The report published in Parliament on October 17 on the public protector's investigation into whether Deputy President Jacob Zuma had declared his financial interests in terms of the executive ethics code raised more questions than it answered.

The critical issues the public protector failed to address include:

Did the deputy president obtain payments from individuals and companies involved in SA's 1999 arms procurement deal, including Schabir Shaik and Nkobi Holdings?

If so, were these payments declared in the register of interests for cabinet members to which only the president, the secretary of the cabinet and the public protector have access?

Is Zuma fit to remain in public office?

These issues are separate from the question of whether the deputy president is guilty of the criminal offence of corruption.

If Zuma did not declare alleged payments obtained from Shaik-Nkobi Holdings, then the matter becomes quite simple: if he did not receive such payments he cannot be guilty of breaching the cabinet's ethics code.

But if he did receive payments from Shaik-Nkobi Holdings which a cursory inspection of his bank accounts should show he is guilty of a de facto conflict of interest and of misleading the president and the cabinet.

And if he declared these alleged payments from Shaik-Nkobi Holdings in the cabinet register, why was he not asked to recuse himself from all cabinet meetings at which the arms deal, or its investigation, was discussed as required by the executive ethics code?

The code requires both that the cabinet members disclose their financial interests and recuse themselves from involvement in any discussion or decision involving their private interests.

Yet we know for a fact that Zuma was involved in discussions around the exclusion of the special investigating unit (under former judge Willem Heath) from the joint investigating team into the arms deal. We know that he sharply criticised parliamentary standing committee on public accounts chairman Gavin Woods for his insistence on allegations of corruption involving foreign arms suppliers being subjected to investigation.

Unfortunately, neither the president nor the public protector has acted decisively to resolve these questions, despite the Directorate of Public Prosecutions' apparent belief since October 2001 that there was evidence that Zuma obtained such payments from Shaik.

Both the president and the public protector have access to the contents of the cabinet register. They need to explain why it is that they have chosen not to act on the matter of Zuma's private interests over the past two years.

Both have conveniently chosen to take refuge in the specious argument that these matters are sub judice because the allegations involved are also the subject of a criminal investigation by the Directorate of Public Prosecutions.

Ironically, while the president has refrained from involving himself in the Zuma matter on the grounds that he cannot be seen to be pre-empting the findings of SA's courts, the Directorate of Public Prosecutions announced in August that the deputy president would not be charged or brought before court to face corruption charges.

In his report, the public protector says that the decision "whether or not the payments (by Shaik) constituted a conflict of interest, gift or financial interest that had to be declared in terms of the code would only be possible once these payments and the reasons therefore have been admitted or proved".

Interestingly, rather than establish whether Shaik made the alleged payments, and whether Zuma declared them in compliance with the ethics code, the public protector sees his mandate as establishing the reasons why the alleged payments were made.

This is the proper focus of a criminal investigation where the prosecution would presumably seek to prove bribery. In introducing this aspect, the public protector confuses his role and that of the Directorate of Public Prosecutions.

The critical question that needs to be raised is whether civil proceedings can be instituted in respect of alleged impropriety while criminal proceedings are pending against an individual for the same act of alleged impropriety. Clearly they can.

Civil and criminal proceedings involve separate sets of charges, are decided against separate standards and result in two separate outcomes even when they concern the same alleged act of impropriety.

In criminal proceedings the objective is to establish whether a person intentionally set out to commit a crime the standard of proof is "beyond a reasonable doubt".

In civil disciplinary proceedings the objective is to establish whether someone breached an accepted employment code and the standard of proof is "on a balance of probabilities".

While the outcome of a criminal trial is a decision as to whether a person should be punished for committing a criminal offence, the outcome of a civil disciplinary hearing is a decision about whether a person should continue to be employed in their current position.

It is worth pointing out that the disciplinary code governing ordinary civil servants states: "If an employee commits misconduct that is also a criminal offence the criminal procedure and the disciplinary procedure will continue as separate and different proceedings."

So the onus is on the public protector and the president to explain why members of the cabinet should be expected to measure up to a lesser set of standards of ethical and disciplinary conduct than ordinary government officials.

Their resort to the sub judice rule, and the consequent need to refrain from hindering or obstructing the performance of the country's prosecuting authority, cannot be sustained.

If anything, the joint inaction of the public protector and the president with respect to Zuma's alleged conflicts of interest has resulted in the emergence of a series of counterallegations against the Directorate of Public Prosecutions that have served to undermine its integrity and its effective functioning.

Allan is director of the Public Service Accountability Monitor, Rhodes University. A full copy of Allan's analysis is available on www.psam.org.za.

With acknowledgements to Colm Allan and the Business Day.