Public Protector Annual Report 2010/2011

Meeting report

Advocate Thuli Madonsela, Public Protector of South Africa apologised to the Committee for not being able to attend the meeting on 14 October 2011. The Public Protector (PP) had not planned to be at the wrong venue and the entity would be more vigilant and try not to allow something like this to happen again.

The Committee accepted the apology

Presentation: 2010/2011 Public Protector Annual Report Presentation

Adv Madonsela informed the Committee that the Office of the PP was a government oversight body that was meant for the public so that they did not have to go to court all the time and it was also meant to augment courts and democracy. The PP was a vehicle for enforcing administrative justice, good governance and accountability primarily in areas such as the Executive ethics as envisaged in the Executive Members Ethics Act; anti-corruption as envisaged in the Prevention and Combating of Corrupt Activities Act; the protection of whistle blowers as envisaged in the Protected Disclosures Act as well as access to information as envisaged in the Protection of Access to Information Act. During the year under review the PP started to implement ‘Vision 2020’. The PP was primarily an administrative justice institution. There were 20 offices of the PP throughout the country, the staff compliment was 263. The national office was a walk in central office that had 100 staff members. The PP had found that it was dealing with highly unsophisticated communities and it had thus established regional offices which were satellite offices more than anything else. The PP would like to request from Parliament more funding in order to expand its national footprint. The PP received 16 251 complaints, some of these were own initiative cases; 5 608 of these cases were carried over from last year; 14 148 cases were finalised; 1 709 complaints were out of jurisdiction; 340 complaints were referred to other institutions and 41 reports were published. 52% of the cases were finalised within a month; 22% within one to three months; 13% were finalised within four to six months and 7% were finalised within seven to twelve months.

The PP had 616 outreach clinics out of an annual target of 720; 155 mobile clinics out of an annual target of 216; 192 information sessions out of an annual target of 70; 102 radio slots and 48 newspaper articles out of a target of 40 were published. The PP also arranged 6 national events. There was a need to have good controls in order to address maladministration so as to ensure the proper use of funds and enhance service delivery.  There was a need amongst government to move away from pre-constitutional thinking to post-constitutional thinking. The PP would like to see rights being taken seriously as part of post-constitutional thinking. Some organs of state have not awoken to the fact that things have constitutionally changed The PP has made an impact in the area of supply chain management where there were systemic challenges. The reports released on supply chain management were Against the Rules I and II. The reports highlighted systemic challenges in supply chain management. The supply chain management system failed to incorporate competitive practices thereby discouraging entrepreneurship and service excellence. The biggest highlight in the reports was over pricing. The pricing in some instances was obscene e.g. provincial executive in the North-West had informed the PP that one contractor was building a Reconstruction and Development Programme (RDP) house for R10 million. Quality assurance was not good as people were doing shoddy work where government was concerned. The PP played a role in ensuring that government institutions had their own internal complaints mechanisms. One of the PP’s interventions was to write to the Minister of Defence to establish military ombudsman. The biggest problem experienced by the citizenry was the right to a decision. To not have a decision was one of the biggest injustices and it was very evident in the social housing sector where people have waited since 1996. The right to recourse when standards were not met was another problematic area.

33 areas of potential systemic investigations and interventions were identified with 9 investigations conducted and 2 concluded. The other investigation could not be concluded. The following issues of concern were identified in the 9 investigations: poor planning, policy distortions, poor monitoring, poor service delivery and poor accountability. There were capacity gaps in relation to skills and experience where systemic investigations were concerned. The PP handled 6 reports in terms of the Executive Members Act during the year under reviews. There was an increase in reports on the Executive Members Act; Protected Disclosures Act and Prevention and Combating of Corrupt Activities Act. The PP had observed that things seemed to work well in government where there was competent, consistent committed and consistent leadership in terms of ethics, corruption and just administrative action. Internally, the PP has tried to manage its case management system and the Auditor General (AG) was roped in to assist. The AG identified that the case management system was a data capture system as opposed to a normal case management system. The PP made new audit committee appointments and it has been working very well. There was a good governance and integrity committee that was chaired by the Deputy Public Protector (DPP). The PP had received a clean audit with less fewer maters of emphasise and the PP was working on eliminating these.

