Picture source: Getty/iStock
Legal experts have debated the importance of the relationship between ethics and the law for many years within the South African legal framework (B Bekink ‘From mere Christmas decorations to concrete constitutional ethics (EFF v Speaker of the National Assembly; DA v Speaker of the National Assembly 2016 3 SA 580 (CC))’ (2020) De Jure Law Journal 104 at 110). Law and ethics are separate but inextricably linked (P Boddington ‘What do we need to understand about ethics?’ in P Boddington (eds), Towards a Code of Ethics for Artificial Intelligence (Artificial Intelligence: Foundations, Theory, and Algorithms (Oxford: Springer International Publishing 2017) at 25). Law and ethics are frequently combined or misunderstood despite having distinct challenges and knowledge domains. It should be highlighted that what is reasonably unlawful is also immoral or unethical, but the reverse does not always apply. In essence, what is unethical cannot necessarily be labelled unlawful (K Murungi ‘Law for the layman: what is law?’ (1989) 4(2) WAJIBU 23 at 23).
Organisational structures that serve various professions often determine the shared ethical principles required in those professions. The executive members of the recent Constitutional Court (CC) judgment in AmaBhungane Centre for Investigative Journalism NPC v President of the Republic of South Africa 2023 (2) SA 1 (CC) is analysed on its stance declaring the invalidation of the Executive Ethics Code (Executive Ethics Code Proc R41 GG21399/28-7-2000 (Executive Code). The primary purpose of professional ethics is to safeguard the general public and vulnerable individuals from dishonest performances.
The AmaBhungane case is significant because it challenges the validity of the Executive Members’ Ethics Act 82 of 1998, which guides executive government officials like the president of the country. ‘The importance of ethical behaviour and professionalism, and the key role they play in the fight against corruption, have been continuously debated on a national, provincial and continental level’ (E Mantzaris, P Pillay and DB Jarbandhan ‘Ethics and professionalism against corruption: an exploration of the South African municipal landscape during the Covid-19 pandemic’ (2022) 13(1) African Journal of Public Affairs 110 at 116).
Ethics is defined as the ‘normative science of the conduct of human beings living in societies – a science which judges this conduct to be right or wrong, to be good or bad’ (W Lillie An Introduction to Ethics (Allied Publishers 2003) at 2). Attention to organisational ethics sensitises professionals or workers to know how they should act.
There appears to be widespread acceptance and reliance on professional ethics. However, these ethical standards are not legislated. ‘Many ethicists consider emerging ethical beliefs to be legal principles, ie, what becomes an ethical guideline today is made into a law, regulation or rule’ (M Arunmozhi and Sumandiran CSP ‘Ethics applied in corporate social responsibility in retail industry in India’ (2020) 11 JES 662; W Van Der Burg and FWA Brom ‘Legislation on Ethical Issues: Towards an Interactive Paradigm’ (2000) 3(1) Ethical Theory and Moral Practice 57 at 58).
‘Law is a system of primary social rules that direct and appraise behaviour, together with secondary social rules [or ethical standards] that identify, change, and enforce the primary rules’ (L Green ‘The concept of law revisited’ (1996) 94(6) Michigan Law Review 1687 at 1687). An example of an ethical standard that relates to human decency is the African ethical concept is ubuntu, which advocates for human development and also erased the unconstitutional misfortunes of the apartheid era (DD Ndima ‘The resurrection of the indigenous values system in post-apartheid African law: South Africa’s constitutional and legislative framework revisited’ (2014) 29(2) Southern African Public Law 294 at 296). Comprehensive social standards should be proposed through accepted ethical values and law.
