1.INTRODUCTION

1.1 The Institute for Accountability in Southern Africa (Ifaisa) welcomes the opportunity advertised by the Ad Hoc Committee (AHC) on 15 January 2009 to participate in its enquiry into service delivery. It is suggested that this submission be made available to those government departments which will be addressing the AHC between 2 and 4 February as well as to all members of the AHC. The report of the AHC, its recommendations and its proposed implementation plan could play a constructive role in the improvement of service delivery, without which the promised “better life” for all South Africans promised in the Constitution will remain beyond the reach of too many poor and marginalised people who reside in South Africa, whether as citizens or otherwise.

1.2 Ifaisa has identified the principles of accountability and responsiveness to the needs of the people as two of the crucial foundations of constitutional democracy upon which to create a reality which accords with the ideals and promises of the new dispensation created in the Constitution which came into force in February 1997. These matters are discussed in more detail at www.ifaisa.org, especially on the accountability page of that website.

1.3 Members of the AHC are invited to visit the Ifaisa website and to keep their Constitutions at hand when considering the points Ifaisa makes in relation to specific sections of the Constitution, which are identified by number with the prefix “C” throughout this document. Ifaisa’s submission views the Constitution as the main relevant, binding and appropriate framework within which proper service delivery is achievable through constructively working together in the organisational structures it creates to attain the levels of service delivery that it requires in order to respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights. [C 7(2)] The values and principles according to which the public administration is meant to function [C 195(1)] do not appear to receive sufficient attention in the public administration when issues of accountability, human resource management and responsiveness to peoples’ needs come under scrutiny, as they surely will during the deliberations and activities of the AHC.

1.4 In order to give this submission a structure which pertinently draws the attention of the AHC to the relevant provisions of the Constitution, it is focused upon those aspects of the Constitution which Ifaisa submits ought to be uppermost in the minds of the members of the AHC when they engage in their oversight and other functions, especially during their deliberations. It is accordingly intended to make reference to the founding values which are relevant, to the aspects of the Bill of Rights which we consider should engage the attention of the AHC, to the good governance values and principles which have possibly been neglected in the past and to means available to bring the reality of daily life in SA more into line with that which the Constitution promises to all who live in our lovely land.

2. FOUNDING VALUES

2.1 Our Republic is founded on the supremacy of the Constitution and the rule of law [C1 ( c )]. Due to the political dominance of the governing alliance, sight is sometimes lost of the difference between party and state in the daily political discourse in the land, and the centre of power is shuffled between Luthuli House and the Cabinet in popular political debates, when, in truth and in law, the Constitution reigns supreme. This is reinforced by its provisions that law or conduct inconsistent with the Constitution is invalid [C 2] and that the obligations imposed by the Constitution must be fulfilled [C 2] diligently and without delay [C 237]. This is the fundamental difference between the old and the new South Africa. Parliament was sovereign in the old system whereas the Constitution enjoys that status now.

2.2 This means that service delivery has to take place within the parameters set by the Constitution and not according to the whim or fancy of any party political formations which may find themselves at any given time manning the levers of governance which are created in terms of the Constitution in all spheres of government and in the laws at national, provincial and municipal levels that are all consistent with it. Only lawful policies need be executed by the public administration [C 197(1)].

2.3 The Constitution means, in the final analysis, what the Constitutional Court says it means [C 165].

2.4 Our multi-party system of democratic government ought to be so well structured and effectively and efficiently functioning as to ensure accountability, responsiveness and openness. [C 1 (d)]. The rule of law is supportive of these values. It has been defined by the World Justice Project (www.worldjusticeproject.org) as conformity to four universal principles:

I. The government and its officials and agents are accountable under the law.
II. The laws are clear, publicized, stable and fair, and protect fundamental rights, including security of persons and property.
III. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient.
IV. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

2.5 The Rule of Law Index 2.0, produced scientifically by the World Justice Project in respect of South Africa, is informative regarding the state of the rule of law in our country and ought to receive the consideration of the AHC with regard to areas in which scores are low as these indicate that improved service delivery is required. The nation’s score for accountable military, police and prisons officials is 0.47; our laws that protect the security of the person score only 0.44 and in the efficient, accessible and effective judicial system category our score is an embarrassing 0.48. [a perfect score is 1.0]