The challenges facing the PP were investigative capacity; to try and address this, the PP had appointed 17 senior investigators but this was still not enough. A service delivery unit that focused on service delivery has been established. The PP needed the support of Parliament for the finalisation of the PP rules; the DPP’s remuneration package; the Occupation Specific Dispensation (OSD) for staff members and support for the expanded footprint. The PP would continue to focus on being trusted and accessible; to provide prompt remedial action and to promote good governance in the conduct of all state affairs.

Mr Themba Mthethwa, Chief Executive Officer (CEO) of the PP said that the entry had received a clean audit. The key matter of emphasise from the AG was the R12 million deficit that was incurred; this has been a priority for the current financial year. A further challenge was on the investigative capacity. The PP had approached Treasury on this matter and Treasury had allocated R10 million. The problem with the allocation from Treasury was that it would have been logistically impossible to spend the amount in the period given, a further condition from Treasury was that this had to be a non-recurring expenditure something which could not be the case. An advertisement for a position has been appointed with the hope that Parliament would provide more funding as per the PP’s request. Additional funds of R13.1 million, R14.5 million and R15 million was needed for the next three financial years for  accommodation from the Department of Public Works (DPW) as well as to increase the budget of the PP.

Discussion
Ms S Smuts (DA) said that there was only constitutional thinking, what was post constitutional thinking? The PP was not a court of law however she felt that she must be elevated to a level equivalent to that of a court of law, in addition the PP wanted her decisions to be binding and that the institution should be one of administrative justice was this summary of the PP’s thinking correct? The PP had made this idea in public however she should be aware that she should not be a court of law. The current model of the PP was working as the President had acted in accordance with the PP’s reports.

Ms D Schäfer (DA) asked how the PP wanted Parliament to assist it. The enforcement of the PP’s findings were a concern especially in terms of the Jimmy Manyi report that had been referred to Parliament as to whether it should be accepted, what was the PP’s view on this? Why did the PP not make recommendations for criminal sanction in its reports? The PP had spoken to the Speaker’s Office regarding protection after the police visit last year, what had been the outcome of this? What interaction had there been between the Office on Institutions Supporting Democracy (OISD) in Parliament and the PP? What could the PP do with issues of maintenance, which were a huge problem? The statement that the PP had a deficit was a problem, what was the PP doing to manage the situation?

Professor G Ndabandaba (ANC) complimented the PP for its accomplishments and vision as well as the clean audit. The PP should educate the public that her Office was not a court of law.

Mr S Sibanyoni (ANC) also commended the PP.

Mr J Jeffery (ANC) said that it was concerning that the deficit had grown from R6 million to R12 million, it would be nice to see what the PP was doing in order to cut back on costs. There was only one Committee that performed oversight over the PP yet it did not invite the Committee to its functions, for example last week only the Chairperson was invited to the Public Protector Good Governance Week. There had to be more time dedicated to the issue on the PP’s powers. Did the PP consider its powers as legally binding? The PP’s reports and recommendations were not like a court of law where there was representation from both parties, examination of evidence presented by both parties and more fundamentally one could appeal, in this instance the PP’s decisions could only be taken on review. Did the PP felt that its decisions were binding and if so which other PP in the world had such powers?

Adv S Holomisa (ANC) asked why the PP had stated in its report that the Rules of the PP were not finalised due to Parliament’s unavailability.

Adv S Adams (COPE) asked how many reports were implemented and which organs of state made the implementations, had the PP achieved its targets for the employment of people with disabilities? What were the PP’s views regarding the response from Jimmy Manyi on the findings against him as well as the Department of Justice and Constitutional Development (DoJ&CD) on findings by the PP, on a case that was postponed 48 times, where the Department disagreed with the PP’s findings?

The Chairperson asked for details on litigation against the PP, what steps was the PP taking to address the issue of creditors not being paid within 30 days as well as the deficit? Was the Protected Disclosures Act adequate protection for whistleblowers?

