REPORT ON THE OFFICE OF THE PUBLIC PROTECTOR: 1998/1999
Submitted to the Justice Portfolio Committee on 16 March 1999
1. Introduction
It is my privilege to provide you with an overview of the operations and successes of my office during the period March 1998 to March 1999. Although the recent amendments to the Public Protector Act, 1994, provide for a permanent Parliamentary Committee to be established to attend to matters pertaining to my office, I have been informed by the Speaker of the National Assembly that the appointment of this Committee will only be finalized after the elections. In the interim, the National Assembly will, by resolution, appoint the Portfolio Committee on Justice (the Committee) to perform the functions contemplated in the Act.
I have communicated my concern to the Speaker that this arrangement might perpetuate the misconception that the Public Protector reports to the Minister of Justice which, obviously, blurs the independence of this office. I intend following up this matter when the new Parliament is in place. However, I appreciate the interest that the Committee takes in my office. I am also thankful for the support and assistance that my office has received from the Ministry and the Department of Justice as well as from the Committee, particularly with regard to the amendments to the Public Protector Act during 1998.
2. Powers, functions and constitutional obligations of the Public Protector.
Section 182 of the Constitution, 1996, provides that the Public Protector has the power to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice. The provisions of the Public Protector Act, 1994, (as recently amended) has given more definition to the jurisdiction of the Public Protector. It provides that the Public Protector can investigate:
maladministration in connection with the affairs of government at any level;
abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function ;
improper or unlawful enrichment, or receipt of any improper advantage, or promise of such enrichment or advantage, by a person as a result of an act or omission in the public administration or in connection with the affairs of government at any level or of a person performing a public function; or
any act or omission by a person in the employ of government at any level or a person performing a public function which results in unlawful or improper prejudice to any other person.
The jurisdiction of the Public Protector has also been confirmed by the Public Protector Act to include any institution in which the State is the majority or controlling shareholder and any public entity.
Once the Public Protector has investigated the conduct concerned, he/she has to report on that conduct and has to take appropriate remedial action. According to the Public Protector Act, remedial action includes mediation, conciliation or negotiation as well as advice on other appropriate remedies.
The Public Protector has to report to the National Assembly on the activities of the office at least once a year and any report by the Public Protector must also be tabled in the National Council of Provinces.
The Public Protector is obliged by the provisions of the Constitution to be accessible to all persons and communities. This, obviously, puts an obligation on my office to decentralize into, at least, the other provinces. The establishment of Regional Offices is dealt with separately in this document.
3. Independence
Section 181(2) of the Constitution, 1996, provides, inter alia, that the Public Protector is an independent institution that is subject only to the Constitution and the law. It is of paramount importance to the credibility and success of this office in the performance of its constitutional brief to strengthen constitutional democracy, that its independence should not be tampered with or perceived to be compromised. Of late, I have become increasingly concerned about measures that have been introduced that have a direct and negative influence on the independence of this institution. These actions have also caused increased misperceptions about the relationship between this office and the Department of Justice.
3.1 Background
Ever since I took office, my office has been supported by the Department of Justice as far as financial administration is concerned. This has been an arrangement of assistance as my office does not have the resources and capacity to deal with financial administration. However, the money allocated to my office was spent in terms of my directions and the Department had no authority to make any decisions as far as my budget was concerned. Although the support provided by the Department of Justice should be regarded as assistance as contemplated by the provisions of section 181(3) of the Constitution, it appears as if it has, unfortunately, created the impression that my office forms part of the Department or is answerable to Justice. Although I have, on several occasions, attempted in several ways to rectify this perception, it is clear that this misconception is on the increase at all levels of government (even at ministerial level) and society.