2.6 Accountability itself is a word often used in the context of service delivery, but the concept is seldom properly understood. When those in positions of authority, be it political or administrative authority, are required (by those who elect or appoint them) to reasonably explain their conduct and to justify their decisions properly, then the conditions for exacting accountability may be said to be in place. The public administration, which is tasked with providing service delivery [C 195 (1)] accountably and transparently, is answerable to the public for what it does and does not do in fulfilling its functions. Professionalism and impartiality are basic requirements for proper, constitutionally compliant public administration [C 195 (1)]. Both are notably absent in the public administration of South Africa. This has led to deterioration of service delivery in a number of key areas and consequently to protest action by the public ranging in its illegality from rates and rent boycotts to violently destructive criminality involving malicious damage to property, assaults, disruption and even loss of life. This presents problems in addition to the challenges alluded to in the AHC’s advertisement. As long ago as 1992 a former cabinet member in the government of Sierra Leone highlighted the difference between situations and problems in his collapsing country by pointing out that potholes that appeared in the roads were driven around and when the electricity supply failed everyone lit candles because they thought they had “situations” when it was problems of considerable magnitude that they were facing. He blamed the tendency to confuse the two for the parlous state of affairs in his country. His words are worth quoting:
“We have a tendency to confuse problems and situations, the electricity supply did not deteriorate to its present state overnight; it gradually got worse while we bought candles. There were holes in the roads – small ones to begin with – that gradually got bigger as we drove around them. The electricity supply and the roads should have been dealt with as soon as the problems became apparent. But we did nothing. Instead of dealing with the problems, we simply accepted them as situations that we should adapt to.”

2.7 Problem solving is what the report, recommendations and proposed implementation plan of the AHC must be directed towards if the slide to a Sierra Leonean future is to be averted. We can learn from the hard lessons learned elsewhere in post-colonial Africa by actively creating a better future for South Africa. One in which responsiveness to the needs of ordinary people, as identified and guaranteed in the Bill of Rights, is given priority in all that the political elite decides and all that the public administration does. The needs of ordinary people are identifiable from the Bill of Rights. It encapsulates the promise of the new South Africa and reflects the aspirations of all who participated in the arduous process of achieving the national accord which preceded the formulation of the Constitution, including the Bill of Rights.

3. THE BILL OF RIGHTS

3.1 Central to the role of all constitutional governments in the social contract between citizens and state is that proper security of persons and property is provided by the state in exchange for the loyalty and support, via taxation, of its people. The groundbreaking first judgment of the Constitutional Court, S v Makwanyane and another 1995(3) SA 391 (CC), places the security of persons into its proper constitutional perspective in the context of the abolition of capital punishment in accordance with the values that inform our new order. Our Bill of Rights has a variety of provisions regarding security as a fundamental feature: rights to life, dignity, freedom from violence and slavery, a protected environment and to property itself are all guaranteed. [ C 10, 11, 12, 13, 24 and 25 ]

3.2 The security of the nation is the responsibility of the security services as against foreign aggression and the police service as regards locally based criminality [ C 198 and 205 ]. Some soldiers rioted at the Union Buildings last year; the commission of enquiry appointed to look into their grievances found that the defence force is in disarray. During the debate on the dissolution of the DSO (Scorpions) the then Deputy Minister of Justice, Adv Johnny de Lange (now MP) indicated that the criminal justice system of the country, (courts, police, correctional services and social services) is dysfunctional. This submission accords with our poor score of .48 for the judicial system on the Rule of Law Index 2.0.

3.3 While there is no discernable threat of foreign aggression against the country at present or for the foreseeable future, the levels of crime in many provinces, especially those that are prosperous and have the lowest unemployment, is unacceptably high and unnecessarily violent. Far too few criminals are brought to book and far too little is done to address the problems which Adv. de Lange identified when he told Parliament that the criminal justice system is dysfunctional. The institutional memory built up during his tenure in the ministry has apparently been lost and a new leadership in the security cluster seems to be starting from scratch without proper regard to the information which led to his pronouncement.

