A. ROLE AND FUNCTION

1. How do you view your institution’s constitutional/legal mandate? In other words provide a description of your understanding of your institution’s constitutional/legal mandate.

1.1 General constitutional principles applicable to the Public Protector as an institution

1.1.1 The Public Protector is an organ of state as contemplated by section 239(a)(i) of the Constitution, 1996 (the Constitution). It therefore has to comply with the general principles of co-operative government and intergovernmental relations, as provided by section 41. The following principles are of particular significance to the application of the constitutional mandate of the Public Protector[1]:

1.1.1.1 Securing the well-being of the people of the Republic[2];

1.1.1.2 Providing effective, transparent, accountable and coherent government for the Republic as a whole[3];

1.1.1.3 Respecting the constitutional status, institutions, powers and functions of government in all spheres[4];

1.1.1.4 Not assuming any power or function except those conferred on it in terms of the Constitution[5]; and

1.1.1.5 Co-operating with other organs of state and all spheres of government in mutual trust and good faith[6].

1.1.2 As a constitutional institution, the Public Protector has to comply with the principle of legality contained in section 2 of the Constitution, which provides that conduct inconsistent with it is invalid and the obligations imposed by it must be fulfilled.

1.1.3 The Public Protector is also subject to the provisions of section 237, which provides that:

“All constitutional obligations must be performed diligently and without delay.”

1.2 The establishment and governing principles of the Public Protector

1.2.1 The Public Protector was established by the provisions of Chapter 9 of the Constitution as one of a cluster of institutions that strengthens the constitutional democracy of the Republic.

1.2.2 It is independent, subject only to the Constitution and the law and must be impartial. The Public Protector has to exercise its powers and perform its functions without fear favour or prejudice[7].

1.2.3 All other organs of state must assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness[8].

1.2.4 No person or organ of state may interfere with the functioning of the Public Protector[9].

1.2.5 The Public Protector is accountable to the National Assembly and must report on its activities and the performance of its functions at least once a year[10].

1.3 The constitutional mandate of the Public Protector

1.3.1 Section 182(1) of the Constitution provides that the Public Protector has the power, as regulated by national legislation, to-

“(a) 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;

(b) to report on that conduct; and

(c) to take appropriate remedial action.” (emphasis added)

1.3.2 The Constitution also afforded the Public Protector additional powers and functions prescribed by national legislation[11].

1.3.3 The Public Protector may not investigate court decisions[12].

1.3.4 In terms of section 182(4), the Public Protector must be accessible to all persons and communities.

1.4 The legal mandate in terms of the Public Protector Act, 1994

1.4.1 The constitutional mandate of the Public Protector is further defined and extended by the provisions of sections 6(4) and 6(5) of the Public Protector Act, 1994 (the Public Protector Act). In terms of these provisions the Public Protector is competent to investigate on own initiative or on receipt of a complaint any alleged:

1.4.1.1 maladministration in connection with the affairs of government at any level, of any institution in which the State is the majority or controlling shareholder or of any public entity as defined in section 1 of the Public Finance Management Act, 1999;

1.4.1.2 abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function or performing a function in connection with his or her employment by an institution or entity contemplated in paragraph 1.4.1.1 above;

1.4.1.3 improper or dishonest act or omission or offences referred to in the Prevention and Combating or Corrupt Activities Act, 2004, with respect to public money;

1.4.1.4 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 an institution or entity contemplated in paragraph 1.4.1.1 above, or of a person performing a public function;

1.4.1.5 act or omission by a person in the employ of government at any level or of an institution contemplated in paragraph 1.4.1.1 above, or of a person performing a public function, which results in unlawful or improper prejudice to any other person.

1.4.2 The constitutional mandate of the Public Protector in respect of remedial action to be taken, is more clearly defined in section 6(4)(b) of the Public Protector Act, which provides that a dispute, including a dispute relating to the operation or administration of the Promotion of Access to Information Act, 2000, can be resolved or any act or omission rectified by:

1.4.2.1 mediation, conciliation or negotiation;

1.4.2.2 advising, where necessary, any complainant regarding appropriate remedies; or

1.4.2.3 any other means that may be expedient in the circumstances.

1.4.3 If at any time prior to, during or after an investigation the Public Protector is of the view that the facts disclose the commission of an offence by

any person, the matter may be brought to the notice of the relevant authority charged with prosecutions[13].

1.4.4 When it is deemed advisable, the Public Protector may refer any matter which has a bearing on an investigation to the appropriate public body or authority affected by it. He/she can make an appropriate recommendation regarding the redress of prejudice found in an investigation or any other appropriate recommendation that he/she deems expedient to a public body or authority affected by an investigation[14].

1.4.5 The Public Protector may refuse to investigate a matter reported if the persons ostensibly prejudiced is-

1.4.5.1 an officer or employee in the service of the State or is a person to whom the provisions of the Public Service Act, 1994 are applicable and has not taken all reasonable steps conferred upon him or her in terms of the said act; or

1.4.5.2 prejudiced, but has not taken all reasonable steps to exhaust his or her legal remedies in connection with the matter concerned[15].

