When public governance fails: The human burden behind the law

Nqobani Mzizi

South Africa has no shortage of governance instruments. Public entities operate within a dense architecture of statutes, codes, regulations, oversight bodies, board charters, delegation frameworks and reporting obligations. The PFMA speaks to fiduciary responsibility and the protection of public resources. The MFMA governs municipal financial discipline. The Companies Act sets standards of conduct for directors. King V reinforces ethical and effective leadership, governance outcomes, informed judgment and accountability. 

Yet public institutions continue to stumble over the same basic disciplines: authority, records, process, escalation, competence, independence and consequence. 

This is the uncomfortable pattern emerging from several recent governance matters. The Public Investment Corporation has faced leadership instability, precautionary suspension, board resignations, regulatory scrutiny and renewed questions about reform. NSFAS remains under public examination after the dissolution of its board, with the reported absence of minutes from a key meeting raising concerns about institutional record-keeping. Parliament has raised concerns about governance challenges at the NYDA. The Public Protector has also been drawn into allegations concerning executive overreach in another matter within the higher education environment.

Each case has its own facts, legal context and decision-makers. Care must be taken to avoid collapsing them into one narrative or judging them before processes have run their course. Yet together they point to a broader public governance concern. The instruments exist. The deeper question is whether those entrusted with them understand the weight of the authority they hold. 

Governance failure is often described as a failure of systems. Sometimes it is. Weak policies, unclear mandates, outdated legislation and poor controls can create institutional vulnerability. Many failures, however, arise despite the existence of systems: inadequate records, weak evidentiary trails, poor escalation of whistleblowing matters, participation where recusal is required, suspensions that lack confidence-building process and oversight bodies learning too late what should have reached them earlier. 

At that point, the problem moves from architecture to conduct.

Laws, codes, charters and frameworks provide the architecture of governance, but they do not exercise judgement on their own. They depend on people who read the board pack, ask difficult questions, preserve institutional records, recognise conflicts, slow down rushed decisions, protect whistleblowers and insist that authority remains within lawful boundaries.

This is the human burden behind the law. 

Serving on the board of a public entity is sometimes treated as an appointment of status, visibility or sectoral recognition. In truth, it is a serious fiduciary office. Directors and accounting authorities are entrusted with resources, mandates and public confidence that belong to others. Their decisions affect students waiting for funding, workers relying on retirement savings, young people seeking opportunity, municipalities delivering services and citizens who expect public institutions to act with discipline. 

The duties are therefore neither ceremonial nor abstract. Due care, skill and diligence require more than attendance. They require preparation, curiosity, independence of mind and the courage to test what is placed before the board. Directors compromise the seriousness of office when they are indifferent to process. Boards weaken oversight when they tolerate poor records. Accounting authorities place public purpose at risk when they neglect the controls through which that purpose is protected. 

The Business Judgment Rule is often misunderstood in this context. It is an important protection for directors who act in good faith, for a proper purpose, on an informed basis and in the best interests of the organisation. It recognises that governance involves judgement under uncertainty. Directors should not be punished merely because a decision later proves imperfect.

That protection assumes that judgement was actually exercised. It offers no cover for passivity, ignorance, factional decision-making, rubber-stamping, unmanaged conflicts or decisions taken without adequate information. The rule is a shield for careful judgement, rather than a shelter for careless authority. 

This distinction matters in public institutions because the consequences of weak governance are rarely confined to a boardroom. When governance fails in a private company, shareholders may suffer loss. When it fails in a public entity, the damage spreads through public trust, service delivery, institutional legitimacy and the credibility of the state itself. 

Records are a good example. Minutes may appear administrative, yet they are the memory of institutional authority. They show who was present, what was considered, what was decided, who dissented, who recused themselves and what reasons supported the decision. Where minutes are absent, weak or disputed, the institution becomes vulnerable to competing versions of its own history. In moments of crisis, that weakness can become decisive.

The same applies to escalation. Sensitive matters involving whistleblowing, regulatory attention, procurement concerns, executive conduct or board instability cannot be allowed to drift through ordinary channels without proper oversight. Where senior leadership is implicated, the matter must reach an independent board structure quickly. A governance system that allows the subject of a concern to control the flow of information weakens confidence before the facts are tested. 

Competence is another neglected issue. Public boards require people who understand fiduciary duty, financial oversight, risk, legislation, stakeholder accountability and the difference between strategic direction and operational interference. Good intentions cannot substitute for skill. Political legitimacy cannot replace governance literacy. Sector experience helps, when joined to disciplined understanding of the legal and ethical responsibilities of office. 

This is where King V is important. Its value lies in reminding organisations that governance is a disciplined exercise of ethical and effective leadership toward sustainable outcomes. Applied properly, it asks whether governing bodies have the right composition, whether decisions are informed, whether accountability is visible and whether disclosure enables stakeholders to assess governance quality.

Yet even King V cannot govern on behalf of those appointed to govern. Its principles require human application. They require directors who know when to speak, when to pause, when to seek independent advice and when to insist that a matter returns to the proper forum. 

Personal consequence should also form part of the conversation. The Companies Act allows courts, in serious circumstances, to declare a director delinquent or place a director under probation. The late Dudu Myeni case remains a visible reminder that directorship can carry consequences beyond resignation or reputational embarrassment. Public office does not make governance accountability lighter. If anything, public purpose deepens the burden.

This does not mean every governance failure should become a delinquency case. It means that those who accept appointments must understand that the law expects more than presence. It expects care, skill, diligence, good faith and proper purpose. It expects directors to act in the interests of the institution, rather than the person who appointed them, the faction that supports them, or the convenience of the moment. 

The repeated turbulence in public institutions should therefore force a harder conversation about appointment processes, induction, ongoing development and board evaluation. Directors must understand the legislation governing the entities they serve, receive proper preparation on fiduciary duties before crises arise, and be equipped to manage conflicts, dissent, whistleblowing and regulatory correspondence. They must also be able to read financial information, interrogate risk and understand the mandate they are expected to protect.

A country cannot build capable public institutions on ceremonial governance. Nor can it rely on frameworks that are admired in theory and neglected in practice. The quality of governance ultimately depends on the people who exercise authority when the room is tense, the facts are incomplete and the pressure to take shortcuts is high. 

South Africa needs public institutions that are legally compliant, ethically led and humanly capable. Instruments matter because stewards must apply them. Laws matter because people must honour them. Oversight matters because courage is required before collapse. 

When public governance fails, the question should not stop at whether the rules existed. It must go further and ask whether those entrusted with the rules were competent, careful and courageous enough to honour them.

The true weight of public governance is carried by people. When they carry it lightly, institutions suffer. When they carry it with discipline, public trust has a chance to survive.

* Nqobani Mzizi is a Professional Accountant (SA), Cert.Dir (IoDSA) and an Academic.

** The views expressed do not necessarily reflect the views of IOL or Independent Media.

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