’When in doubt, seek advice’ - Ministers warned against issuing illegal instructions
Johannesburg - Members of President Cyril Ramaphosa’s Cabinet and senior public servants have been warned against issuing illegal instructions to their subordinates following revelations at the commission of inquiry probing state capture.
The Public Service Commission (PSC) has told ministers not to hide behind the fact that they do not know the law or act unlawfully on the advice of officials.
In a new PSC circular, PSC chairperson Advocate Richard Sizani states that executive authorities (ministers) and heads of department must perform their duties within the confines of the legislative framework and report irregularities as well as unlawful instructions to the relevant authorities.
“The evidence emerging from the judicial commission of inquiry into allegations of state capture, has shown how some senior leaders and businesses were able to act with impunity. Even more distressing is how senior officials who have been in cahoots with businesses, have looted the state in the procurement of personal protective equipment (PPE) during Covid-19,” Sizani said in the circular.
The PSC believes the looting of funds meant for PPE, sometimes happens at the instruction of executives.
Sizani said politicians often hide behind the notion that they did not know the law and acted on the advice of officials.
But retired Deputy Chief Justice Dikgang Moseneke’s arbitration proceedings in the Life Esidimeni tragedy, found that former Gauteng health MEC Qedani Mahlangu’s claims that she was incorrectly advised by her officials and their evidence that they acted on her instructions, were rejected and were accordingly held accountable for their actions, according to Sizani.
“Where there is doubt about the lawfulness of an instruction or proposed action, legal advice should be sought from internal legal services or external sources such as the Office of the State Attorney or the Office of the Chief State Law Adviser,” reads the circular dated September 29.
According to the commission, executive authorities will not be able to claim ignorance of the law and public servants will not be able to claim that they were confronted with unlawful instructions from senior managers or political heads. The PSC believes that the implementation of the circular will go a long way to stem the tide of irregular conduct in public service.
The state capture inquiry, headed by Deputy Chief Justice Raymond Zondo, has heard that in 2015 former president Jacob Zuma instructed the Eskom board to suspend certain executives including ex-acting chief executive, Tshediso Matona.
The inquiry was told by former Eskom chairperson Zola Tsotsi that his then SAA counterpart Dudu Myeni, relayed Zuma’s instruction.
Another former top public servant, Themba Maseko, the Government Communications and Information Systems’ ex-chief executive, was fired by late former minister in the Presidency Collins Chabane after being instructed to do so by Zuma for refusing to co-operate with the controversial Gupta family, which wanted access to the state’s R600 million advertising budget.