3.4 Our soldiers are, by and large, too old, too fat, too unfit and too ill trained to be of much use to the country. They are also underpaid, sickly and dispirited. Do we need as many as we have, particularly those of the quality that resort to storming the Union Buildings like a disorganised rabble, rather than a loyally patriotic and disciplined organization, in order to get attention drawn to their real and/or perceived problems? The AHC should consider whether our true defence needs as a nation have been effectively and efficiently addressed by the acquisition of over-priced and unusable armaments which our flabby military personnel are unable to utilize both because the arms in question are not needed and because not sufficient numbers of them are trained in their use. The amount spent on the arms deals approximates the deficit on the current account of the country. Cancelling the arms deals and reclaiming the money spent on them is an option, if the fraud and corruption alleged in respect of the “arms deals” transactions is properly investigated. It may also be timely to consider the introduction of a “peace corps” organisation along the lines of that used in the USA. Costa Rica, the happiest country in the world, does not have a defence force despite its geo-politically vulnerable situation.

3.5 A key element in our criminal justice administration is a National Prosecuting Authority (NPA) which functions without fear, favour or prejudice. [ C 179]. The Constitutional Court, as final arbiter of such matters, has held that this means that we should have an independent NPA. The Executive, or at least the President, and the current National Director of Public Prosecutions, Adv Menzi Simelane, have other ideas about this vital feature of the organization of government. They deny the independence of the NPA and appear to regard it as a part of the Justice Ministry answerable to the Minister of Justice. While the Minister does have final political responsibility, the accountability and policy making powers in respect of prosecutions are those of the NDPP, and him alone. [ C 179 ]. Litigation is pending aimed at removing Simelane from office on the basis that he is not a fit and proper person to be the only public servant with policy making powers conferred on him in terms of the Constitution. The reasons behind his appointment are highly questionable. An efficient and accountable NPA can not possibly emerge under his leadership. Proper service delivery by the NPA is critical in the all important fight against crime.

3.6 While crime remains at the current unacceptably high levels, insecurity for ordinary people will continue and the conditions for economic growth in a legitimate fashion will remain hobbled. Correctional services remain dysfunctional and corrupt despite the work done by the Jali Commission of Enquiry. The prisons are overcrowded to such an extent that the human rights of inmates are continuously infringed. Very little rehabilitation takes place with prisons serving as universities of crime from which inmates emerge as brutalized and anti-social criminal who offend again.

3.7 The Premiers of those provinces in which the rate of crime is particularly high should be encouraged by the ADC to appoint commissions of enquiry into the inefficiency of the police and the break downs in relations between police and community which characterise the lack of proper service delivery in the criminal justice sector [C 206(5)]. There is no “one size fits all” solution to the incidence of crime, different recommendations are needed to deal with the practice of witchcraft in Limpopo and the presence of gangsters on the Cape Flats.

3.8 Consideration should be given to depoliticizing the Judicial Service Commission (JSC) by replacing some or all of the politicians who serve on it with retired judges and representatives of civil society. Its powers should be extended to recommending the appointment of the NDPP as suggested by Deputy President Motlanthe when he was President. The reconstructed JSC should be encouraged to make appointments to the Bench on merit, with due consideration for gender and race representivity, but not on the basis that race and gender are anything more than factors to be taken into consideration [C 174(2)]. If there are not sufficient able and worthy judges in the land, the rule of law is placed in jeopardy to the detriment of the criminal justice system, the economy and the security of all who live and work in SA.

3.9 Equality is the area in which SA has retrogressed most since the dawn of democracy. Equality includes the full and equal enjoyment of all rights and freedoms [C 9(2)]. Unfair discrimination has been outlawed [C 9(3)] and everyone is regarded as equal before the law [C 9(1)]. SA is now the most unequal country in the world according to those who monitor the Gini co-efficient of countries around the world.

3.10 Our levels of inequality are pernicious and undermine the ethos of freedom and dignity which is at the core of the value system constitutionally in place. These levels of stark inequality are also not sustainable as can be seen by the fact that we have some 13 million welfare recipients and only around 5 million individual income taxpayers. The Bill of Rights requires that to promote the achievement of equality, legislative and other measures designed to protect and advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. [C 9 (2)]. Instead of concentrating on education and training, skills development and mentoring, a raft of affirmative action and BEE measures has been adopted by government. These have served to advance the interests of those least discriminated against while leaving those most discriminated against worse off than before in material terms. Worse still, even though there is no reference to race in C 9(2), race based criteria for the beneficiaries of AA, BEE and BBBEE have been set, making a mockery of the non-racial basis of our new order [C 1 (b)]. Only in the judiciary and public administration should race be a consideration, [C 174(2) and C 195(1) (i)], instead it has become a new defining characteristic across the board. This is hardly the way to go about building a non-racial society in which the “unity in diversity” we seek [C Preamble] flourishes.