Adv Madonsela said that the most expensive litigation that the Office had been party to was the Mail and Guardian case, this lawsuit was already under process by the time she took office. A decision was taken to proceed with the appeal that had been already filed by the previous PP as it dealt with the powers of the PP.

Ms Smuts asked if she was referring to the Oilgate case.

Adv Madonsela replied in the affirmative. The case did cost a lot but at the time there were questions that had to do with the powers of the PP. After the Supreme Court of Appeal judgment the PP was not going to appeal. The PP met with the Mail and Guardian and had opted for an internal review and not a re-investigation of the original case. There were gaps with whistleblower legislation where persons with good intent often end up not being protected. On the issue of pre-constitutional thinking and post-constitutional the point was that people could no longer think in the way they used to. There were certain things that we could and could not do before 1994 that we could do now and others that we could not do now. She had never used the word binding when referring to my decisions. What she said was that there was a duty to implement and the decision of the ombudsman was irrational. The test for ascertaining irrationality on the part of an ombudsman was an objective one- whether a reasonable ombudsman faced with the same facts and law would have reached a different decision. Last year there was a case study for all ombudsman in Bermuda where a Minister had refused to implement a decision from the ombudsman. The resounding view from the other ombudsman was that there was a duty to implement a decision. The ombudsmans’ were not saying that one must implement. The default position was that there should be implementation but a decision could be taken on review. The decision in the Bermudan court went against the Minister.

Ms Schäfer asked how was an irrational decision arrived at and would the particular government entity then be able to take it on review to a court?

Adv Madonsela replied in the affirmative and added that that was how the jurisprudence had developed. The court doing the review would look at the outcome and process.

Ms Smuts said either it was procedural review or it was an appeal on the merits, what was this process or outcome.

Adv Madonsela said that the review would take process into consideration. In employment equity cases taken on review for example there was consideration of the process and outcome. Another example was recently where the Minister of Justice had made an appointment in disregard to another candidate that had been selected by the Magistrates Commission, the matter was taken on review where the process and outcome were considered.

Mr Jeffery said that this was something that the Committee and PP had to engage further on, the research he had done on the Canadian model where it was said that “Where no appropriate action was taken within a reasonable time after a decision was made and no action was taken which seems to the ombudsman to be adequate or appropriate, the ombudsman in his or her discretion after considering the comment of any...government organisation affected may send a copy of the report and recommendations to the Premiere. And may thereafter make such report to the Assembly on the matter as he or she seems fit’. The same could be said for Australia where it was said ‘Where action that was in the opinion of the ombudsman adequate and appropriate in the circumstances is not taken with respect to the matters and recommendations included in a report to a department or a prescribed authority according to Section 15 within a reasonable time after the ombudsman furnished the report to a department or prescribed authority, the ombudsman may inform the Prime Minister in writing’. The issue was how a decision was taken...

Adv Madonsela said that a court of law would scrutinise the methodology used when a decision was made where a decision was taken on review...

Mr Jeffery said that the Committee was not talking about where a decision was taken on review. If an enforceable decision was taken there had to be an appeal mechanism. This was not where the PP was being irrational or unreasonable; this was not a basis for a decision being taken on appeal in a court. The argument of the Committee was that the PP’s decisions were not of the same status as findings were being made without a hearing. The PP may want the same powers in terms of her rules and this may be something to look at. The rights of the people affected also had to be taken into consideration. There was a difference between appeal and review where the latter was around procedure where rationality and unreasonableness were factors. It would also be useful to get a copy of the PP’s speech to the University of the North West where she stated that ‘Anybody who thought that only a court of law could order organs of state to correct administrative wrongs was flawed in the extreme.’ This extract may of course have been taken out of context but it would be useful to get a copy of the speech and decision of the court in Bermuda. The research from other countries was that decisions were recommendations which if not implemented were then sent to the Executive or Parliamentary authority.