1.4.6 Any finding, point of view or recommendation of the Public Protector in respect of a matter investigated may be made known by him or her to

any person and in the manner he or she deems fit. The Public Protector has to report to the National Assembly on the activities of his or her office at least once every year. He/she may, at any time, submit a report to the National Assembly on the findings of a particular investigation if-

1.4.5.1 he or she deems it necessary;

1.4.5.2 he or she deems it in the public interest;

1.4.5.3 it requires the urgent attention of or an intervention of the National Assembly;

1.4.5.4 he or she is requested to do so by the Speaker of the National Assembly or the Chairperson of the National Council of Provinces[16].

1.5 The provisions of the Executive Members Ethics Act, 1998

1.5.1 This Act provides for a code of ethics, published by the President, governing the conduct of members of the Cabinet, Deputy Ministers and members of provincial Executive Councils.

1.5.2 The Public Protector must investigate any alleged breach of the code of ethics on receipt of a complaint by-

1.5.2.1 the President, a member of the National Assembly or a permanent delegate to the National Council of Provinces, if the complaint is against a Cabinet member or a Deputy Minister; or

1.5.2.2 the Premier or a member of the provincial legislature of a province, if the complaint is against an MEC of the province.[17]

1.5.3 Within 30 days of receiving the complaint, the Public Protector has to submit a report to the President, if the complaint is against a Cabinet

member, Premier or Deputy Minister, or to the Premier of the province concerned, if the complaint is against an MEC.

2. What role or function does your institution perform that is not carried out by other institutions, whether in government or civil society?

2.1 The Public Protector is the national Ombudsman of the Republic. No other institution has been afforded the powers of the Public Protector to investigate improper or unlawful conduct by government institutions, public entities and persons performing public functions with the focus on improving the public administration and thereby supporting our constitutional democracy.

2.2 As will appear from what is stated below[18], the provisions of national legislation regulating the powers and functions of certain other constitutional and statutory institutions might give the impression of an overlap of its role, powers and duties with that of the Public Protector.

Proper interpretation of the relevant provisions however clearly shows that it was not the intention of the Legislature to duplicate the role and functions of these institutions. The practical reality is that such overlaps

seldom occur, mainly because of the well defined differences in the roles and mandates of the institutions.

2.3 Civil society organisations involved in the public sector only performs a monitoring and reporting role. These organisations do not have the powers of the Public Protector and can therefore not perform similar functions and have the same impact.

3. In what way, if any, does the role and function of your institution overlap or potentially overlap with other Chapter 9 institutions?

3.1 There appears to be a perception that there is an overlap between the role and functions of the Public Protector and that of the South African Human Rights Commission (SAHRC) and the Commission on Gender Equality (CGE).

3.2 This perception appears to be based on the fact that the provisions of the Constitution that established the Commissions afforded them the powers to investigate and report on issues relating to human rights and gender equality[19]. As far as government institutions, public entities and persons performing a public function are concerned, the Public Protector can also investigate allegations or suspicions in regard to improper conduct that relate to human rights or gender equality violations. However, the role

and functions of the Commissions are fundamentally different from that of the Public Protector[20].

3.2.1 In terms of section 184(1) of the Constitution, the SAHRC must-

3.2.1.1 promote respect for human rights;

3.2.1.2 promote the protection, development and attainment of human rights; and

3.2.1.3 monitor and assess the observance of human rights in the Republic.

3.2.2 It is in order to enable the Commission to perform these functions that it has been afforded the power to investigate and report on the observance of human rights and to take steps to secure appropriate redress where human rights have been violated[21].

3.2.3 The SAHRC’s mandate is not limited to government institutions and public entities.

3.2.4 Similarly, the CGE must promote respect for and the protection, development and attainment of gender equality. In order to comply with its role, the Commission has the power to, inter alia, investigate and report on issues concerning gender equality.

3.2.5 The CGE’s mandate is also not limited to government institutions, public entities and persons performing a public function.

3.2.6 As indicated above, the focus of the Public Protector’s constitutional mandate is not on promotion or monitoring of rights, but on the investigation of allegations of improper conduct, reporting and the taking of remedial action. Its role therefore is to address the alleged misconduct of the public body or official concerned with a view of improving the public administration.

3.2.7 The perceived overlap between the roles and functions of the Commissions and the Public Protector was the subject of a joint meeting

shortly after the establishment of the said bodies. It was agreed that the Public Protector’s mandate is to investigate complaints of allegations of specific improper conduct, but that a tendency of human rights or gender equality violations by a public body would be referred to the Commissions to deal with in terms of their mandate.

3.2.8 In practice, the perceived overlaps have not caused any difficulties or significant duplication of investigations. The Public Protector and the Chairpersons of the Commissions meet on a regular basis to discuss matters of mutual concern. Possible overlaps in investigations are also identified to ensure that every institution focuses on its specific mandate.

3.2.9 There is also a perception that the role and function of the Public Protector overlaps with that of the Public Service Commission (PSC).

3.2.10 This view is based on the fact that the PSC also has powers of investigation within the public service, similar to that of the Public

Protector. However, the difference is that the role of the PSC is to promote the values and proper public administration contained in section

195 of the Constitution throughout the public service only[22]. The mandate of the Public Protector goes wider than that of the PSC. It should also be noted that the Public Protector is meant to be a last resort to a public servant who, after having exhausted his or her remedies in terms of the Public Service Act, 1994, which includes referring the matter to the PSC, still has reason to believe that he/she has been improperly prejudiced[23].

