Dear Corruption Watch: The head of the Independent Police Investigative Directorate [in Gauteng] has been suspended while being investigated for nepotism. And this is the watchdog for misbehaving police personnel! But I wonder: we are all told of the value of social solidarity, of community members assisting each other to get ahead. Why, then, does nepotism in public sector appointments or other forms of appointment constitute corruption? And if it is corruption, is it criminal?


Keeping It in the Family

Dear Keeping It in the Family

Nepotism is giving your family or friends an advantage such as a job or a promotion, or some other benefit.

Not every appointment of a family member or friend is nepotism. If the person is otherwise qualified to be appointed, the fact that they are related to the appointing official should not prevent their appointment. It is when the person is appointed because of their intimate connection that it amounts to nepotism.

If you run your own business, you can hire your son, your daughter and all your nieces, nephews and cousins (although that might not be a great business idea). Most large corporations will have human resource policies to prevent nepotism – but it is not otherwise unlawful.

In South Africa, however, our history should prompt companies – particularly those listed on the JSE for which reputation has a value – to be mindful of the consequences of nepotism. In a predominately white business sector, it could perpetuate a barrier to the deracialisation of employment opportunities.

But the public sector is different. The public service belongs to all of us. It exists solely to provide services to the public. Any person who is running a government department is merely a caretaker. They do not own it, they are managing it as servants of the people.

Accordingly, the public service cannot be used to benefit the friends or family of whoever happens to have the ability to control hiring and firing decisions.

However, nepotism in the traditional sense does not constitute corruption. The corruption act requires that there be an exchange of benefits – I give you a bag full of cash, you give me a job or a tender. There is no similar exchange in nepotism – I give my daughter a job because she is my daughter; I do not expect anything in return from her. Generally it will not amount to a criminal offence, unless there was dishonesty involved, in which case it may amount to fraud.

Nepotism in the public service is not lawful

However, that doesn’t mean that nepotism is lawful. The Public Service Act and its regulations, as well as various other legislation, govern the appointment and promotion of public servants. They all require that people not use their powers to improperly benefit another person. The code of conduct under the public service regulations specifically requires employees to report any information about nepotism to their superiors.

Moreover, government entities have (or should have) internal policies that require that a person recuse themselves from employment decisions concerning friends or family.

These policies are generally designed to avoid even the appearance of undue favouritism.

Noncompliance with these regulations and policies would constitute a disciplinary offence. For example, in 2013 the public protector released a report about nepotism in the Drakenstein municipality in the Western Cape. She found that it was unlawful for a man to be involved in evaluating his nephew prior to his interview without disclosing his interest.

She recommended that the uncle face a disciplinary process for breaching the municipality’s staffing policy.

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• This article was first published in Sunday Times: Business Times