Adv Madonsela agreed that the matter had to be given more thought and time because if one were to look at the Canadian model then you would realise that they did not have a federal ombudsman, there were different Canadian provinces. The only Canadian province that had similar ombudsman as South Africa was the one from Ontario. The ombudsman in Ontario had the power to recommend. The international jurisprudence that provided that there was a duty to implement unless the ombudsman were found to be irrational were from countries where the ombudsman was a statutory body.

In South Africa the PP was in a more powerful position as Section 182(1)(c) held that the PP had the power to ‘take appropriate remedial action’. The Rules of the PP were not going to give it additional powers or more powers than the statute that created the PP.

Mr Jeffery said that he was saying that when the Rules were being discussed this matter could be discussed as well; with respect to the PP the Members knew what the Rules were about and did not need an explanation.

Adv Madonsela said that she was referring to the Rules because Mr Jeffery had used that wording and this was on the recording. Mr Jeffery had said that the PP was planning on having additional powers through the rules. This had to be clarified; she was not planning on giving herself more powers through the Rules.

Mr Jeffery said that if this was being recorded then could it be looked at but he did not really recall saying that.

Adv Madonsela said that she wanted to clarify that she wasn’t using the Rules to gain more power. The starting point when considering the powers of the PP was Section 182(3)(c) of the Constitution. The Public Protector Act used words such as ‘must resolve disputes’; this meant that there had to be resolution. The PP also had a multi statutory mandate and this also had to be taken into consideration. Once the Constitution and statutes governing the PP had been considered, there had to be a purposive interpretation of the Constitution. It can’t be that the drafters of the Constitution had envisaged creating a gate to nowhere. The United Kingdom ombudsman’s decisions were usually implemented. There was a difference between the findings and remedial action. The findings were separate from the remedial action. Referral for criminal prosecution was a much more serious issue.

Mr Jeffery said that it was not the decision of the PP to prosecute or not. One would expect that where the PP found that there was evidence, it should be reported to the police or National Prosecuting Authority (NPA). Has the PP had any interaction with a law enforcement agency?

Adv Madonsela said that the PP had referred a few cases for prosecution. The PP preferred to not refer a matter to the police because there were similar investigations that could be done. The NPA preferred the PP to refer matters to the police as by then the matter would be prosecutable.

Ms Schäfer said that her reading of Against the Rules I and II (Public Protector Reports into the Leasing of Police Headquarters in Pretoria and Durban) was that there was criminal activity; was the PP now saying that there wasn’t?

Adv Madonsela said that she would accept Ms Schäfer’s views on the two reports. Maintenance was a major area of concern that had to be looked into by the PP. The reason behind the deficit began when the PP started to experience rental problems another problem was the budget for litigation which was quite big. The PP did have austerity measures to cut back on costs- for example overseas trips for the PP had been reduced, the vehicle for the PP was downgraded from E-class to C-class. The PP would embark on educating people that the PP was not a court of law.

Mr Jeffery pointed out that the Committee only got the high profile reports and not the ordinary ones, which were only seen by the Committee in the annual report why?

Adv Madonsela said that every report that involved national government was tabled. And in every report it was listed as to which institution it was sent to.

Mr Jeffery referred to a case on page 24 and said that that report was not sent to Parliament but to provincial Home Affairs, which to his knowledge did not exist as Home Affairs was a national competency, there was no provincial department of Home Affairs.

Adv Madonsela said that the case was sent to Parliament.

The Chairperson referred to page 24 and said that in the report there was reference to the failure of the Northern Cape Department of Home Affairs, which left the impression that in the office of the PP there was this confusion that there was a provincial department of Home Affairs. Probably the PP had meant to say that there was a Northern Cape office of the Department of Home Affairs. 

Adv Madonsela said that if for example there was a finding against a provincial office of a national department the PP did not make a finding against the Minister but that particular provincial office of the national department.

Mr Jeffery said that he suspected that Parliament did not get the reports that dealt with provincial government only national.

The Chairperson added that he went to Parliament’s clerk of papers that handled every single report or document that was tabled. The clerk said that the PP did not bring a batch of a report they only sent one copy to the Speaker’s Office. The PP should be aware that Members of Parliament preferred to have their own individual copies of documents. However the legislature erred because the Public Protector Act did not specify that every single report should be tabled in Parliament. This left leeway for the PP to table reports as they saw fit.