3.2.11 In order to address any misunderstanding that might occur in regard to the different mandates of the Public Protector and the PSC, the two bodies entered into a Memorandum of Understanding in terms of which the Public Protector would investigate complaints against the public service by members of the public and the PSC would attend to complaints against the public service by public servants.

3.2.12 The mandate of the Special Investigating Units, established in terms of the Special Investigating Units and Special Tribunals Act, 1996 also appears to overlap with that of the Public Protector.

3.2.13 The said Act provides for the establishment of Special Investigating Units for the purpose of investigating serious malpractices or maladministration in connection with the administration of state institutions, state assets and public money as well as any conduct which may seriously harm the interests of the public. It also provides for the establishment of Special

Tribunals so as to adjudicate upon civil matters emanating from investigations by the Units.

3.2.14 A characteristic of a Special Investigating Unit is that it is established by proclamation of the President for a specific purpose[24]. It is therefore not a permanent institution and has to disband on completion of its investigations.

3.2.15 The functions of a Special Investigating Unit is mainly to:

3.2.15.1 investigate the allegations referred to in the proclamation;

3.2.15.2 Collect evidence relevant to the investigation and to institute proceedings in a Special Tribunal against the parties concerned. The Special Tribunal has powers equal to that of the High Court in a civil matter.

3.2.16 The establishment of a Special Investigating Unit is therefore clearly aimed at preventing a loss and the recovering of state assets.

3.2.17 The Legislature recognised the difference between the mandates of the Public Protector and a Special Investigating Unit, hence the provisions of section 5(6), of the said Act, which provides that:

“(a) Upon the establishment of a Special Investigating Unit the Head of such Unit must provide the Public Protector with a copy of the proclamation referred to in section 2(1).

(b) The Head of a Special Investigating Unit may refer any matter which, in his or her opinion, could best be dealt with by the Public Protector, to the Public Protector and the Public Protector may, if he or she deems it appropriate, refer any matter which comes to

his or her attention and which falls within the terms of reference of a Special Investigating Unit, to such Unit.”

4. What outcomes do you strive for in order to realise the constitutional/legal mandate set out in 1 above

4.1 The Vision of the Office of the Public Protector is stated in the Three Year Strategic Plan for the Period 1 April 2006-31 March 2009 (Annexure “A” as:

“The Office of the Public Protector strives to be efficient, effective, accessible, known by all, and with its impartiality accepted, thereby strengthening constitutional democracy in all organs of State.”

4.2 The Vision underwrites the following:

4.2.1 To be efficient:

Services that are:

· Informed;

· Timeous; and

· Of the highest quality standards.

4.2.2 To be effective:

· Ensuring that recommendations proposed by the Public Protector are accepted and implemented by organs of state; and

· Reducing the recurrence of maladministration.

4.2.3 To be accessible:

· All South Africans should know about the Office of the Public Protector;

· Visibility; and

· Reaching out to the poorest of the poor.

4.3 The Mission of the Office of the Public Protector is stated in the Strategic Plan as:

“The Office of the Public Protector is an independent and impartial constitutional institution established to strengthen constitutional democracy by conducting investigations into alleged improper conduct by organs of state, facilitating resolution of disputes, reporting and recommending remedial action and enhancing awareness about the role and functions of the office.”

4.4 To enable the Office of the Public Protector to achieve its Vision and Mission, the following core values have been identified as crucial for success:

4.4.1 Impartiality: Ensuring impartiality in interactions with stakeholders and performing duties without fear or favour, mindful of the independence of the Public Protector;

4.4.2 Courtesy: Treating all people with dignity and respect;

4.4.3 Integrity: Striving to maintain high standards of trustworthiness;

4.4.4 Accountability: Accounting for all actions and decisions;

4.4.5 Service orientated: Striving to execute responsibilities timeously, fairly and consistently, with due regard given to the facts of each matter investigated.

5. Does the empowering legislation governing your institution provide a clear, workable and comprehensive legal framework that supports and empowers the institution to successfully fulfil its core mandate?

5.1 Yes it does. Certain provisions of the Public Protector Act however, require minor amendments to bring the Act in line with recent jurisprudence and international best practices and to streamline the investigation procedures of the Office. A process to identify these provisions and to propose the

relevant amendments to Parliament has already commenced and should be finalised early in 2007. Further shortcomings are more fully reflected in a report by the Ad hoc Committee that was appointed to deal with alleged operational problems within the Office of the Public Protector and are not regurgitated herein. For easy reference the report is attached herewith as Annexure “B”

6. What measures do you have in place to measure the outcomes set out in 4 above, and how do you assess the effectiveness and impact of your work?

6.1 The Strategic Plan of the Office of the Public Protector[25]includes an Organisational Strategy consisting of the following programmes:

6.1.2 Investigations and Reporting;

6.1.3 Communication Services;

6.1.4 Corporate Support Services; and

6.1.5 Knowledge Management and Information.

6.2 Each of the programmes is divided into sub-programmes. Reaching the strategic objectives of every programme is measured against a specific output for each of the three years concerned.

6.3 The progress made in regard to the specified outcomes is evaluated on a quarterly basis by means of quarterly reports by every unit or division in the Office and on an annual basis when a review of the Strategic Plan is performed.

6.4 The effectiveness of the work of the Office of the Public Protector is also measured in terms of the number of complaints successfully resolved within specified periods.

