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Legal setback for eThekwini Municipality’s lifestyle audits as employees have the right to privacy

The eThekwini Municipality’s proposed anti-corruption plan of subjecting employees to lifestyle audits has been dealt a blow after the national Department of Public Service Administration (DPSA) told them the move had no legal standing.

EThekwini Municipality mayor Mxolisi Kaunda. Picture: Gcina Ndwalane

Published Jun 23, 2021

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DURBAN - THE eThekwini Municipality’s proposed anti-corruption plan of subjecting employees to lifestyle audits has been dealt a blow after the national Department of Public Service Administration (DPSA) told them the move had no legal standing.

According to the City Integrity and Investigations Unit (CIIU), employees would only participate in such audits on a voluntary basis or when they were a target of an investigation.

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The move is a setback for Durban mayor Mxolisi Kaunda, who proposed in 2019 that employees should be subjected to lifestyle audits. Kaunda championed lifestyle audits as part of the pledge to clean governance. They were meant to determine whether employees were living within their means.

In a story published on the city’s website, Kaunda said in the unwavering bid to build a capable and honest municipality, the city would conduct lifestyle audits of public officials and prevent public servants from engaging in business with government. He also committed to ensuring the tender process became more transparent, efficient and credible.

While delivering his audit committee report for the quarter ending December 2020, the chairperson of the Audit Committee, Nala Mhlongo said yesterday there was no legal way to impose lifestyle audits and they could only happen on a voluntary basis.

“The feedback to the Audit Committee by the City Integrity and Investigations (CIIU) is that the unit had engaged extensively with the Department of Public Service Administration (DPSA), however, there was no legal basis to conduct lifestyle audits, unless there were standing allegations on an individual.

“Following consultations with the DPSA, it was indicated that notwithstanding the framework, the DPSA had not implemented the Lifestyle Audits Framework due to challenges experienced with the framework.

“Furthermore, the Head: CIIU indicated that according to DPSA, the framework was not implementable. The main challenge with the lifestyle audits was the law to be utilised as a basis.

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“And therefore it would be difficult to perform lifestyle audits without a legally binding law as individuals had constitutional rights to privacy. In the absence of binding law, the Lifestyle Audit Framework would not be enforceable in the court of law unless individuals volunteered for lifestyle audits.

“It was recommended the item on Lifestyle Audits be discussed at the Executive Management level, for purposes of proposing voluntary lifestyle audits as a condition of employment for senior management,” he said.

Mhlongo said the best option would be for the senior leadership to volunteer for the lifestyle audits, “if they do, I see no reason why employees lower down would refuse the audits”.

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Opposition party councillors said the city officials should take the opportunity, adding this would give the public confidence that employees were running the city honestly.

DA councillor Nicole Graham said she believed there should be a mandatory requirement for lifestyle audits.

“Even if there is not one, I am happy to subject myself to a lifestyle audit because I know I am not getting money from anywhere other than my legitimate sources of income, and I know I am not doing anything suspicious. I think that all public representatives who feel the same way would have no problems showing the public their sources of income,” she said.

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She said as DA members of exco they were happy to submit themselves to lifestyle audits. “From our side, we are happy to volunteer and those who are not happy to volunteer I think they have something to answer for,” she said.

IFP councillor Mdu Nkosi said city officials should subject themselves to lifestyle audits to show they were trustworthy and living within their means.

“If they do not come forward, they would be telling us something indirectly. For the officials to take the lead, it would help to rebuild confidence among ratepayers and investors.

“The officials should volunteer. If they do not, acting city manager Sipho Cele should engage them to do this for the good of the municipality.”

Mayoral spokesperson Mluleki Mntungwa said there would be a management response to the issue that has been raised by the audit committee.

Michael Maeso, a labour lawyer from Shepstone & Wylie said the municipality could argue for the lifestyle audits to take place if they stated there had been a proven record of wrongdoing in the municipality and that in order to bring this to a head, they were implementing lifestyle audits for all employees.

He added the municipality could also demand that because of proven problems, employees at a senior level must be subjected to annual audits.

He said the municipality could also set it as a condition of employment that new employees be subjected to the audit.

THE MERCURY

Related Topics:

City of Ethekwini

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