3.11 Many of the type of deals that have been concocted pursuant to the measures taken do not add value to the economy and some are unravelling in the tough economic climate brought about by the global, greed inspired, financial crisis. Major banks, all foreign owned, turn out to be the main beneficiaries of BEE, hardly the intended consequence. This has led to imprudent calls for nationalization of mines from some quarters, calls that do immeasurable damage to the international standing of the country and to its attractiveness to foreign investors and their local counterparts, who have the capital necessary to expand the SA economy and thereby create jobs, security and dignity for ordinary people. Because of the, apparently overlooked, provisions of C 25, nationalization through expropriation would cost the state a fortune, as it would be illegal and unconstitutional to expropriate without compensation.

3.12 Proper service delivery cannot take place in a society riven by the ongoing and worsening inequality present in SA. Ability to pay becomes the criterion according to which services are delivered, to the detriment of the poor. So, for example, in the leafy suburbs private security contractors are engaged to fill the void left by SAPS inefficiency and ineffectiveness and their operatives protect persons and property for a fee. In townships and poor rural areas the residents can not afford private security services and are preyed on with impunity by criminals who are not willing to take the risk of being apprehended in those areas in which private security companies render their services. The same applies to the provision of health care, education and other services. This creates a downward spiral which can only be reversed if well considered measures to promote the achievement of equality are taken. Chief among these is education. Constitutionally compliant affirmative action is perfectly acceptable if it is implemented in a balanced fashion. The policies in terms of which the current manifestations of affirmative action are implemented should be revisited in order to enhance the prospects of a viable and sustainable system which truly promotes the achievement of equality across the board, rather than enriching a few politically well connected moguls.

3.13 Basic education has been guaranteed to all since the dawn of our democracy. [ C 29 (1)].

3.14 Despite what the Executive says, in the recent green paper put out by Minister Collins Chabane, and does, in all the education departments, this is a right that has been due and claimable by all, child and adult alike, since day one.

3.15 It is not a right that is subject to progressive realisation in the light of available resources as is the case with the socio-economic rights to housing, health care, food, water and social security [ C 26 and 27] in respect of which reasonable measures within available state resources to achieve the progressive realisation of each of these rights is contemplated [ C 26(2) and 27(2)].

3.16 There has been a dramatic, sustained and disgraceful failure to deliver on the constitutionally guaranteed right to basic education in the new SA. Matric results mask both the pre-matric drop out rate which is unacceptably high and also the fact that many of those who do get a matric certificate are actually functionally illiterate to the extent that tertiary education is beyond them and jobs in the private sector are unattainable. Only the public sector job opportunities beckon this large group. 3.17 At the end of 2007 only 42,000 out of 278,000 Black matriculants were functionally literate. This out of 1,19 million who started school 12 years earlier. The state can hardly question the validity of the qualification it has conferred and so the functionally illiterate job seekers enter the public service to do work which actually requires functional literacy. The inevitable result of this is inadequate or poor service delivery. More recent matric results do not give any cause for suggesting that the position has improved in the last two years, on the contrary, it has worsened.

3.18 The Courts have described the public administration as “terminally lethargic” and “at war with its own people”. This is the consequence of the employment of junior personnel who are incapable of carrying out the tasks assigned to them. Police constables who can not write down a statement, social security clerks who can not assist with the formalities of applying for a social assistance grant and so on are the unavoidable result of giving matric certificates to the functionally illiterate and then employing them in the public administration. 3.19 It is the obligation of the state to respect, protect, promote and fulfil the right to basic education. [C 7(2) read with C 29(1)]. This is not happening on a massive scale with deleterious consequences for the youth, the economic development opportunities in the country, the incidence of crime by the unemployable and desperate drop-out underclass and the achievement of equality on a non-racial basis. The paucity of adult education facilities that are accessible to the illiterate adult population thirsty for basic education has the effect of perpetuating poverty.

3.20 Radical steps are required to address the inability of some schools to deliver. The organizational structures in place need to be re-visited and the teachers and principals in schools need to be properly empowered, rather than regarded as functionaries in a “production unit” by departmental managers who are denying them their professionalism and a career path that would be attractive to a school leaver with a good matric pass. Urgent steps along the lines recommended in the “road map” of the Development Bank of SA and those propagated by Mampela Ramphele should be considered by the AHC and rapidly put in place. A special effort needs to be directed towards the “lost generation” of twenty-something year old youths who don’t work, don’t have an education and don’t have any hope for the future beyond casual and sporadic menial work. The system has let them down, they deserve better.

