Most organisations have a code of conduct. Fewer have one that can be enforced. The difference is rarely visible on the day the code is adopted. It appears months later, when someone breaches it and the organisation discovers that the document it relied on was never built to carry a sanction.
A code of conduct is not a values statement with a signature block. It is an instrument that will, sooner or later, be tested in a disciplinary hearing, a council meeting, a CCMA arbitration or a review application. Five questions separate the code that binds from the code that decorates the wall.
One · Where does the authority to bind come from?
A code binds only those the organisation has the power to bind, and only to the extent of that power. For a company, the source is usually the Memorandum of Incorporation, a board resolution and the employment contract. For a statutory body, it is the empowering Act and whatever that Act permits the council or board to prescribe. For a voluntary association, it is the constitution and the member’s agreement to be bound by it. Before drafting a single rule, trace the line from the code back to the instrument that authorises it. A rule the empowering provision does not authorise is ultra vires, and a sanction imposed under it is open to challenge. The principle has been settled since Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council, and it applies to codes as much as it applies to by-laws.
Two · Does it contain rules, or aspirations?
“We act with integrity” is a value. “A member must not accept a gift above the threshold in the gifts register from any person with whom the organisation is transacting, without prior written disclosure to the secretary” is a rule. Only the second can be breached in a way that a hearing can find. Values belong in the preamble. Rules belong in numbered clauses, in plain and imperative language, each one describing conduct that a reasonable person could recognise as either done or not done. If a clause cannot be breached, it cannot be enforced, and it should not be in the operative part of the code.
Three · Is it linked to machinery that can act?
A code without a procedure is a wish. The code must say who receives a complaint, who investigates, who decides, what sanctions are available and who may impose them. Each of those answers must connect to something that already exists: a disciplinary procedure in the employment contract, a committee the board has constituted under its rules, a tribunal the Act has created. For a statutory body the sanctions must be those the legislation permits; a council cannot invent a fine or a suspension that its Act does not authorise. For a company the sanctions must be ones the contract or the Memorandum of Incorporation actually allows. Draft the code and the procedure together, and cross-refer them by clause number, so that no one has to guess which document governs the hearing.
Four · Is the process fair?
Where a code is enforced by a public body, or by a body exercising a public power (a professional council, a regulator, a statutory board), the disciplinary decision is administrative action. Section 33 of the Constitution and the Promotion of Administrative Justice Act require it to be lawful, reasonable and procedurally fair, and the courts have applied that standard to the disciplinary processes of professional bodies. In the employment context, the Code of Good Practice on dismissal under the Labour Relations Act asks whether the rule existed, whether the employee knew or could reasonably have been expected to know it, whether it has been consistently applied and whether the sanction was appropriate. A code that does not build in notice of the charge, a proper opportunity to be heard and a reasoned decision fails those tests before the merits are ever reached.
Five · Is it applied consistently?
Consistency is the test most codes fail quietly. The rule is enforced against a junior employee and overlooked for a senior one; a member is disciplined this year for conduct that was tolerated last year. Inconsistency is not only unfair; it is evidence. An arbitrator or a court will read the organisation’s own enforcement history as the best guide to what the rule really means. Keep a register of decisions, record the reasons, and review the code against that register every year.
What a code that can be enforced looks like
It is shorter than most. A preamble that cites its authority. Numbered rules in plain, imperative language. A procedure with named roles and time limits. A sanctions clause tied to the enabling instrument. A review clause. It does not try to describe the culture of the organisation; it tells the people bound by it what they may not do, what happens if they do it, and who decides. Everything else is a poster.
MBM Valkyrie Advisory drafts and reviews codes of conduct, disciplinary procedures and the rules beneath them for companies, boards, statutory bodies and non-profits.
Start a conversationOr put the code you already have on the table first, and ask the five questions above of it.
This piece is general commentary on drafting practice. It is not legal advice on any specific matter, and no professional relationship arises from reading it.