Professionalism of any kind involves, inter alia, the twin concepts of competence and integrity. These two concepts and their requirements are examined below in relation to both the public service and the private sector in South Africa.
The public have been shocked and horrified by evidence presented before the Zondo Commission of Inquiry into State Capture, indicating that senior public servants appear to have acted in conflict with the Constitution and with a total lack of professional integrity. This is a cause for profound concern and introspection in South Africa. Section 195 of the Constitution sets out the basic values and principles governing the public administration. Firstly, the Constitution requires such administration to be governed by democratic values and other important principles such as inter alia: (a) A high standard of professional ethics; (b) Efficient, economic and effective use of resources; (c) Services must be provided impartially, fairly, equitably and without bias; (d) Public administration must be accountable; (e) Transparency must be fostered by providing the public with timely, accessible and accurate information; (f) Good human resource management; and (g) Public administration must be broadly representative of the South African people, with employment and personnel management based on ability, objectivity, fairness, and the need to redress the imbalances of the past.
It is very important to comprehend that the values and principles set out above, are constitutional imperatives because they are an integral part of our Constitution which is the supreme law of the land. They must be observed by all public servants from the highest to the lowest levels. It is also of fundamental importance that we as a nation also make a concerted effort to uphold and return to the values set out in section 1 of the Constitution such as human dignity, equality, non-racialism, non-sexism, accountability, responsiveness and openness.
Not only must those in the public administration behave with integrity and competence. This is also required of those in the private sector as well. Corporations in the form of juristic persons can also constitute a threat to human rights and the economic interests of ordinary people and therefore they must act in accordance with the values in the Constitution. The directors and employees of corporations are obliged to act with integrity in relation to their shareholders and the public in general.
The debacle relating, inter alia, to Steinhof and the scandal involving VBS Mutual Bank, both of which have been given considerable media coverage, indicate in no uncertain terms that a serious ethical relapse has occurred. Unfortunately this kind of ethical aberration has happened in the past. Companies in the form of juristic persons control the well-being of millions of people and create employment. They also however have the potential to make an important contribution to social and economic justice in South Africa. To do this they and their office bearers must act with integrity and competence. In the previous Companies Act, before the adoption of the extant one Act 71 of 2008, human rights and the values in the Constitution were virtually ignored.
This has changed fundamentally with the new Companies Act of 2008. Section 7 (a) of the Companies Act of 2008 gives express recognition to the constitutional imperative of bringing company law within the framework of the Constitution. In this regard, sections 7 and 8(2) of the Constitution dealing with the application of the provisions of the Bill of Rights does not only apply to the state, but also to individuals and juristic persons as well. This is clear from these two provisions of the Constitution, read together. Section 8(2) states that the Bill of Rights applies to ‘a natural or a juristic person if ‘taking into account the nature of the right’.
Section 7(a) of the Companies Act, referred to above, is a very bold step and it means that the Bill of Rights and constitutional values should become an important matter of policy for corporations who operates in the private sector. This indicates that in the process of interpreting the Companies Act and related legislation section 7 of the Companies Act that one the seminal purposes of the Act is to ‘promote compliance with the Bill of Rights as provided in the Constitution, in the application of company law’.
In this regard the directors of a company perform a crucial role in the operation of their company and must promote the ‘best interests’ of their shareholders. As a result of the explanation above, it is submitted that the relevant provisions of this law must be interpreted and indeed developed not just to promote shareholders in a narrow sense but to promote human rights of other affected persons as set out in the Constitution and as required by section 7 of the Companies Act.
During the decade of the Zuma presidency something went radically wrong giving rise to corruption, state capture and great incompetency in the manner in which the public service operated. Civil servants must conduct themselves in a manner that is for the benefit of the people of South Africa and not to serve their own selfish or dishonest interests. This is indeed one of the crucial challenges that the Ramaphosa administration must address with the urgency it requires.
Companies have both rights and responsibilities. A new era is required of ‘just business’ rather than ‘profits at all costs’. This is a unique challenge to the business world and all those involved. There are many enlightened and very competent persons in the world of business in South Africa, who can take a leading role and infuse the values of the Constitution into operation of their corporate ventures thereby rising to the occasion demanded by the political and economic circumstances that prevail at present time. This is indeed essential in a country that has infinite potential with its inordinate human and natural resources.
However it is imperative that the public in general and the media in particular continue to be vigilant in monitoring the conduct of those who operate both in the public and private sector. Parliament also has an important constitutional oversight role to play in relation to both the public and private sectors. This is beginning to take place more thoroughly and vigorously. This is also manifestly required in relation to the State Owned Enterprises (SOEs), which are a hybrid of the public and private sectors and in which it appears most unfortunately that there has been manifest incompetence, corruption and state capture.
In both the public and private sectors enlightened leadership is required to ensure that public servants and business fraternity respectively act with competence and integrity and consequently that we as a nation and people return unequivocally to the values and principles set out in our Constitution.
George Devenish is Emeritus Professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.