As a sovereign country, South Africa is guided by the Constitution as the supreme law. The Constitution is founded and rooted in values of human dignity, human rights, and the attainment of equality. The development of the South African constitutional framework also consists of ubuntu as a transformative ethic that exposes inequalities in the past era (Ndima (op cit) 296). ‘All ethical proposals include … respect for [fundamental] human rights, including dignity, equality and non-discrimination’ (MR Carrillo ‘Artificial intelligence: From ethics to law’ (2020) 44(6) Telecommunications Policy at 3). Section 195(1)(a) of the Constitution provides that public administration must be governed by a high standard of professional ethics that must be promoted and maintained. The preceding provision of the Constitution expressly recognises the importance of professional ethics when executing administrative duties. ‘Public administrators must believe that they are part of a profession with professional standards’ (SC Gilman ‘Ethics codes and codes of conduct as tools for promoting an ethical and professional public service: Comparative successes and lessons’ Washington DC (2005) at 20). Therefore, the government executive position should be seen as a profession. It is over-emphasised that ‘public administration must not only be held to account but must also be governed by high standards of ethics’ (Glenister v President of the RSA and Others; Helen Suzman Foundation as Amicus Curiae 2011 (7) BCLR 651 (CC) at para 176).
The recent ruling in the AmaBhungane case offers crucial principles for applying ethics and the law. The judgment is analysed for its stance on declaring an ethical code invalid and unconstitutional. Given the discussion in the previous section, the case is used to provide a solution on whether regulated ethics can assist in fostering professionals acting ethically. Professional standards and the integration of ethics into the legal system are two lessons that may be learned.
The central question that the CC had to determine was whether there ought to be a duty in law to disclose all donations. It should determine whether the Executive Code passes constitutional muster (AmaBhungane at para 1). The order of the High Court declared the Executive Code to be inconsistent with the Constitution and invalid to the extent that it does not require the disclosure of donations made to campaigns for positions within political parties (AmaBhungane at para 75).
Currently, no legislation requires systematic and proactive disclosure of private funding of political parties. ‘Consequently, political parties are under no express legal obligation to disclose the sources of their private funding, at elections or other times’ (My Vote Counts NPC v Speaker of the National Assembly and Others (CC) (unreported case no CCT121/14, 30-9-2015) (Cameron J) at para 8). The emergence of ethics to advocate for transparency is adequate for accountability and the curbing of corruption.
By parity of reasoning, the act of disclosure has two qualities. It requires disclosure from the receiving political campaign, as well as transparency of information of the donor company which made a political donation. Madlela articulates the reciprocal nature of a donation and contends that political donations should be transparent to the company representatives making such donations (V Madlela ‘Disclosure of corporate political donations and expenditure to shareholders: why South Africa should follow the United Kingdom’s legislative approach’ (2022) 139(1) South African Law Journal 114 at 116). Disclosure is an autonomous feature of ethics that should be observed with caution. Hence, transparency should be apparent whether or not there are suspicions of wrongdoing.
Ethical practice should not be applied partially or have a preferred condition in its application. When the element of ‘disclosure’ is used as a transparent, ethical feature to instigate combatting corruption (AmaBhungane at para 64), there should not be a prerequisite condition that takes effect. Therefore, the disclosure provides a rationale for why information is required, thus proactively ensuring that officials are not using their public office for private gain (Gilman (op cit) 72).
In the AmaBhungane case, the CC concurred that ‘any financial interest’, in terms of the Ethics Act, must be interpreted broadly to include all donations, not just those giving rise to a personal benefit (AmaBhungane at para 65), and such are subject to disclosure. Therefore, the Executive Code is within the confines of the Constitution. The disclosure of donations benefited in a material nature is within the realms of ethical conduct and the law. The amicus curiae correctly submitted that the Constitution’s absence of an obligation to disclose all political donations, in essence, a failure to provide for such a requirement in subordinate legislation such as the Executive Code, does not violate the Constitution (AmaBhungane at para 22).
It is ‘acceptable to conclude that principles such as ethics, values and morals are linked with the concepts of law and legal systems’ (Bekink (op cit) at 109). Ethical values can be used as a public service lens to redesign, focusing on the key values government wants to promote and the behaviours it wants to prohibit. Ethics should be utilised to supplement the law and legal principles.
Delani Milton Mahhumane LLB LLM (Corporate Law) (UNISA) is Senior Lecturer in the Mercantile Law Department at the University of South Africa.
This article was first published in De Rebus in 2024 (December) DR 27.