6.5 The impact of the investigations by the Office of the Public Protector is measured by following up on the successful implementation of recommended remedial actions by the Public Protector in regard to the improvement of the public administration and systems related thereto.

6.6 A copy of a three year strategic plan for the together with an annual plan for the OPP for the 2006/7 financial year is attached herewith as Annexures “A”. A 2007/8 strategic plan will be completed by the 31^st March 2007 and will be made available to the Review Committee, if needs be, during April 2007.

6.7 Each employee within the OPP signs a performance agreement. The performance agreement spells out in greater details specific delivery indicators ( SDI’S). On a quarterly basis the OPP assesses whether or not the specific goals and objectives as set out in a three year strategic plan have been met and compliance is audited by Auditor General and OPP Internal Auditors.

6.8 The OPP is currently working towards the compilation of a Service Charter that will be made available to the public at large. Currently Service

Delivery Indicators (Annexure “C”) has been drafted and is being implemented internally as a pilot project and once it is ascertained that the bench marks reflected therein can be implemented and that they are realistic, a Service Charter will then be drawn and made available to members of the public as referred to above.

7. Have you carried out any evaluation looking at the success or otherwise of your functions, especially in relation to recommendations sent to government, Parliament or other public institutions?

7.1 One of the strategic objectives of the Office of the Public Protector is to monitor and report on the implementation of remedial action recommended to organs of state, following investigations into complaints or allegations of improper conduct.

7.2 The success rate in this regard is very high. It very seldom happens that a recommendation is ignored or not implemented, although some delays do occur in this regard from time to time. The target for achieving this strategic objective set for the 2008/9 financial years are 90% of recommendations implemented.

7.3 Compliance with this strategic objective is also measured on a quarterly and annual basis, as set out in paragraph 6.3 above.

8. What have been/are the major constraints facing your institution and how have these impacted on its ability to achieve its mandate?

8.1 Budgetary constraints

8.1.1 The budget allocated to the Office of the Public Protector has substantially increased over the years since its inception. However, as the number of complaints increased and the Office expanded to comply with its constitutional mandate of accessibility, the funds allocated have been found wanting. Budgetary constraints therefore negatively impacted on the effectiveness of the Office as investigators have to carry large loads of cases and expansion into remote areas where the poorest of the poor are in dire need of the services of the Office has to be deferred year after year.

8.1.2 Retention of skilled staff

The Office has found it difficult to retain certain skilled and experienced staff. These individuals are often persuaded to leave for greener pastures and salary packages and career opportunities elsewhere. The office is in the process of drafting a staff retention strategy as recommended by the Ad Hoc Committee referred to above (vide Annexure “D”)

8.1.3 Co-operation by organs of state

Investigations are often delayed by the failure of certain of the affected departments or public entities to cooperate and to do so timeously.

8.1.4 Negative perceptions created by the media

8.1.4.1 The media focuses only on the controversial and often highly politicised complaints lodged with the Office. Many of these complaints

are lodged by members of opposition political parties who use the opportunity to also gain some public exposure. When findings are made in favour of the institutions or officials against whom allegations were made, the matter is further politicised and the Public Protector is accused, by certain elements in the media, of bias in favour of the ruling party. These accusations are usually based on the reaction of the complainants to the findings of the Public Protector without taking into account the facts and the evidence evaluated during the investigation, as stated in the relevant reports. However, when findings are made against officials or public institutions it appears to raise very little interest of the same media entities.

8.1.4.2 These politicised and controversial matters represent a very small percentage of the work performed by the Office of the Public Protector. The many thousands of complaints of improper prejudice, abuse of power and maladministration that are resolved every year are never of any interest to the media and mostly not reported, despite efforts to provide them with detailed information.

8.1.4.3 The impact of selective and unfounded negative reporting by certain media entities is a negative public perception that the Public Protector only investigates high profile cases and/or that the Public Protector always finds in favour of the Government or the State, which is not the case.

8.1.4.4 One particular matter, the so called “Oil-gate Scandal” is currently serving before the High Court. The applicant is Mail & Guardian newspaper challenging the findings of the Public Protector and in

particular the alleged narrow or parochial approach adopted by the Public Protector on the scope of the investigation as well as the interpretation of the mandate of OPP.

B. RELATIONSHIPS WITH OTHER BODIES

9. How do you view your institution’s relationship with the executive and Parliament, given its constitutionally guaranteed independence and impartiality and the constitutional requirement to be accountable to the National Assembly?

In particular please address the following issues:

a. What legal and other mechanisms are in place to ensure and strengthen your institution’s independence;

9a.1 Independence is internationally considered to be the core characteristic of an Ombudsman’s office such as the Public Protector. The statutory provisions safeguarding the Office’s independence are as follows:

9a.1.1 The Constitution provides that the Public Protector is independent and subject only to the Constitution and the law. It also compels the Public Protector to be impartial and to exercise his/her powers and perform his/her functions without fear, favour or prejudice[26]. Further, other

organs of State, through legislative and other means, must assist and protect the Public Protector to ensure the independence, impartiality,

dignity and the effectiveness of this institution[27]. In addition, section 181(4) prohibits any person or organ of state from interfering with the functioning of the Public Protector.

