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21 June 2022 | Story Prof Pearl Sithole | Photo Sonia Small
Prof Pearl Sithole
Prof Pearl Sithole is Vice-Principal: Academic and Research at the Qwaqwa Campus, University of the Free State

Opinion article by Prof Pearl Sithole, Vice-Principal: Academic and Research, Qwaqwa Campus, University of the Free State.
Public service is the heart of the strategic and operational compass of any country. Whereas politics is in the space of driving the national vision, socio-economic positioning of a country and consolidating the symbolic essence of a nation; public service is the heartbeat of monitoring strategy against present coalface realities.  Political leadership can successfully focus on visioning if its relationship with public administration is healthy. This means there must be professionals who can, on the one hand, advise on strategic scenarios to achieve a political vision, and on the other, fine-tune professionalism for the everyday service experience of the citizen as they tap into government products to assist living and livelihoods. A healthy relationship is one that has sufficient thresholds of expertise, operational agility, ethics and visioning for both political office-bearers and public servants. It is that mutual respect for vision and professional lines that influence each other that makes or breaks the functionality of public administration in any country. It has to be a tango of political and professional strategising that happens best when the country has a fair degree of patriotism amongst its important stakeholders, including business.

Sadly, in recent times there is very little good news regarding the performance of the public service in South Africa. Of course, some within a largely failing system are trying very hard to do their best. Yet public service and public administration in South Africa is deteriorating from a culture, structure and agency perspective. The issues are as follows:

• Inability to balance routine maintenance, new projects and growth for real places: ‘Service’ and ‘delivery’ are not seen as two missions that can benefit from quality execution. Since their conflation into ‘service delivery’ the phrase is more of a political statement exemplifying point scoring. Basically, whether it is at municipal level or provincial level, routine maintenance of roads, robots, servicing drainage systems is a difficult task for the South African public service. Tasks that were once done directly by government departments for reasons to do with regular service routine are now thrown into the outsourcing culture.

• Medium- to long-term planning is good on paper rather than afforded champions and structures to see these through: In South Africa we do not need to be reminded about the aging infrastructure in most municipalities – it is a reality seen in the quality of tap water in some municipalities. There should have been professionals doing projections for growing capacity demands on energy and water. Clearly this was not to be – despite the existence of technical units within local and provincial government, and huge national departments and Commissions existing to support these specialisations. South Africa is seen aspiring and punting 4IR aligned ways of doing things, including acquiring health equipment that cannot be sustained locally. Even innovation and advancement is not planned from the point of view of sustainability and carefully funding national capability.

• Professionalism is not receiving continuous attention within institutions and in monitoring and evaluation approaches: South Africa is wrestling with a huge human resource bill with many sitting in positions where they lament capacity. Studies are yet to be done to ascertain the lag between capacity and capability – given the changing world of work and the need for dynamic systems to respond to issues. Many academic institutions share amazing potential solutions to everyday problems – solutions for which public administration is not ready because of its unchanging formats. In fact, academic institutions, which are sometimes blamed for not preparing students for the (changing) world of work, have reason to suspect that public administration wants to tame the critical innovative thinkers they produce into imbibing the archaic formatted processes that are not changing with the times.

• Data-driven, evidence-based approaches have purged all qualitative, context-driven service: Communities are suffering from an impersonality of service and systems that refuse to offer human service. Tele-systems with voice prompts and generic emails are supposedly ‘servicing’ people with nuanced problems, and there is no way to follow-up on issues. Things may be reported to human professionals in certain locations but they ultimately find themselves as data in impersonal systems. Recent talk of special relief social grant applicants accessing the internet to supply or change their details, as well as connect with banks – is an amazing case of middle-class consciousness imposed on poor people, most of whom are in rural areas and informal settlements. Clearly South Africa has blunted its capability to respond to real people in real time through its devaluing of qualitative experience. ‘Service’ has removed ‘the person’ on either end of the need-and-service spectrum. This exacerbates alienation and bitterness towards public service establishments.
 
• Cycles of planning away poverty are an end in themselves: No country speaks of planning and reporting more than South Africa. The only problem is that the physical impact does not match the planning and reporting. Instead it does seem that the plans have certain descriptors that have lost ‘feeling’ and ‘lost entitlement for change’. One of them is reference to ‘the poor’. No descriptor legitimises planning, conferencing and reporting, than the concept of ‘the poor’; but the static nature of numbers and criteria forcing people to remain poor in order to access help is an inbuilt conundrum of South African planning. 

A question has to be asked as to whether a typical South African public service manager would be scared for their job if they woke up to ‘no poor people’. The point is: If public service mainly exists to ‘solve poverty’ then developing countries actually do not want to be developed. I am making this point because it seems there is no aspiration for ‘quality of service’, ‘solving poverty’, ‘creating a service blend suitable for circumstance’, or ‘growing development precincts in real spaces’ in South Africa. public servants are working on reducing people to data and generating overlays of faceless needs.  

This speaks to the ethos, ethics and culture of public service locally and the public administration system internationally. Let me be blunt about this point: there has never been freedom from colonial formats of public administration because it is in the interest of certain global bodies to find docile public service in African countries. Their ‘poor’ is the less dynamic systems in developing countries. This is what I call the qualitative colonial dividend.

In conclusion 

Of course, no one wants to over-emphasise bad news but a deterioration of public service is one of the notable trends of post-independence in many African countries. Why is it that a professional layer of government is not able to salvage its country, and we all blame the politicians? The reasons are both structural and related to devaluing professionalism. An over-arching culture of formats importation that structure the relationship between the globe and former colonies speaks to structural colonial dividends to be gained from dysfunctional public administration regimes. The colonial dividends strategy seems to be: ‘Beyond making countries beg for foreign investment, tame their tools and call that “a request for a permitting environment” – then excessively format the way they work’.   

