This morning, I reposted an upload of an ENCA interview with a private investigator, Chad Thomas, on LinkedIn. It relates to his (Thomas’s) views about the controversy surrounding a fellow private investigator, Paul O’Sullivan, and the latter’s reluctance to testify at the Parliamentary Ad Hoc Committee on issues involving SAPS, as well as the Madlanga Commission.
Thomas opines that O’Sullivan has become a scapegoat when it comes to the narrative of the capture of SAPS and IPID. Therefore, he believes O’Sullivan must testify at both the Ad Hoc Committee and the Commission. I agree with this viewpoint in the belief that people who hold themselves out as protectors of right over wrong should not pay lip service to their espousals only.
Thomas’s view about the implications of the Codes of Conduct that bind O’Sullivan by virtue of the latter’s registration as a member of PSIRA (Private Security Industry Regulatory Body) and with the ACFE (Association of Certified Fraud Investigators) makes his post interesting since it affects O’Sullivan’s professional standing.
The ACFE has a MoU with PSIRA, and the members of both organisations must abide by the PSIRA Code of Conduct. Section 15 (a) thereof states: “A security service provider performing the functions of a private investigator – may not perform any act which interferes with, hinders or obstructs a Security Service or an organ of State in performing any function that it may lawfully perform, or advise or agree with a client to perform such an act”.
Objectively, if O’Sullivan through his declarations about private investigations that he had done, had infringed this rule, the PSIRA Code of Conduct applies. Thomas argues that O’Sullivan had, and that he has brought both institutions into disrepute.
At this time, this is an unfolding drama, which highlights the consequence of holding yourself out as belonging to a professional body or association. Regardless of your good standing from a compliance angle, expectations arising from Codes of Ethics or Conduct may render the professional unfit and improper if behaviour deviates from applicable standard.
As an example, in the recent outcome of The Limpopo Provincial South African Legal Council v Nkomo Eric Moeng and another (10977/2024 High Court, Limpopo Division) the court agreed that the Legal Practice Council is the custodian of legal practitioner ethics. The LPC enhances and maintains the integrity of the legal profession. Since its proceedings are disciplinary in nature and of its own kind these are not subject to all the strict rules of ordinary civil proceedings.
The court pinpoints the steps to determine whether a person is fit and proper as an attorney as a three-stage enquiry. Firstly, it is to prove the offending conduct on a balance of probabilities. Secondly, it is to determine whether the person is fit and proper considering the proven misconduct, and, thirdly, it is to determine whether the person should be suspended or struck of the role. These last two enquires are a value judgement. In this case the court struck the first respondent off the roll for uttering both a forged court order and forged letter of good standing.
It is just that the devil is in the detail.