By Chantelle Benjamin
The Gauteng Integrity Commissioner is unique in South Africa – no other province has one. The position is modelled largely on a Canadian system, but its history has not always been smooth sailing, with the occasional court case, questions raised by an accountability monitor and a precedent set in a ruling that has raised concerns.
In an unusual move, the integrity commissioner does not have to wait for a formal complaint regarding an MEC or member of the provincial legislature. The commissioner can initiate his or her own investigation. The other provinces depend on ethics committees and registrars to monitor MECs and MPLs.
The newly appointed Gauteng Integrity Commissioner, Ralph Mgijima, found himself in the hot seat almost as soon as he took up the reins. He had already earned respect as a commissioner for and later the chairman of the Public Service Commission.
First, he opened his own investigation into alleged conflict of interest by Gauteng Speaker Lindiwe Maseko, and was then asked by Local Government and Housing MEC Humphrey Mmemezi to investigate allegations that Mmemezi had abused his government-issued credit card. News just in has revealed that Mmemezi has quit his position as MEC.
Media reports on Tuesday 10 July said Mgijima’s decision regarding Mmemezi had been discussed by the province’s privileges and ethics committee, and that the legislature would debate the committee’s report on Friday 13 July. Mgijima’s decision on Maseko is also complete, but is yet to be handed to the legislature, where it will be publically debated. It must be presented to the privileges and ethics committee first.
While Mgijima is in the spotlight at the moment, the person whose name is synonymous with the position of integrity commissioner is advocate Jules Browde, who served as commissioner for two five-year terms. He was appointed in June 2001.
He also set up a register of member interests for Gauteng members of the legislature. The success of his tenure resulted in his being approached to serve a similar position for the City of Johannesburg, which is considered the country’s economic hub.
As commissioner, Browde believed in an open-door policy. He encouraged MECs to pop in with queries and individually met each MEC to explain the rules and to get an understanding of their individual backgrounds. As he said to Corruption Watch: “We are often looking at people with vastly different backgrounds. Some were highly educated and some were not, and that needed to be taken into consideration.”
His approachability, confirmed by other members of the provincial legislature, makes allegations against Mmemezi and Maseko all the more alarming, because it appears members of the legislature were not only well briefed, but had access to easily obtainable advice.
His decisions appear to have been almost always accepted by Gauteng’s privileges and ethics committee, although he was criticised for rulings that held that members needed to inform the integrity commissioner of a complaint against a member before taking the matter to the media. This, it was felt by one or two MPLs, affected transparency.
Great deal of credibility
Browde came to the position with a great deal of credibility. He had a distinguished career and was made a silk in 1969. He could count among his fellow law students Nelson Mandela.
That is not to say it was all smooth sailing. In 2006, Adrienne Carlisle, then with the Public Service Accountability Monitor based at Rhodes University, criticised a number of Browde’s rulings. In the case of then Gauteng finance MEC, Paul Mashatile, for example, Carlisle accused Browde of “too narrow a view of the executive ethics code”, which regulates ministerial conduct.
Browde had cleared Mashatile of alleged conflict of interest after the MEC declared a 15% interest in Gadlex Holding, which owned 97% of Business Connection, which had a contract with the Gauteng Shared Services Centre, of which Mashatile was in charge.
It turned out that Mashatile had been offered the share option before he became the MEC and had kept the option open until 2005, but had never exercised it. Carlisle said the finding did not take into consideration the fact that members should not, in fact, expose themselves “to any risk of conflict”.
Browde did find in the same year, however, that then Gauteng education MEC Angie Motshekga had failed to declare an interest in a company owned by her husband, who was a member of the Gauteng Legislature, Mathole Motshekga. She was required to apologise to the legislature.
In 2009, Democratic Alliance MPL Jack Bloom was suspended for five days for failing to apologise to the legislature after Browde found no truth to allegations that then chief Whip Brian Hlongwa bought a house in Bryanston, Johannesburg through kickbacks from a company.
On a lighter note, Health MEC Ntombe Mekqwe was let off the hook for wearing an “I am an ANC volunteer” T-shirt on a visit to Chris Hani Baragwanath Hospital, after Browde found that she had attended voter registration in Carltonville just before the hospital visit, and discovered her change of clothes had not been placed in the car as she was leaving for the hospital.
Browde, in an interview with Corruption Watch, said: “I found the best thing to do, was to submit each finding as a judgement; that way there was no confusion in the end.”
Advise on code of ethics
Firoz Cachalia, who was appointed Gauteng Speaker in 1999 and later served successfully as Gauteng Safety and Security MEC, had approached Browde to consider applying for the integrity commissioner position. The position required the commissioner “advise members on the requirements of the Gauteng Legislature Code of Conduct and Ethics” which had been adopted in 2000 by the legislature, and to take action against breeches.
The Gauteng Legislature had decided that such a position was required. It investigated a number of models, and decided on a system similar to that of Canada. Other countries that make use of integrity commissioners include England, Scotland and Australia.
The success of the position, and a close working relationship with the registrar of lists in North West Province, led that province to approach Browde to apply for a dual position there, and to help in educating and setting up its lists.
Despite Browde holding educational workshops in North West, the position was never formally approved. Registrar of lists Machelle van der Berg told Corruption Watch on July 5 that discussions regarding the creation and filling of the position were under way.
“There is a lot of interest on the part of the premier in the North West to create a similar position and work is almost completed to ensure that it happens,” she said.
Speaking to Corruption Watch, Browde said he believed the position was primarily educational, more than about policing or punishing people. He also believed it had a lot to do with the personality of the person holding the integrity commissioner position.
“People need to be able to feel they can pop into your office at any time and chat about their concerns about whether something they are linked to could be considered a conflict of interest,” he said.
A comprehensive register of interests was also key, Browde noted, and one he was busy drawing up for the City of Johannesburg, which had nearly three times the members of the Gauteng Legislature.
Members’ interests online
“The work being done by the Institute of Security Studies’ Corruption and Governance programme, with regard to placing the declarations of members’ interests online, is invaluable,” he said.
Collette Schulz-Herzenberg and Rosemary Vickerman, who have both done substantial research on financial disclosure requirements, warn that strong judgements are useless without accompanying penalties.
Schulz-Herzenberg oversees the list mentioned by Browde.
“Conflict of interest laws are only as effective as the penalty provisions specified within them and their enforcement,” they warn in their research. “Sanctions against non-disclosure must be applied in all cases and should be severe enough to encourage disclosure.”