THE CONCEPT OF GOVERNANCE
2.9 TRANSPARENCY IN GOVERNANCE
2.9.1 Statutory guidelines regulating transparency in governance
Ensuring the integrity, fairness, effectiveness and accountability of administrative decision-making through the democratic process and representative political institutions is the fundamental basis for good ethical governance and in many cases an effective instrument to deal with corruption.
Every major country has a constitution - the basic set of laws by which the people are governed. But the force and meaning of the constitution may vary widely among the various countries (The World Book Encyclopedia, 1992: 271).
2.9.1.1 The Constitution
The South African Constitution has many references to accountability and openness. A constitution is a fundamental law that prescribes the framework of government and the nature and extent of governmental authority (Fox & Meyer, 1996: 26). A constitution can be seen as the frame of reference of a government.
It consists of laws, customs and understandings that govern the actions of government.
The Constitution provides the basis for transparency in government.
It provides, inter alia, for basic principles of governance and intergovernmental relations, for access to information, fOf just administrative action, and for the conduct of various political bodies on national, provincial and local levels.
The foundation of any system of government is its constitution of fundamental law. Almost all government types have some sort of constitution, although the constitution in a democracy assumes special importance. Constitutions in most democracies also have priority over any other law (Van Niekerk in Van Niekerk et al, 2002:
59).
Chapter 10 of the Constitution contains specific provisions pertaining to public administration. In this regard, a number of fundamental ethical or normative guidelines, which should be considered and
upheld by all public officials in the provisioning of services to society, are found in section 195 of the constitution.
2.9.1.2 Public Service Act, 1994
The Public Service Act, Act 103 of 1994, according to Van Der Waldt (in Van Der Waldt et al 2002: 48), is one of the most significant statutes regulating the employment of public employees. This Act was established "to provide for the organisation and administration of the public service of the Republic, the regulation of the condit;.ons of employment, terms of office, discipline, retirement and discharge of members of the public service and matters connected therewith".
In terms of the Public Service Act, an officer shall be guilty of misconduct and may be dealt with in accordance with section 21 of the Act, if he or she 'publicly comments to the prejudice of the administration of any department', and 'without first having obtained the permission of his or her head of department, discloses, other than in carrying out his or her official duties, information gained by or conveyed to him or her through his or her employment in the public service, or uses that information for any purpose other than for carrying out his or her official duties, whether or not he or she discloses that information' (Du Toit et al, 1998: 152).
2.9.1.3 White Paper on Reconstruction and Development
In terms of section 2.5.9 of the White Paper on Reconstruction and Development (RDP) (Notice no. 1954 of 1994), the aim of the communication strategy will be to 'effectively communicate the objectives of and progress with implementing the RDP to allow the public to be fUlly informed and to participate'. The communication strategy will also 'seek to inform the nation through the effective use
of the mass media and through co-operation with existing organisations'.
2.9.1.4 Labour Relations Act, 1995
The Labour Relations Act, Act 66 of 1995, makes provision for openness in the relationship between the employer (the state) and the employees (public officials) to ensure fair labour practices.
The Labour Relations Act was the first attempt to level the human resource playing field between the public and private sector.
According to Section 1, the purpose of the Act is to advance econC':nic development, social justice, labour, peace and the democratisation of the workplace. The act regulates the relations between trade unions and employers and forms part of a broader process of labour law reform (Van der Waldt in Van der Waldt et ai, 2002: 48).
In terms of section 16(3) of the Act, 'whenever an employer is consulting or bargaining with a representative trade union, the employer must disclose to the representative trade union all relevant information that will allow the representative trade union to engage in consultation or collective bargaining'.
2.9.1.5 White Paper on Transforming Public Service Delivery
The White Paper on Transforming Public Service Delivery (section 6 of chapter 3) lays down a set of moral guidelines in terms of which public servants must do their work to provide services to the satisfaction of their customers.
A White Paper on transforming public service delivery was drafted by the Department of Public Service and Administration to address the
many challenges facing the public service in its efforts to become a truly representative, competent and democratic instrument.
To fulfil this role effectively, the public service is being transformed to implement government policies according to the policy framework contained in the White Paper on the Transformation of the Public Service (No. 16838 of 1995) (Du Toit et aI, 1998: 153). In terms of section 31 of the White Paper openness and transparency are the hallmarks of democratic governments and are fundamental to the public service transformation process.