9a.1.2 Another traditional safeguard for the independence of the Public Protector is found in the provisions of the Public Protector Act[28] where it is provided that the remuneration and other terms and conditions of employment of the Public Protector shall be determined by the National Assembly and cannot be reduced or adversely altered during his/her term in office.

9a.1.3 In relation to impartiality, section 3(13) of the Public Protector Act provides that “a member of the office of the Public Protector shall serve impartially and independently and perform his or her functions in good faith and without fear, favour, bias or prejudice.”

9a.2 As indicated above, the independence and impartiality of the Office are firmly entrenched in the Constitution and Public Protector Act. However, a challenge facing the Office in this regard is that of functional independence, which entails adequate budget procedures and allocations. Theoretically, the current funding arrangement via the Executive could compromise the Office’s independence. Although the Office has not encountered real funding difficulties, international experience has shown that if the Executive wants to curb an Ombudsman office, the most effective way to do it, short of repealing the legislation, is to starve the

office of resources. This is theoretically possible under the current funding mechanism.

9a.3 Another challenge is a lack of co-operation with the Office on the part of certain organs of State in relation to investigations. The lack of such cooperation was reported on in the Zuma matter. The Constitution and

the Public Protector Act give the Public Protector wide powers to be used during an investigation, amongst others: the power to enter any premises to conduct searches and where necessary, to seize and confiscate any document that may be necessary for the conclusion of such an investigation. The Public Protector may also subpoena any person to appear before him/her and if needs be, to produce any specified documents. The challenge for the Public Protector is therefore to adopt an investigative approach that is acceptable to both parties so as to ensure a buy-in by both parties and only use those additional powers in exceptional circumstances. Furthermore, where a state organ ignores a recommendation by the Public Protector, the latter may table a report on such an investigation in Parliament. Following this, Parliament might call on such a defaulting party to account for the stance adopted. The process has to a large extent acted as a deterrent and, it may be said that the recommendations of the Public Protector have been implemented almost without exception and where necessary, adopted by Parliament.

9b. What mechanisms are in place to facilitate reporting to (and being accountable to) the National Assembly;

9b.1 The fact that the Public Protector is accountable to the National Assembly does not contradict its constitutional status and independence in

exercising its powers. Accountability is understood in the context of rendering an account of what one has done (or failed to do) and does not necessarily imply interference in decision-making or exercising of powers

by the Public Protector. Accountability to the National Assembly is viewed rather in the light of a system of checks and balances in terms of which no single power of State is fully autonomous, but is subject to scrutiny and accountability.

9b.2 The Public Protector is accountable to the National Assembly and has to report to it on the performance of the functions of the institution, at

least once a year. The Public Protector Act provides that any report submitted to the National Assembly shall also be tabled in the National Council of Provinces[29]. Section 8(2)(b) of the Act provides that the Public Protector shall at any time submit a report to the National Assembly on the findings of a particular investigation if he/she deems it necessary, or in the public interest, or if it requires the urgent attention of the National Assembly, or if so requested by the National Assembly or National Council of Provinces. Perhaps the proper wording should have been that the Public Protector is accountable to Parliament. Currently all reports otherwise meant for the National Assembly are tabled in both Houses.

9b.3 The Parliamentary Portfolio Committee on Justice oversees most accountability matters. The parliamentary committee to which the Public Protector reports, is the only crucial link between the Office and Parliament to give additional weight to the Public Protector’s findings and recommendations. This committee checks whether or not the OPP meets

its strategic objectives as set out in the Strategic Plan, in particular to also check compliance with its mandate.

9c How do you view your relationship with the executive and under what circumstances do you engage the executive.

9c.1 Section 182(1) of the Constitution empowers the Public Protector to investigate, report on and to take remedial action in relation to any conduct in the public administration in any sphere of government, which

includes national, provincial and local government. The Office therefore complements Parliament’s oversight function in the entire public sector.

9c.2 The Office of the Public Protector considers its relationship and interaction with the Executive of paramount importance in order to perform its functions efficiently and effectively. The Office has established provincial offices in all nine provinces with a view to not only being accessible to all persons and communities in South Africa, but also to exercise its complaints handling and oversight function at provincial levels of government.

9c.3 Further, reports containing findings and recommendations are often tabled with the various executive heads and their respective administrations. Interaction between the Office and the government at national, provincial and local level takes place on a daily basis in dealing with complaints lodged with the Public Protector.

9c.4 In order to discharge its constitutional mandate, the Office continually endeavours to foster and maintain good relationships with all levels of government.

10. Is Parliament currently effectively fulfilling its oversight role over your institution? If not, how can this be improved?

10.1 Generally, the current system and practice of reporting and accounting to the National Assembly are considered to be adequate and conforms to international practice. However, on a practical level, the following might improve interaction:

10.1.1 Chapter 9 institutions are accountable to Parliament. Currently the Justice Portfolio Committee oversees most accountability matters relating to the Public Protector, for instance annual reports. Interaction between the Office and the said Committee is however occasional. Ombudsman colleagues universally comment on the importance of a direct relationship and frequent interaction with Parliament. It is felt that there should be improved engagement beyond reporting between the National Assembly and the Public Protector in order for these institutions to complement each other. The benefits include-

10.1.1.1 The combined oversight efforts of both the Public Protector and Parliament ensure increased service delivery in the Public Service. In this regard Chapter 9 institutions are resources to Parliament to fulfil its own oversight responsibilities;

10.1.1.2 Debates and adoption of reports in parliamentary committees reinforce Chapter 9s’ work in practical terms;

10.1.1.3 Any tensions in relation to independence of Chapter 9s could be eased. Parliament could also assist Chapter 9s in guarding their independence against external threats.