3.21 Housing is an area in which service delivery has failed to live up to the expectations of millions of shack dwellers still stuck in undignified and inadequate housing. Everyone has the right to have access to adequate housing [C 26].

3.22 The promise of an RDP house to the millions who live in informal settlements around the economic hubs of the country has not been met. Billions of rand have to be spent on tiny houses improperly built by shoddy contractors appointed pursuant to questionable tender procedures. The AHC should give its consideration to the question whether, given the changed economic circumstances in which the world economy finds itself, it is appropriate to afford access to adequate housing on the basis of the policy behind the RDP housing scheme. In the changed economic circumstances it will take decades to deliver the houses needed. Might it not serve the national interest better if a site, service and skeleton scheme is also introduced and consumers are given choices that may be more palatable and affordable than a complete box-like RDP house? A foundation slab and roof which comes with basic services such as water, sanitation and electricity, in short the skeleton of a home, may be more attractive than an impossibly tiny and badly built complete house.

3.23 The levels of corruption in the provision of state sponsored housing need to be given consideration as corruption is always inimical to proper service delivery. Means of dealing effectively with the corrupt must be put in place, soon. Corruption in the public administration has the effect of stealing from the poor.

3.24 Health care services in SA are not above criticism. The legacy of AIDS denialism apart, (too many sufferers still go untreated) there are causes for concern in the manner in which the public health care sector is organised and structured. The Minister of Health publicly admitted on 8 January 2010 that management in his department “frightens” him. As with teachers, the essential professionalism of the doctors and other health care professionals in the public health care sector has been undermined so seriously that state hospitals are regarded as “production units” without due regard to the professional status which these qualified medical professionals ought to be entitled to enjoy if the system is to function effectively and in a constitutionally compliant manner [ C 27 read with C 195(1)].

3.25 The introduction of a national health scheme is only feasible if the public health sector is fully functional. It is not. A separate memorandum dealing specifically with the organisational issues involved in the structuring of the public administration accompanies this submission. There is much that needs to be done to address proper service delivery in the health sector.

3.26 Food and water are classified as socio-economic rights to which all should have access. [C 27 (1)]. The rights of children, and in particular their best interests, are of paramount importance [ C 28(2)]. It is unfortunately true that there are children in SA who go to sleep hungry. This should not be tolerated in any accountable organization. As regards water, there are complaints coming in from people living in various municipalities that water quality is being adversely affected by failure to maintain sewerage treatment plant and equipment and by irresponsibility on the part of municipal officials. Rivers polluted by raw sewerage and industrial pollutants feature in the news with monotonous regularity. The pollution left by mines that are closed is a serious problem ( as is their illegal exploitation) and in some areas, notably on the Garden Route, the water supply itself is under stress. The way in which policies in regard to water work is that it is made available to those who can afford it. This is effectively anti-poor and can hardly be what the founders of the Constitution had in mind.

3.27 If the predictions of scientists who study global climate change are reliable, then the ability of the state to provide food and water needs to be carefully stewarded if water and food security is to be maintained. It is a serious dereliction of duty, and of proper service delivery, for municipalities to do anything prejudicial to water and food security. Complaints in this regard both from toyi toying protesters and from local ratepayers associations such as the NTU (National Taxpayers’ Union) need to be taken seriously and acted on swiftly.

3.28 Social security is being provided to some 13 million fellow South Africans. Though laudable, this is not sustainable in the current economic climate and will fail in time as taxpayers crumple under the burden involved, unless remedial steps are taken in the educational and economic sectors to address the conditions which give rise to so many being eligible for social security and so few being fit for work of a skilled and semiskilled nature.

4. THE BASIC VALUES AND PRINCIPLES GOVERNING PUBLIC ADMINISTRATION

4.1 Our public administration “must” be governed by the democratic values and principles enshrined in the Constitution, referred to above, and including the principles set out in the chapter concerning the public administration [C 195(1)].

4.2 For the purposes of this submission, only some of the principles will be highlighted. This is not because all of the principles are not equally essential, and indeed constitutionally prescribed requirements, but simply because Ifaisa regards the principles highlighted to be of particular relevance to the deliberations of the AHC.