Let me end by specifying the real sore points that must to be sorted if we are to resuscitate the South African public service:
We need to sort human resource systems and practices: Currently HR recruitment systems are not versatile and they discourage agility in their recruitment criteria. There are no mechanisms to assess the capable “butterflies” that have been bravely hopping between related sectors. The people who hold the answer to the responsive leadership and discretion are often punished for not being stagnant.

A need to resolve the capacity vs capability debacle: Responsive capability is curtailed by valorising already existing ways of doing things in spite of a technology mix that may be afforded, a possibility of designing new cross-sector policies that allow different specialists to work together, of retraining needed to respond to new situations.

Speaking truth to powers of vigilance – that should be supporting core business: No matter how versatile public service can be in response to developmentalism, if the disciplines that see their role as vigilance over resources are only operating from the stance of distrust, there shall be no responsiveness. These disciplines are Planning, Monitoring and Evaluation, as well as Finance and Auditing. In South Africa they are famous for stating ‘why things cannot be done’ rather than ‘how they can be done’. If this will change, they will need to see sector partners as equal partners with essential expertise for advancing the development mission. These ‘disciplines of vigilance’ may even create accountable discretionary points closer to the coalface instead of only recognising a priori planning-based expenditure even for unforeseen situations.

Finally, someone needs to whisper to all future presidents, especially for their State of the Nation Addresses (SONA), that: “it is OK to prioritise and pinpoint focal areas when it comes to designing an annual strategic direction”. SONAs actually endorse silos. In South Africa even cameras will point to a specific minister as the President jumps from one sector to the next. Being issue-based and resolving major developmental conundrums that have a spiralling effect on other issues is the way to go. SONAs are short, but they can garner determination towards a well-considered mission.

News Archive

The failure of the law
2004-06-04

 

Written by Lacea Loader

- Call for the protection of consumers’ and tax payers rights against corporate companies

An expert in commercial law has called for reforms to the Companies Act to protect the rights of consumers and investors.

“Consumers and tax payers are lulled into thinking the law protects them when it definitely does not,” said Prof Dines Gihwala this week during his inaugural lecture at the University of the Free State’s (UFS).

Prof Gihwala, vice-chairperson of the UFS Council, was inaugurated as extraordinary professor in commercial law at the UFS’s Faculty of Law.

He said that consumers, tax payers and shareholders think they can look to the law for an effective curb on the enormous power for ill that big business wields.

“Once the public is involved, the activities of big business must be controlled and regulated. It is the responsibility of the law to oversee and supervise such control and regulation,” said Prof Gihwala.

He said that, when undesirable consequences occur despite laws enacted specifically to prevent such results, it must be fair to suggest that the law has failed.

“The actual perpetrators of the undesirable behaviour seldom pay for it in any sense, not even when criminal conduct is involved. If directors of companies are criminally charged and convicted, the penalty is invariably a fine imposed on the company. So, ironically, it is the money of tax payers that is spent on investigating criminal conduct, formulating charges and ultimately prosecuting the culprits involved in corporate malpractice,” said Prof Gihwala.

According to Prof Gihwala the law continuously fails to hold companies meaningfully accountable to good and honest business values.

“Insider trading is a crime and, although legislation was introduced in 1998 to curb it, not a single successful criminal prosecution has taken place. While the law appears to be offering the public protection against unacceptable business behaviour, it does no such thing – the law cannot act as a deterrent if it is inadequate or not being enforced,” he said.

The government believed it was important to facilitate access to the country’s economic resources by those who had been denied it in the past. The Broad Based Economic Empowerment Act of 2003 (BBEE), is legislation to do just that. “We should be asking ourselves whether it is really possible for an individual, handicapped by the inequities of the past, to compete in the real business world even though the BBEE Act is now part of the law?,” said Prof Gihwala.

Prof Gihwala said that judges prefer to follow precedent instead of taking bold initiative. “Following precedent is safe at a personal level. To do so will elicit no outcry of disapproval and one’s professional reputation is protected. The law needs to evolve and it is the responsibility of the judiciary to see that it happens in an orderly fashion. Courts often take the easy way out, and when the opportunity to be bold and creative presents itself, it is ignored,” he said.

“Perhaps we are expecting too much from the courts. If changes are to be made to the level of protection to the investing public by the law, Parliament must play its proper role. It is desirable for Parliament to be proactive. Those tasked with the responsibility of rewriting our Companies Act should be bold and imaginative. They should remove once and for all those parts of our common law which frustrate the ideals of our Constitution, and in particular those which conflict with the principles of the BBEE Act,” said Prof Gihwala.

According to Prof Gihwala, the following reforms are necessary:

• establishing a unit that is part of the office of the Registrar of Companies to bolster a whole inspectorate in regard to companies’ affairs;
• companies who are liable to pay a fine or fines, should have the right to take action to recover that fine from those responsible for the conduct;
• and serious transgression of the law should allow for imprisonment only – there should be no room for the payment of fines.
 

Prof Gihwala ended the lecture by saying: “If the opportunity to re-work the Companies Act is not grabbed with both hands, we will witness yet another failure in the law. Even more people will come to believe that the law is stupid and that it has made fools of them. And that would be the worst possible news in our developing democracy, where we are struggling to ensure that the Rule of Law prevails and that every one of us has respect for the law”.

 

 

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