3.2 The allocation of funds.
As indicated, in the past funds have been allocated to my office more or less in accordance with the budgetary submissions and requests that we have made. Although the budget of my office has been dealt with as a vote on the Justice budget, this was merely an administrative arrangement. It was specifically understood between Justice and this office that the budget I request, will be given through as allocated by State Expenditure. State Expenditure earmarked the funds allocated to me on the Justice Vote, and the Department of Justice had no say as far as the amount allocated to my office is concerned. However, in the case of the 1998/99 financial year, funds were not earmarked. The effect is that I have to negotiate with the Department of Justice for the amount to be allocated to my office and the Director-General of Justice has the authority to determine the amount of money that will be allocated to the Public Protector. This effectively means that my office now has to be prioritized by the Department of Justice together with the other objectives of the Department. I fail to understand how this arrangement can be regarded to be in accordance with the provisions of the Constitution that specifically provides for the independence of the Public Protector. In theory the present arrangement can result in the activities of the Public Protector being severely limited and compromised should the Director-General decide that the Department's priorities justify more money being spent elsewhere. In practise this is bound to happen since one could expect the Department to first look after its own interests before coming to the interests of an institution which does not form part of the core business of the Department, but has its own particular functions. It allows the Executive to have very direct control over the office of the Public Protector which can have a devastating effect on the independence and credibility of my office. This must, however, not be misunderstood to mean that my office does not recognise the role of the Minister of Finance in this regard It should also be mentioned that I got the distinct impression from the former Director-General and the present Deputy Director-General: Corporate Services of the Department of Justice that they are not comfortable with the above development and I should add that they have been most sympathetic and helpful to my office.
3.3 The appointment of a Deputy Public Protector
The Public Protector Act provided for the appointment of a Deputy Public Protector by the President following a procedure similar to that of the appointment of the Public Protector. A Deputy Public Protector also had to qualify to be appointed as Public Protector. A Deputy Public Protector can, under certain circumstances, perform the functions of the Public Protector. In my view, it is essential that the appointment of a Deputy Public Protector should be a transparent process that would ensure that the independence of the office not be or perceived to be compromised.
I must confess to have been extremely disappointed to learn that the Committee has recommended to Parliament that these provisions of the Public Protector Act be amended to enable the Minister of Justice to appoint a Deputy Public Protector. This step, in my view, has jeopardized the independence of the Public Protector in a very significant manner. Not only can the appointment of a Deputy Public Protector in fact be or perceived to be a politically motivated appointment, but the mere fact that a Deputy Public Protector, who can have the same powers and functions as the Public Protector (which is an independent institution), is appointed by a member of the Executive can, at least in theory, mean that the government of the day can have a significant influence on the operations of my office. Internationally speaking, it is one of the pillars of most ombudsman institutions that it is completely independent and not subject to any influence by government. The fact that the appointment is to take place "after" (and not "in") consultation with the Public Protector, constitutes no safeguard against the mentioned perceptions and fears.
I am of the view that Parliament should reconsider this provision at the earliest possible opportunity. Should Parliament not be amenable to have a Deputy Public Protector appointed in the same cumbersome manner in which the Public Protector is appointed, the appointment should be left to the Public Protector without involvement of the Executive.
4. Human resources and the expansion of the office
The Department of Public Service and Administration assisted my office in conducting a work study to establish our needs in terms of human resources. The report on this study was developed into the Blue Print Organization and Post Establishment for my office which will be phased in over a period of 3 to 5 years. According to the Blue Print, my office, with the work load as it was at the time of the study (June to August 1998), required at least 42 investigators. My office consisted of only 12. On the positive side, we have recently created several new positions for investigators and hope to have in the region of 20 within the next two months. I have also appointed 3 Chief Investigators, a Chief Administration Officer, and Public Relations Officer.
I have consulted in terms of section 3(10) of the Public Protector Act, 1994, with the Minister of Finance, who agreed with the Blue Print, subject to the availability of funds. A copy of the organogram of the Blue Print structure of my office, at national and provincial levels, is attached.