Mr Jeffery said that the Committee would ideally want the report that dealt with the DoJ&CD. E-copies could be sent to the Committee via the PP.

The Chairperson said that the matter would be dealt with when the Rules were being considered.

Adv Madonsela said that the PP considered Parliament as the supreme body and it would provide the copies of the relevant reports.

Mr Jeffery re-iterated that the PP had to taper its programmes as the budget was tight just like the South African Human Rights Commission (SAHRC) did. The PP also had to try and open offices or move offices to more strategic locations so that there was access. The tapering of programmes would also cut the deficit.

Adv Madonsela said that the PP was trying to respond to the needs of the people.

Mr Jeffery said that he understood the people and took exception to the comment as it implied that he was not aware of what people wanted having been a public office bearer for some time now. The point was that the PP had to taper its programmes in order to cut its deficit.

Adv Madonsela said that it was the people that wanted more offices however it was true that a balance had to be struck between what the people wanted and the available funds. Where the government was able to claw back some of the money it had spent and had not received true value for it, the PP should be considered when that money was re-disturbed because of the value it added and benefit to the people. PP clients always preferred to have a physical presence.

Mr Jeffery said that people wanted free tertiary education and housing tomorrow but this was not possible.

Adv Madonsela replied that it would be possible if government was able to claw back money that was irregular and wasteful expenditure. The PP had found that money went to people’s pockets rather than competing government claims. On the issue of the PP’s relationship with the Committee, the PP had sent invitations to the Chairperson with the understanding that Members would come to the event if the head was invited. The PP was not aware that each Member had to receive an individual invitation.

The Chairperson said that the PP should just send an invitation to the Committee as opposed to each individual Member.

Mr Jeffery said that the invitation to the Chairperson was very specific it requested him to do certain things. The invitation was clearly not for Members. And the PP was saying what was said last time and the invitation must be sent to the Committee Secretary.

Adv Madonsela said that the PP would now send invitations in the manner agreed to now. On the issue of the unavailability of Parliament to discuss the Rules and salary package of the DPP; she was not available to meet the Committee on the day that it had indicated it was ready to meet on these two issues. The DPP and CEO were sent instead and were not allowed to come before the Committee for some or other reason.

The Chairperson said that the reason why the DPP could not appear was that there was a policy position in government now from the Political Office bearers Commission that dealt with salaries and benefits; this was that no person shall motivate for their own salaries and benefits. Therefore the DPP’s presence would have not been appropriate hence the Committee said that she could not come.

Adv Madonsela said that the PP had assumed that in terms of the laws of natural justice and the Promotion of Administrative Justice Act (PAJA) one should be there to present their case when their fate was being decided.

The Chairperson said that the DPP was not being sent to prison so there was no need for PAJA or the laws of natural justice.

Adv Holomisa said that the correct wording in the report should be that because of the inability of Parliament and the PP to find a mutually acceptable date the meeting could not take place to discuss the pertinent issues.

Adv Madonsela said that of the 41 cases only one was converted into a provisional report. Of the other 40 reports 35 had been either partially or fully implemented. In 6 other reports there was engagement with the organs of state who had refused to implement. In the DoJ&CD case the PP had not received a letter of dispute, their supposed refusal to implement was only in the papers. Page 65 and 66 of the report had the employment statistics, the statistics on disability and gender were not good and the PP was trying to address this. The PP had a firm relationship with the OISD and engaged regularly with the Speaker and Deputy Speaker. On the Jimmy Manyi case the Department of Labour had itself said that it found potential conflicts and a regime was put in place to address this.

The Acting CFO said that the R6 and R12 million deficit accumulations was due to building leases. DPW used to pay for some of the leases but they stopped in 2009/2010. The PP now had to take over those leases and this was an additional expense.

The Chairperson thanked the PP and reiterated the good compliments that the Committee had made on the good work of the PP. There were still outstanding issues especially on the powers of the PP and Rules.

Meeting Adjourned.