4.3 The first of these is that a high standard of professional ethics must be promoted and maintained in the public service. Far too many public servants are corrupt, disinterested, dispirited or downright lazy. These features are the antithesis of what is required and explain the lack of proper service delivery at every level. In far too many departments of state, at every level from national to municipal, telephones go unanswered, correspondence is ignored or perhaps acknowledged and then forgotten, piles of unsorted files stand in passages and the smell of fried chicken hangs in the air from around 11am to well past 3 pm. These are not indicators of a professional, efficient and effective public service. The structures of the public administration ought to be supportive of the professionalism necessary to have a well functioning public service. They are not.

4.4 There is instead an informal system of cadre deployment grafted on to the structures created by law which system has been implemented by the governing alliance in pursuit of its avowed intention to have safe party hands on all of the levers of power in society. While some deployed cadres in the public administration are able to function at an acceptable level, far too many of them are there to do the bidding of the cadre deployment committee that appointed them to national, provincial or local level positions. This undermines the accountability structures in the public service.

4.5 The cadres feel accountable not to their employer but to the committee of the alliance that assigned them to the position in question. Not surprisingly, the High Court has struck down cadre deployment as illegal and unconstitutional in a case concerning the appointment of the municipal manager in the Amatole district of the Eastern Cape. Nevertheless, cadre deployment continues with scant regard to the judgment of the Court.

4.6 The AHC should study the judgment, Mlokoti v Amathole Municipality and Another, and see to it that unsuitable cadres are redeployed outside the public administration and that the practice of cadre deployment on a basis lacking in impartiality and professionalism in the public service is discontinued. If a high standard of professional ethics is to be maintained then the legally prescribed methods of appointing staff on merit should be scrupulously observed. This does not necessarily disqualify all cadres, it simply dictates that suitably qualified and competent personnel are a basic necessity in any well functioning public administration. The President has already indicated, in his 8 January statement, that he does not want party political office bearers to be deployed at municipal level. Party political officer bearers ought not to be deployed at any level because the public administration is constitutionally required to be impartial, fair, equitable and without bias. [C 195(1)(d)]. Party political office bearers can not live up to these requirements.

4.7 It is impossible to comply with these requirements and be true to the sectional interests of a political party. The conflict of interests is both obvious and intractable. How, for example, can Jimmy Manyi be Director General of Labour and wear his Black Management Forum hat at the same time? He can not be impartial as DG and serve the sectional interests of the BMF at the same time. Yet he is allowed to do so in clear conflict with the case law and the Constitution. How can Menzi Simelane regard himself as capable of functioning without fear favour or prejudice while simultaneously advocating the sectional interests of the ANC, in particular its decision to disband the DSO? He even took leave when he was DG of Justice so that he could sell the idea of dissolving the DSO to party members in KwaZulu-Natal. This does not cure his pro ANC bias nor is it appropriate that he sees himself as the implementer of the ANC’s vision for the NPA. He ought to be independently creating his own vision, without fear, favour or prejudice.

4.8 There are many other examples of cadre deployment in the public administration that clearly fly in the face of the requirements of the Constitution. They should be ended simply because they are illegal and have the effect of debasing the public administration which is meant to be built on personnel management practices which are based on ability, objectivity, fairness and the need for redress of past imbalances. [C 195 (1) (i)]. The deployed cadres, although employed in the public service, feel answerable to the party cadre deployment committee that landed them the positions they occupy. This undermines accountability, which is split between the employer and the cadre deployment committee. Gwede Mantashe has called this type of procedure, in relation to directors general, a “recipe for disaster”. He is right, cadre deployment can not be continued if service delivery is to become as efficient and effective as the Constitution requires it to be [C 195 (1) (b)].

5. SUGGESTED RECOMMENDATIONS

5.1 Ifaisa respectfully submits that, but for the dysfunction in the JSC which is structural in nature, the constitutional framework in respect of state services in all spheres of government and the proper delivery of same described in this document is both sound and the appropriate framework within which to seek solutions to the current failures of service delivery at all levels in the public administration.

5.2 A lack of proper accountability is manifestly endemic in our public administration. In its “turnaround strategy” for local government the relevant department has already identified this as a problem. The lack of accountability is also unconstitutional if due regard is had to C195 (1) (f).

5.3 If the members of the AHC are to remain true to their oaths or affirmations of office, [ C schedule 2 item 4] then those facts and features they uncover during the hearings which amount to unconstitutional conduct will have to be ended in the implementation of the recommendations the AHC is required to make. Fortunately for the AHC there are initiatives and structures in place that can be of assistance to it in formulating its recommendations and implementation plan proposals. These are mentioned elsewhere in this submission.

