Once corruption or unethical conduct has been detected, it is critical that it be properly investigated. It should be pointed out that investigations is an expert area, and should not be attempted without the relevant knowledge and experience.
Departments have a few options open to them:
- Conduct their own internal investigations, utilising their own specialised and qualified staff;
- Conduct an independent investigation, utilising external service providers, such as forensic investigators, law firms, or accounting firms;
- Referring the matter to the provincial government for investigation; or
- Requesting the Special Investigations Unit to conduct the investigation.
The ethics committee should ensure that an Investigation Policy or Procedure is in place for the organisation.
This guide does not aim to give an overview of the investigations process, as it is deemed outside of the work of the ethics office. That said, ethics officers should use their judgement to determine when a matter needs to be handed over for investigation. For example, if you have questions about someone’s financial disclosure, this can perhaps be easily addressed by simply talking to them. If you instead go and give simple matters to investigators it can delay the process by months. So the rule of thumb is to wrap up matters as simply as you can – but don’t investigate beyond your field of knowledge.
Extract from the Municipal Integrity Management Framework, 2016
6. Investigations
Principles:
- Municipalities must ensure that all legitimate corruption allegations are investigated. They may develop internal capacity, make use of external expertise, or draw on provincial or national expertise.
- There must be transparency about how investigations are dealt with.
- All matters must receive the appropriate level of independent investigation. A multi-agency approach should be promoted.
Implementation:
6.1. Investigations policy / response plan
- Municipalities must develop an investigations policy setting out how detected matters will be dealt with, including:
- Procedures for investigations
- Processes for ensuring independence when senior managers, municipal managers, or councillors are implicated.
- For example, it is not possible for an internal municipal forensic investigator to conduct an independent investigation into allegations against senior politicians or senior managers in their municipality. Independent external investigation is required and a multi-agency approach should be followed.
- Roles and responsibilities including oversight by council committees.
- The investigations policy should align with the MFMA: Municipal Regulations on Financial Misconduct Procedures and Criminal Proceedings (2014)
Roles of other parties:
The Anti-corruption Task Team must develop guidelines and sample policies for municipalities to ensure that investigations are fair, independent and procedurally correct.
Remember – it is not the job of officials to investigate councillors, unless they are requested to assist by the Speaker. The Speaker is the one responsible for councillor conduct.
Successful resolution of matters is the critical last step in the process. It doesn’t make sense to invest in preventative work and investigations, if one does not also invest in good resolution capacity.
This is again outside of the scope of the ethics officer, but should be on the eyeline of the ethics committee.
The Municipal Integrity Management Framework refers to the following as ways of resolving cases of unethical conduct:
- Disciplinary action
- Recovery of losses
- Individual accountability
- Criminal prosecutions
- Cancellation of contract
- Prevention of recurrence
- Communication of successes
Collectively, these can also be referred to as consequence management.
Consequence management
The ethics office is not the one responsible for consequence management, however, it is in your interest to ensure that consequences based on the investigations are followed through.
In this case, it is important to have a good relationship with the Human Resources (HR) department (and specifically the labour relations officers) and continue the relationship with the investigators. Investigators are usually responsible for reporting a crime to the police and labour relations are responsible for internal disciplinary processes.
The ethics office should follow up to see if there has been consequence management. The difficulty with internal HR processes is that the reporter will not always be privy to consequences the accused may have received, unless it is a dismissal. For example, the reporter may have believed that the consequence should be immediate dismissal, but the disciplinary process found, in line with policy and context, that that employee should get a final written warning. The reporter may therefore think that no action has been taken, and may lose faith in the process. It becomes important when you update your system for feedback to the reporter that it gives some indication that something was done. For example, the feedback may be: “Investigation has been concluded, and action has been taken”, or if there was no wrongdoing, it also has to state that “Investigation was conducted and the allegations were unfounded”. Again, this adds to the credibility of the ethics office and the management of the hotline.
There are some instances where the investigation may recommend action and line management or labour relations, or the responsible party, does not institute the consequences of the reports. This poses a challenge to the ethics office, because when there are no consequences, employees get the impression that they can get away with things.
Sometimes it also happens that you receive a report against an employee and because no action was taken, you then receive repeated reports on the same allegation. In these cases, the ethics officer should intervene to highlight the damage/implications to the ethical culture if consequences are not instituted, as this creates a negative perception and highlights the waste of resources when multiple investigations have taken place on a repeated offence by the same employee.
It should again be pointed out that disciplinary action is not the work of the ethics officer. It is the work of management in collaboration with the labour relations officers. They do their work in line with the Labour Relations Act.
When someone faces disciplinary action, the following questions will be asked:
- Was there a rule in place against the action (i.e., was it clear that this action is wrong)?
- Was this rule communicated and therefore known by the employee?
- Has the rule been consistently enforced?
The role of the ethics officer is therefore crucial in ensuring that the Code of Conduct addresses all possible negative behaviours, and that employees are trained on the code.
The ethics officer may also be called to provide evidence in some matters. It is important to align with the labour relations officer for guidance on what information will be needed for successful resolution.
Also be sure to hand over matters to investigators and labour relations officers when the matter moves into their field of expertise.
Remember – as the ethics officer you should always try to remain objective. The purpose of consequence management is to determine the facts, not to find someone guilty.