I have been approached by the Department of Defence in connection with the appointment of a Military Ombudsman. Following discussions in this regard it was agreed that an investigator with specialist knowledge of military affairs be appointed in my office to attend to complaints of a military nature. This would prevent yet another structure from being created that would have powers exactly similar to those of the Public Protector, albeit only pertaining to military affairs, with resultant duplication of infrastructures. The appointment of the proposed investigator will be made soon. A further annexure in this regard will be furnished by me at the presentation of this report as arranged with the Chairperson of the Joint Standing Committee on Defence at her instance. We are also in the process of establishing a mechanism of specialization into certain issues that we deal with on a regular basis and that require some expertise, such as matters pertaining to local authorities, welfare, tenders, environmental affairs, etc.
5. Regional Offices
The interim Constitution, 1993, provided for the establishment of a provincial Public Protector in every province in South Africa. Provincial Public Protectors would have performed their powers and functions in consultation with the Public Protector, who would have had concurrent jurisdiction in the provinces. Several provincial Legislatures enacted legislation to allow for the appointment of a provincial Public Protector. However, during the drafting of the final Constitution, it was decided to do away with the concept of provincial Public Protectors. Although no provincial Public Protector had been appointed, an expectation had been created in the minds of the public and government agencies that a Public Protector would be available nearby. It is this expectation that my office now has to address by means of decentralization and the establishment of regional offices. Presently, we have to attend to the complaints of almost the whole of South Africa from Pretoria.
The Blue Print discussed under point 4 above, makes provision for regional offices. It should be noted, however, that these regional offices are motivated on the strength of the workload already in the National Office, which will be decentralized to the regional offices. In that sense, the regional offices are not "nice to haves", but imperative to be able to deal with the existing workload. Should these offices not materialise, my office will have to expand at national level in any case to be able to deal with the workload. The latter option would be undesirable because it would not address the obligation of accessibility.
The office of the former Ombudsman of Bophuthatswana is still in existence and have been operating since 1994 in terms of constitutional transitional arrangements. This office has a properly developed infrastructure and had a case load of 4000+ cases last year alone. It has been funded by the North West Provincial Government as it was envisaged that it would be transformed into a Provincial Public Protector`s office. In the light of the fact that the concept of Provincial Public Protectors has disappeared, I have decided to incorporate this office as the Regional Office of the Public Protector in North West Province. The envisaged date of amalgamation is 1 April 1999.
The office of the former Transkei Ombudsman has likewise been operational at Umtata. However, as the seat of the Provincial Government is at Bisho, this office has not been effective and has dealt with a limited number of complaints. It has virtually no infrastructure. As a result of the shortfall on our allocated budget for 1999/2000, it will not be possible to incorporate this office as a Regional Office. However, the Eastern Cape Provincial Government has offered to provide my office with infrastructure and resources on a temporary basis in order to assist us to establish a Regional Office until we have been allocated sufficient funds to be self supportive as far as that office is concerned. We anticipate that this Regional Office will be operational as from 1 May 1999. This assistance is showing the commitment of the Eastern Cape Provincial Government to promote good governance in that Province and recognises the role of the Public Protector in this regard.
6. Financial Affairs
My office was allocated a budget of R7 438 000 for the 1998/1999 financial year. This allocation has been utilized to support the needs of the National Office which has a total staff compliment of 24.
The breakdown is as follows:
Personnel Expenditure R5 025 000
Administrative Expenditure R1 611 000
Stores R 329 000
Equipment R 101 000
Professional and Special Services R 266 000
Miscellaneous Expenditure R 106 000
In the Medium Term Expenditure Framework and to give effect to the proposals of the Blue Print, my office has requested a budget of R 23 535 000. Of this, we have been allocated R 15 399 000 for the 1999/2000 financial year. The shortfall is R 8 136 000.
The requested budget was to accommodate the expansion of the National Office, the incorporation of the office of the former Ombudsman of Bophuthatswana as the North West Regional Office and to establish a Regional Office in the Eastern Cape.
Of the allocated R 15 399 000, R 7 499 000 will be required for salaries at the National Office, R 5 142 000 to carry the cost of the North West Regional Office and R2 758 000 will be needed for administration and other related expenditure.