10.1.2 When exercising oversight, parliamentary structures should be sensitised that Chapter 9s have different needs, structures, programmes and reporting responsibilities when compared to the Executive.

10.1.3 In general, the Public Protector favours frequent interaction with Parliament in relation to operational and accountability issues.

10.1.4 Currently the Office of the Public Protector appears once a year and at

times for an hour or less before the Justice Portfolio Committee to make its presentation. Obviously this is insufficient to interrogate all relevant issues. Ideally a special Parliamentary Committee to monitor the activities of Chapter 9 institutions would be preferable.

11. What was the intended relationship of accountability between your institution and other institutions supporting constitutional democracy and the different branches of government? To what extent have these relationships been realised?

11.1 As mentioned above, section 182(1) of the Constitution empowers the Public Protector to investigate, report on and to take remedial action in relation to any conduct in the public administration in any sphere of

government, including national, provincial and local government. The Office therefore has an indirect oversight function in the entire public sector, including other Chapter 9 institutions. For instance the OPP conducted an intensive investigation into alleged operational failures within the Commission on Gender Equality.

11.2 Similarly, the Public Protector is also accountable to other institutions supporting constitutional democracy (and vice versa), for instance to the Auditor-General in relation to its accounts, financial statements and financial management. Chapter 9 institutions also cooperate in exercising their oversight responsibilities, for instance in the area of investigations and referral of matters.

11.3 The Public Protector has established provincial offices in all nine provinces as well as some regional offices in order to improve its complaints

handling and oversight function efficiently and effectively at provincial and local levels of government. Reports containing findings and specific recommendations are often tabled with the various executive heads and their respective administrations.

11.4 Interaction between the Office and government at national, provincial and local level takes place on a daily basis in dealing with complaints lodged with the Public Protector. Accordingly, in order to discharge its constitutional mandate, the Office continually endeavours to foster and maintain good relationships with all levels of government. As mentioned above, the OPP faces the challenge from time to time of a lack of

co-peration with the Office on the part of certain organs of State in relation to investigations.

12. Does your institution have any official or informal relationship with other Chapter 9 institutions or institutions of a similar nature? If yes, describe the nature of this relationship and the outcomes envisaged and generated by this relationship.

12.1 The Public Protector has both formal as well as informal working relationships with other Chapter 9 institutions. Firstly, it could be mentioned that collaboration takes place at executive level, where the heads of the Office of the Public Protector, the SAHRC and the CGE meet from time to time to discuss common challenges. Similar meetings take place between provincial heads from the respective institutions at provincial level. These meetings are however, not structured as regular as they ideally should be. A lot still has to be done to improve collaboration between these institutions.

12.2 The Office of the Public Protector however acknowledges that deeper levels of communication, shared programmes and contact could be fostered between Chapter 9 institutions. An example of such shared programmes would be outreach and public education initiatives. It should be mentioned that some of the Chapter 9 institutions are already collaborating in this regard (for instance joint public education workshops and other outreach activities), but initiatives could be improved by means of, for instance, synergy of outreach and other strategies.

13. What is the extent of collaboration and coordination of the work carried out by your institution and similar/related work carried out by other Chapter 9 institutions or institutions of a similar nature? Give examples of successful initiatives in this regard.

13.1 Chapter 9 of the Constitution created a number of institutions with investigative powers that all have the mandate of strengthening our constitutional democracy, such as the Public Protector, Auditor-General, the SAHRC and the CGE. The mandates of these institutions, in certain instances, overlap with that of the Public Protector, although their focus might be somewhat different. However, in order to avoid a duplication of efforts, a working arrangement was established over the years in terms of which particular types of investigations and complaints are attended to by specific institutions. For instance, the Public Protector, SAHRC and CGE have the common understanding that specific complaints of abuse by organs of State should be referred to the Public Protector, whilst broader incidents and tendencies of human rights abuse and infringement of gender rights will be attended to by the two commissions respectively. Similarly, the Public Protector entered into a memorandum of understanding with the Public Service Commission (a Chapter 10

institution), by virtue of which the Public Protector investigates complaints against the public service emanating from members of the public, whilst the Commission investigates complaints of aggrieved public servants. (Vide Annexure “A” and paragraph 3.2.11 supra)

13.2 The said institutions also collaborate in regard to investigations where the expertise and skills of the one can be of assistance to the other. A typical example is the so called “arms deal” investigation where the Office of the

13.3 Public Protector, the Office of the Auditor-General and the National Prosecuting Authority conducted a joint investigation in connection with alleged irregularities with regard to the awarding by the state of contracts for armaments to certain contractors. Another example is for instance collaboration between the Public Protector and CGE to deal with systemic deficiencies following complaints received from predominantly women in

relation to problems experienced by them in accessing the maintenance system in our courts. Collaboration in this regard also takes place at provincial level, for instance recently the Free State Provincial Office of the Public Protector collaborated with the CGE and the Independent Complaints Directorate in a case of alleged child abuse.