The ethics office should track the completion of all cases that have been detected and keep accurate data on them – especially about how they have been resolved.
The following extract from the Municipal Integrity Management Framework gives some further guidance on the resolution of matters.
Extract from the Municipal Integrity Management Framework, 2016
7. Resolution
Principles:
- Municipalities should ensure the timely, fair and complete resolution of corruption matters. Perpetrators must be held accountable, losses must be recovered and recurrences prevented.
7.1. Disciplinary action
- The municipality must have competent labour relations capacity to ensure swift, fair and procedural disciplinary action.
Roles of other parties:
The South African Local Government Bargaining Council should review the Disciplinary Procedure and Code to ensure it support anti-corruption efforts.
- The municipality should make use of trained and experienced presiding and prosecuting officers for corruption cases.
- The municipality may make use of external capacity where they don’t have the internal capability or in sensitive or high profile cases.
Relevant legislation:
The Public Administration Management Act establishes the Public Administration Ethics, Integrity and Disciplinary Technical Assistance Unit which will, among other things, “provide technical assistance and support to institutions in all spheres of government regarding the management of ethics, integrity and disciplinary matters relating to misconduct in the public administration.”
The Unit may perform its functions in respect of: “a municipality with the concurrence of the Municipal Council or upon the request of the relevant Municipal Council, or upon the request of the relevant Member of the Executive Council in respect of an investigation contemplated in section 106(5) of the Municipal Systems Act”
7.2. Recovery of losses
Municipalities must recover all unauthorised, irregular or fruitless and wasteful expenditure.
- The municipality must recover losses from the responsible individuals in line with section 32 of the MFMA.
- Council may not write off losses without valid reasons.
Roles of other parties:
The Auditor General should review all losses written off.
- All losses and consequent steps must promptly be reported to the Auditor General and MEC in line with section 32(4) of the MFMA.
- Criminal Procedures Act
Where criminal matters go to court the municipality should request prosecutors to ask for restitution in terms of section 300 of the Criminal Procedures Act (51 of 1977). The municipality may in this way recover losses without having to institute civil proceedings.
The municipality should also explore recovery from the employee’s pension fund in terms of section 37D(b)(ii) of the Pension Funds Act (24 of 1956). This can form part of the restitution order described above. - Civil recovery
The municipality should institute civil recovery proceedings to recover losses due to unlawful acts. - Asset forfeiture
Where the Asset Forfeiture Unit is involved the municipality must request them to pay recovered proceeds back to the municipality. (This can be done at the discretion of the Asset Forfeiture Unit – alternatively it will be paid into the Criminal Assets Recovery Account.)
7.3. Individual accountability
Section 173 of the Municipal Finance Management Act provides for the following people to be held criminally liable in their individual capacity among other things:
- Accounting officer – for deliberately or due to gross negligence not implementing certain provisions of the MFMA;
- Finance managers with delegated responsibilities – for deliberately or due to gross negligence not implementing requirements of their delegations;
- Councillors – for interfering with the implementation of the MFMA.
- The municipality should bring criminal charges against individuals who wilfully corrupt the municipality.
7.4. Criminal prosecutions
- Cases that have been reported to the SAPS must be followed up to track the outcome of criminal prosecutions.
- The municipality should collaborate with law enforcement agencies to bring about successful prosecutions.
7.5. Cancellation of contracts
- The municipality should consider cancelling contracts that were fraudulently or corruptly obtained where it is in the municipality’s interest. (In line with s.38 of the Municipal Supply Chain Management Regulations.)
7.6. Prevention of recurrence
- The municipality should take appropriate steps to prevent recurrences of specific types of corruption. The implementation of these steps must be monitored by the Internal Audit Unit.
- The municipality should report blacklisted suppliers to National Treasury for inclusion in the List of Restricted Suppliers.
- The municipality should report dismissed employees to the Minister for inclusion in a national database.
7.7. Communication of successes
- Municipalities should communicate its successes in combatting corruption. This should deter perpetrators and build confidence in the governance of the municipality.
Independent assessment refers to the role generally performed by internal auditors where they review (or independently assess) the adequacy and effectiveness of the ethics programme.
Internal auditors have a role to play in improving governance in organisations, and this extends to the ethics programme of the organisation – as is shown in the following extract from the Institute for Internal Auditors’ International Professional Practices Framework:
| IIA – International Professional Practices Framework – Extract
Duties of the internal audit function –
(Institute of Internal Auditors, 2016: 12) |
Again – this is not the role of the ethics office to fulfil this function. Ethics officers can, however, direct internal auditors to the following resource:
Useful Resource
See The Ethics Institute’s Ethics Reporting and Auditing Handbook (2022).
This gives guidance to internal auditors on how to assess the organisation’s ethics performance.
Strategic Work
Strategic work is done once in 3 years. This work integrates ethics into the organisation’s long-term vision, governance systems, decision making, and stakeholder engagement.
Institutionalisation
Everyday Work
The institutionalisation of ethics is the core role of the ethics officer or the everyday work. The focus of institutionalisation is on how to make ethics real in the organisation so that it becomes part of the organisational culture.
INSTITUTIONALISATION
Making Ethics RealIn The Organisation.
The work of the ethics officer is to manage the ethics programme of the organisation.