The shortfall of R 8 136 000 would prevent me from appointing the required number of investigators which will have the effect of the backlog in my office not being addressed effectively. In real terms this means that my office would only be able to afford 20 investigators, while the work study on which the Blue Print is based, indicated that 42 investigators are needed urgently. I will also not be able to appoint the necessary administrative support staff and to fund a fully operational office in the Eastern Cape. This shortfall in the budget is a terrible blow to my office and its effective operation. The dedicated team in my office have been under pressure the past year to each do the work that would normally be done by 2,8 units. It cannot continue like this. I call upon Parliament to have this situation rectified on a most urgent basis. I am acutely aware of the competing demands on the Fiscus and the need to reduce expenditure. However, it is my considered view that different considerations should apply to new structures which are in the process of formation and development, like my office. Equating them with established departments or bodies would be wrong.
7. Relationship with other anti-corruption bodies.
My office is playing a central role in the national anti-corruption initiative. In the process we have developed and streamlined relations with other anti-corruption bodies, such as the Heath Special Investigating Unit, the Anti Corruption Unit of the South African Police Service, the office of the Auditor-General, the Department of Justice the Public Service Commission, etc. My office is presently involved in several investigations with the assistance and co-operation of one or more of these bodies. A system by which overlaps and duplication of efforts can be prevented has also been introduced following a meeting of these bodies in January 1999.
8. Investigations and problem areas identified
During the period under consideration, I have investigated several matters that have been controversial and that have caused substantial public interest. Examples in this regard are:
The investigation into the affairs of the Central Energy Fund. This investigation culminated in a formal hearing of evidence that has been continuing for several months. Several legal teams are involved and I am assisted by a forensic auditor. We anticipate that this investigation will be finalized during the latter part of this year.
The investigation of allegations of impropriety pertaining to the appointment of Mr T Mboweni as Governor of the Reserve Bank.
The investigation of allegations of involvement of senior members of the ANC in the development of a drug called Virodene.
The investigation of the affairs of the Independent Broadcasting Authority.
The investigation of the Mpumalanga Rural Housing Project.
The investigation of the conservation of the Kaaimans River Valley and the estuary.
The investigation of certain appointments in diplomatic positions.
The investigation of allegations of nepotism pertaining to several appointments in the public service.
The results of several of these investigations have been submitted as Special Reports to Parliament as well as to some of the Provincial Legislatures. These Special Reports were submitted as I am of the opinion that the issues concerned require the urgent intervention or attention of Parliament and the relevant Provincial Legislature, or were of public interest.
The majority of the complaints attended to by my office are investigated and resolved in an informal manner. My office has registered 3558 complaints during 1998 and the projection for 1999 amounts to 4981.
I have, as a result of investigations conducted by my office, become increasingly concerned about the lack of proper financial administration in government departments. I am of the view that this can mainly be ascribed to a lack of training and proper supervision. I have, consequently, recommended to Parliament that urgent measures should be taken to ensure that officials of organs of state and of public administrations at all levels of government that deal with financial matters, as well as officials in general, be properly trained. I have also recommended that measures should be introduced to regulate and control these officials, to minimize the risk of abuse and mismanagement of financial systems and to improve the efficiency of financial administration in general. Furthermore, I have recommended that Parliament and Provincial Legislatures should introduce appropriate measures to ensure adherence to the prescribed laws, rules and regulations relating to tender procedures, the evaluation of tenders and proposals and the conclusion of contracts.
My office has during the period under consideration been approached on more than one occasion by members of Parliament. I have raised my concern about the tendency by some of these members to lodge complaints at my office that consist of vague allegations and unsubstantiated rumors and then not to co-operate by providing the details or substance for such complaints, even when specifically requested to do so. I regard such behavior as, to say the least, unbecoming of a member of Parliament.