13.4 As mentioned above, the Public Protector, SAHRC and CGE are collaborating in the areas of outreach and public education. In this regard it is also noteworthy that these three Chapter 9s participate in the Civil Society Advocacy Programme. The purpose of this Programme is to address the weakness of civil society advocacy in the Eastern Cape, KwaZulu-Natal and Limpopo and the under-capacity of Chapter 9 institutions to facilitate vulnerable groups to access their constitutional rights. The Programme is a three-year initiative funded by the European

Union and will enhance collaboration between the Public Protector, SAHRC and the CGE together with civil society organizations.

13.4 A Civil Society Advocacy Programme (CSAP) sponsored by the European Union is being internalised. In terms of this programme the following draft reports have been compiled:

13.4.1 Organisational and Institutional assessment of the South African

Office of the Public Protector;

13.4.2 Training and Development Needs Analysis of the OPP; and

13.4.3 Communication Assessment of the OPP, SAHRC and CGE

13.5 The reports referred to above are available but have not yet been adopted by the Management Committee and we still await final reports which will then be made available to the Review Committee. The reports are quite extensive and it is hoped that they will assist the Review Committee to a certain extent.

C INSTITUTIONAL GOVERNANCE

14 What are the institutional governance arrangements in your institution? Are these arrangements clearly set out and do they allow for a smooth running of the institution? Is there a clear, logical and workable division between the members of your institution appointed by the President on the advice of the national assembly and the secretariat? What suggestions do you have to improve the institutional governance arrangements?

14.1 THE CONDITIONS OF SERVICE POLICY

14.1.1 The Conditions of Service Policy of the OPP was adopted in February 2005. The Public Protector fulfils his/her role in terms of the 1996 Constitution, the Public Protector Act No.23 of 1994 (the Act) and the

Conditions of Service Policy of the OPP. It is his/her responsibility to empower Managers and employees with the necessary authority by means of appropriate delegation and authorisation, where necessary.

14.1.2 The Public Protector’s ‘Conditions of Employment’ confers a power or

imposes a duty upon him/her subject to the Act to:

14.1.2.1 delegate the power to the Deputy Public Protector, Managers (including Provincial Representatives) or an employee or authorise them to perform specific duties; and

14.1.2.2 set conditions for the exercise of the power or performance of such

delegated duties.

14.1.3 This policy also provides for the Public Protector to record such delegation or authorisation in writing and to incorporate it in the contract of employment of such employees, including the Deputy Public Protector.

14.1.4 The policy goes on to provide in section 2:

14.1.4.1 The Public Protector may not require or permit the Deputy Public

Protector or Managers or any other employee to engage in an activity or take a decision in breach of these Conditions of Service.

14.1.4.2 The Public Protector shall ensure that the employees within his or

her office comply with these conditions of service and any other statutory obligations and deal immediately and effectively with any breach thereof.

14.1.4.3 The Public Protector shall exercise his or her powers, perform his

or her duties and carry out his or her obligations under these Conditions of service subject to the Labour Relations Act .

14.1.4.4 The Public Protector and the Accounting Officer shall ensure that

prior Treasury approval exists for any decision that involves expenditure from revenue.

14.1.5 Section 2.4 of the said policy provides a mechanism for which the Office of the Public Protector can address a conflict of interest in employment acts or decisions.

14.1.5.1 Where a possible conflict of interest arises in the making of any

decision relating to employment, the Public Protector or an employee to whom any power or duty has been delegated or assigned, shall perform the act or make the decision only after considering a recommendation of an independent panel consisting of at least two persons.

14.1.5.2 Where the Public Protector or the employee to whom a power or

duty has been delegated or assigned, deviates from the panel’s recommendations, he or she shall record the reasons for the deviation in writing.

14.1.5.3 The Public Protector or employee shall not accept or seek material

recompense of any kind from an employee or a prospective employee in return for performing an act or making a decision relating to employment.

14.1.6 Chapter 3 of this policy makes provision for the Public Protector to

set measurable objectives for his office, optimally utilise the human and other resources and apply fair labour practices. “Within available funds, he or she shall, based on the objectives and mandate of the Office of the Public Protector, plan to execute functions with an efficient and effective internal organisation and well developed human resources”.

14.17. A copy of the Organizational structure is attached hereto as Annexure “D”. The Organisational structure is being reviewed in order to make it commensurate with the2007/8 three year strategic plan. In general the organisational structure is reviewed every eighteen months.

14.2 The institutionalised and formalised procedures

14.2.1 The Office of the Public Protector has a Human Resources Development

Policy that allows it to employ the number of employees and the type of employees it requires to meet its goals and objectives. The new and

approved organizational structure contains a supporting document with clearly defines roles and job descriptions. Together with its leadership positions with regard to policy, planning and overseeing management, the office undertakes periodic surveys to determine whether it is satisfied with

the activities and services, the systems in place to promote and protect the integrity of the office and its mechanisms for internal accountability.

14.3 The Justice Portfolio Committee

14.3.1 Currently the Justice Portfolio Committee (JPC) inter acts with the OPP once or sometimes twice annually where it interrogates the activities and functioning of the OPP. Paragraph 10.1.1-10.1.4 supra deals more with the role of the JPC.

