds himself. He can not just laugh off the situation as “manageable”. His actions of late, particularly his unwarranted criticism of the constitution, show that he has overstepped the bounds of propriety and legality. He is no longer in a conflict of interest situation, his actions have placed him squarely beyond the potential for wrongdoing and into the realm of violations of the principles by which all public servants in South Africa are obliged to function, all day, every day.

What then if Manyi declines to give up one or other of the conflicting positions in which he finds himself? He is, after all, not the only public servant in this type of situation, just the most high flying and unapologetic of a species. If, as seems likely, the Minister is not prepared to replace him, the only other office available to address the situation is that of the Public Protector. It is a function of the Public Protector to investigate any conduct in the public administration that is alleged or suspected to be improper or to result in any impropriety or prejudice. There is a concomitant power to take appropriate remedial action. The Public Protector is accessible to all persons and communities, which means that anyone is free to lodge a complaint concerning the impropriety of the situation in which Manyi has chosen to place himself.

Perhaps it is time for Manyi to familiarize himself with his constitutional obligations and make the necessary choice.

Paul Hoffman SC
9 May 2010.