Our Country, our economy, our livelihood is dependent upon it. Nations rise and fall on the truth and effectiveness of its implementation. A truly democratic state cannot function without this fundamental concept. But what does it mean to be accountable?

The word is thrown around to give substance and legitimacy to soap-boxing politicians. It provides them with a façade of being truly public servants, elected representatives of the people, holding positions of power for the public good. Accountability, in democratic terms, means being able to vote out the inept, challenge the unlawful and maybe just maybe hold someone responsible for their actions.

The Constitution is replete with provisions prescribing accountability and you will be hard pressed to find enacted legislation that does not make a passing reference to this nebulous term. As with all instances of enacted law, to go from being a paper tiger to something with teeth comes down to whether it is being given effect to? This first question in this line of enquiry is theoretical:  whether the established procedures provide for effective accountability? The second is practical: are these procedures being implemented on the ground?

Not only do we elect politicians to make decisions on how to govern our country, but we also provide the money necessary to implement such decisions. If you want to weed out corruption and hold officials accountable, a good place to start is with the money. A theoretically powerful piece of legislation enabling us to “follow the money” is the Public Finance Management Act 1 of 1999 (PFMA). The core objective of the PFMA is to provide meaningful accountability.  This is achieved by allocating certain responsibilities to  ‘accounting officers’ who oversee the accounting of governmental departments and constitutional institutions and to ‘accounting authorities’ who oversee the accounts of a closed list of public entities as detailed in Schedule 2 and Schedule 3 of the PFMA.

Accounting officers are given an extensive list of duties under Chapter 5 of the PFMA. One that stands out is that these officials are responsible for the effective, efficient, economical and transparent use of resources of the particular entity they oversee as per section 38 (1)(b). Furthermore, these officials have a duty to report any “unauthorised, irregular or fruitless and wasteful expenditure” to the relevant treasury as per S 38(1)(g) and must take disciplinary steps against the official responsible.

If the accounting officer fails to comply with her duties under Chapter 5, she commits an act of financial misconduct as per section 81. A charge of financial misconduct must be investigated, heard and disposed of in accordance with the applicable statutory regulations or employment conditions.

Furthermore and more onerously, if that accounting officer wilfully or in a grossly negligent way fails to comply with inter alia, section 38, they have committed a criminal offence and are liable to five years imprisonment. What of the liability of the swindling government official operating under the accounting officer? Again, that official will be subject to internal disciplinary procedures but is not guilty of an offence under the PFMA. Thus, the weighty part of accountability for public finances falls on the shoulders of the accounting officer.

Accordingly, the Act goes quite a way to giving accountability sharp teeth. However, true accountability should permeate through all tiers and not merely be yoked to the top of the pyramid. Institutional liability is insufficient in truly giving effect to the notion of accountability. The institution pays for the actions of the individuals. The individuals do not suffer the consequences and go onto repeat the same actions. If only there was a way to hold all public officials personally liable for their actions.  Good news for democracy, there is. The Treasury Regulations of 2005 provide for just that. More importantly, the procedure is prescriptive. In terms of 12.2.1 an institution must accept liability for loss caused by officials who are themselves covered. However, in certain instances, the official will lose this cover and the loss occasioned must be recovered from that official as per regulation 12.2.3. Personal liability attaches in three noteworthy instances: intentionally exceeding powers, acting beyond the course and scope of employment or acting recklessly/intentionally. The 2005 Regulations are anticipated to be repealed on 1 April 2013 when the Draft Regulations published in November 2012 come into force.

Fortunately, this particular regulation remains intact.
This covers the theoretical enquiry and establishes that the PFMA has the potential to be one toothy tiger. As for the implementation, it is a game of wait and see. However, to the best of our knowledge, no instances of an accounting officer being prosecuted under the PFMA have been reported. 

Written and prepared by Patrick Wainwright, BKM Attorneys

Please do not hesitate to contact us on +27 11 788-0083 should you have any further enquiries or email enquiries@bkm.co.za