On security:

A. The terms of reference of the commission of inquiry into the soldiers’ riot at the Union Buildings should be extended by the President to enable it to further investigate the health of the military and the possibility of introducing a peace corps type of organization along the lines seen in the USA.

B. Premiers should be encouraged to give consideration to using the mechanism provided by C 206(5) in order to formulate province specific recommendations for dealing with inefficiencies in the SAPS and break downs in its relationships with communities.

C. The Jali commission into Correctional Services should be revived with a view to dealing anew with ongoing corruption and inefficiency in its facilities.

D. Steps to secure the independence of the judiciary and the judicature (NPA) by amending the Constitution to depoliticize the JSC and to give it the power to recommend candidates for appointment as NDPP should be considered.

E. A judicial commission of enquiry into the arms deals should be appointed with a view to uncovering any possible corruption and seeking grounds upon which the transactions in question can be cancelled in order to recoup the expenditure incurred.

On equality

F. Revisit C 9(2) and reconsider the efficacy of affirmative action measures and strategies from the perspective of their constitutional purpose which is to promote the achievement of equality.

G. Consider putting a sunset provision in place in respect of affirmative action.

H. Consider deracialising all affirmative action measures so that those truly disadvantaged in the past can become beneficiaries, irrespective of their race.

On education

I. Empower educational professionals by restructuring the “production units” that schools have become into accountable professional sources of proper service delivery in which educators can properly exercise their calling.

J. Appoint an inspectorate of schools to identify dysfunctional teachers, retrain them (with due regard to the language of instruction) and if necessary weed out those who are unresponsive to retraining; if this requires the clipping of unions wings, so be it.

K. Consider the roadmap of the Development Bank of SA and

L. Consider the recommendations made by Dr M Ramphele, both in relation to addressing problems of service delivery of the right to basic education.

On socio economic rights

M. Reconsider the promises of an RDP house in the light of changed economic circumstances and consider alternatives to complete houses.

N. Criminally investigate corrupt and non-delivering contractors.

O. Train and correct municipalities which are failing in their provision of municipal services especially water, sanitation and electricity.

On the values and principles that pertain to the public administration

P. Abolish deployment of unsuitable cadres in the public administration and insist on appointment on merit of all public servants.

Q. Create organizational structures in accordance with good human resource management and career development practices.

R. Improve the skills of illiterate matriculated employees in the public administration after testing all junior ranks for their functional literacy and dismiss those who are incapable of responding to literacy training.

6. Conclusion

6.1 Much of what is going wrong with service delivery can be attributed to unsuitably deployed cadres, corruption and the concomitant pervasive disconnection with the values and principles of the Constitution which currently inform the public administration. The corruption of the new SA started with the arms deals and, because of the position of those involved, has permeated far too many facets of service delivery in the public administration. The tender system is open to abuse, bribery is endemic and kick-backs on contracts or services seem to be expected all too often. Unless and until the allegations of corruption in the arms deals are properly, openly and accountably dealt with, this albatross will continue to affect the rate of service delivery detrimentally. Far too much energy is expended covering it up, energy which would be better spent running the country properly and in accordance with the Constitution. A dysfunctional criminal justice system is incapable of dealing with matters of this gravity in the normal course of its duties.

6.2 A commission of enquiry into the arms deals run by retired judges will, irrespective of its findings, bring welcome respite from the culture of corrupt entitlement abroad in the public administration. It is a culture which is incompatible with proper service delivery. The “Robin Hood syndrome”, in which the taxpayer is the victim and the governing elite the beneficiary, does not sit comfortably with constitutional democracy under the rule of law. Proportional representation as the only means of electing parliamentarians makes them accountable to party bosses instead of to the people who elected them. Cadre deployment in the public administration makes cadres accountable to the party committee that appointed them instead of to the public and their superiors in the public administration. Neither of these phenomena serves the greater good of the country. The AHC has an opportunity via its report to make a positive difference. Ifaisa is prepared to assist the AHC in any way that it can to make a positive difference to the levels of service delivery which the AHC will have to investigate in the course of its work. If the AHC requires oral expansion of this submission, it can be arranged.

Prepared by:
Advocate RP Hoffman SC
on behalf of the Board and Trustees
January 2010