9. Recent amendments to the Public Protector Act, 1993.
The Committee has played an important role in the amendments of the provisions of the Public Protector Act that were introduced by Parliament during 1998. Some of these changes have already been referred to and the others might be well known to the members of the Committee. However, for the sake of completeness, I have decided to highlight a few of the fundamental changes that the amendments brought about.
9.1 Confidentiality of information
A fundamental problem caused as a result of several provisions of the interim Constitution, 1993, that have not been repeated in the final Constitution, 1996, was that the Public Protector and his staff could be summonsed to appear and testify in a court of law in connection with matters pertaining to investigations. This, obviously, had the potential of information that has been submitted to my office in confidence being compromised. I was, consequently, not in a position to guarantee that the identity of a complainant could be kept confidential. In terms of the amendments to the Public Protector Act, the provisions of section 112(4) of the interim Constitution, 1993, have been incorporated in the Act. Section 6(7) now provides that the Public Protector or any member of his or her staff shall be competent but not compellable to answer questions in any proceedings in or before a court of law or any body or institution established by or under any law, in connection with any information which in the course of his or her investigation came to his or her knowledge.
9.2 Time limitation
To bring the Public Protector Act in conformity with other ombudsman legislation internationally and to clarify the jurisdiction of the Public Protector, the new section 6(9) provides that a complaint should be lodged at my office within a period of two years from the date of the occurrence of the particular incident complained about. This provision will encourage complainants to approach my office timeously which will enable me to conduct more sensible and effective investigations. However, this provision provides me with a discretion to allow for a longer period in special circumstances.
9.3 Preliminary investigation
Section 7 has been amended to provide for a preliminary investigation for the purpose of determining the merits of a complaint, allegation or information and the manner in which the matter concerned should be dealt with. The format and the procedure to be followed in conducting any investigation shall be determined by the Public Protector.
9.4 Entering upon premises by the Public Protector.
In terms of the provisions of the new section 7A, the Public Protector is competent to enter any building or premises and there to make such investigation as he or she deems necessary and to seize anything which has a bearing on the investigation.
9.5 Reports
Any report by the Public Protector now also has to be tabled in the National Council of Provinces. We welcome this change as it will have the effect of our findings and recommendations being submitted to the whole of Parliament.
10. The 7th International Conference of the International Ombudsman Institute
The International Ombudsman Institute (IOI) is the international umbrella body for ombudsman institutions of which the Public Protector is one. The purpose of the IOI is, inter alia, to promote the concept of ombudsmanship and to encourage its development throughout the world. Its membership includes ombudsman institutions from about 80 countries. The office of the Public Protector is a full member of the IOI. Every four years, the International Ombudsman Institute (IOI) has its international conference where IOI members from all over the world gather to confer on issues of importance to the ombudsman community. The conference is a prestigious one. It is an honour for a member country to be entrusted with the hosting thereof. Hosting the conference will not only enhance public awareness of the Public Protector, but will also enable South Africa to forge valuable links with ombudsman institutions the world over, to the benefit of my office.
This important international event has never been hosted by a country in Africa. During November of 1998,
I was informed that the IOI Board of Directors decided, for the first time, to allow an African country to host the International Conference and therefore to accept our bid to host the "New Millennium"-conference.
To qualify as host of the International Conference, the host office should be a voting member of the IOI. The office should also be well established in its own country, with a good reputation. The person acting as host should be a person of experience. The decision of the Board of Directors of the IOI can therefore be seen as a vote of confidence in my office.
It is anticipated that in excess of 400 delegates from outside South Africa, and at least 200 delegates and guests from South Africa will attend this conference. The duration of the conference is 4 days and it is scheduled to take place in October 2000.
11. Conclusion
Despite financial constraints, my office has managed to be to the assistance of thousands of complainants during the period under discussion. Our efforts have been recognized internationally and we have managed to expand and to decentralize, albeit in a limited fashion, to be more accessible to the inhabitants of South Africa. We will continue this process and will leave no stone unturned to obtain more resources to improve our service.