14.4 Leadership

14.4.1 The Public Protector, as the leader of the office, has the responsibility to drive the vision and mission of the organization. He must also make sure

that the vision is realised. When the current Public Protector,

Adv Mushwana took office in 2002, he created an open-door policy and promoted team-building initiatives. By becoming involved in most decisions that are taken at management level, he ensured that all staff were well informed about the functioning of the organization He has also exposed all staff to a variety of training courses such as conflict resolution, performance management, strategic planning and project management.

14.4.2 The management team at the office is responsible for co-ordinating and

managing the operations of the OPP. The management team consists of the Public Protector, the Deputy Public Protector, All Chief Directors, National and Provincial Directors. They make and take policy decisions and convey such information to all staff.

14.5 Strategic Planning and Work Organisation

14.5.1 Planning and implementation must involve the people to be affected by such procedures. In the past two years there have been a number of changes on the strategic planning processes. In 2004 the office completed its first strategic plan. In 2004 and 2005 two effective team-building workshops were conducted. In 2005 a performance management system was introduced, where performance agreements were signed with employees to ensure effective service delivery. In 2006 the office adopted a five-year strategic plan which is aimed at defining improved targets for the next five years.

14.5.2 The strategy focuses on:

Efficient and effective investigation

Corporate support services
Community and the Outreach Programme
Knowledge management and information technology

14.6 Protecting and Promoting the Integrity of the OPP

14.6.1 Section 7 of the Public Protector Act provides for the protection of the names of the complainants, where even a court cannot compel a party to reveal information. Staff is also contractually bound to treat crucial information confidentially. In terms of the code of conduct, employees are bound to act ethically, both in their individual relationships and in their relationship with others.

15 Does your institution have mechanisms in place to deal with internal conflict in your institution? If yes, what are these mechanisms and are they effective?

15.1 Grievance management

15.1.1 The Office of the Public Protector has a Grievance Policy in place to deal

with complaints and grievances. This policy ensures that grievances are dealt with in a fair and just manner. It complies with section 23(1) of the Constitution and the Labour Relations Act of 1995 which determines that everyone has the right to fair labour practices.

15.1.2 All complaints and all grievances are dealt with in terms of the grievance procedure provided for in this policy. The purpose of this procedure is to:

15.1.2.1 Create the opportunity for upward communication in a structured manner.

15.1.2.2 Ensure that management effectively deals with grievances.

15.1.2.3 Create awareness of common problems experienced at the workplace.

15.1.2.4 For the timeous resolution of complaints and to prevent disputes.

15.1.2.5 Emphasise the OPP’s concern for the well being of employees.

15.1.3 At a Strategic Meeting held on 12-15 December 2006 it was resolved that all policies of the OPP must be reviewed and consolidated into a single document during the 2007/8 financial year. The review is intended to improve shortcomings observed since these policies were adopted.

16 What mechanisms are in place for chief executive officers, Chairpersons and Commissioners to disclose and/or seek permission for private commercial / financial interests or involvement? Are such measures effective or sufficient to ensure transparency and avoid conflict of interest?

16.1 Financial disclosures

16.1.1 With regards to Financial Disclosures, the Office of the Public Protector does not have a specific policy guiding financial disclosures in the office. As a result, in the absence of an approved policy, the office follows the Public Service Act, Public Service Regulations and any other DPSA

guidelines concerning this matter. Currently, the Public Service Act, section 30, require Senior Management Staff (SMS), (level 13 or higher), to annually disclose all financial interests that they have outside the Office of the Public Protector. As a result, the office requires all SMS members to provide declarations of financial interests. All SMS members are currently required to submit declarations of financial interests.

16.1.2 Although it seems that the above two paragraphs contradict each other (the Public Protector Act prohibits remunerative employment but the office is still requesting declarations of financial interests) it is not so. Having a financial interest does not necessarily mean that you are engaged in

remunerative employment; e.g. owning shares in a public listed company would be a financial interest, but would not be remunerative employment.

16.1.3 With regards to employees that are not SMS members (level 12 and below), the Public Service Regulations prohibits them from having financial interests without obtaining prior approval from the Accounting Officer. Because of this requirement, financial disclosures are not required of them. The Public Protector Act provides the following in section 13:

“A member in the office of the Public Protector shall-

(b) serve in a full time capacity to the exclusion of any other duty or obligation arising out of any other employment or occupation or the holding of any other office: Provided that the committee may exempt a Deputy Public Protector ….from the provisions of this paragraph”

16.1.4 The Public Protector appointed a task team to explore the implications and the feasibility of amending the wording of the Public Protector Act to allow employees to conduct remunerative work outside of the Office of the Public Protector, at the Public Protector's discretion. This task is not yet finalised.

16.1.5 With regards to employees working in Supply Chain Management, the Code of Conduct for Supply Chain Management Practice requires all employees involved in the supply chain/procurement process to declare all

financial interests that they may have. This process is managed and maintained by the Manager: Supply Chain.

16.1.6 A Financial Disclosure Policy does exist for all Supply Chain Management role players. A disclosure policy for SMS members are currently being developed and will be drawn in terms of the same conditions as the policy that exists for supply chain role players.

D INTERACTION WITH THE PUBLIC

17 What was the intended relationship between your institution and the public? To what extent has this relationship been realised?

17.1 Constitutional Mandate

17.1.1 The mandate given to the Office of the Public Protector in terms of section 182 of the Constitution is to strengthen Constitutional Democracy. As a result the target audience for the duties and responsibilities of the OPP are those persons of the public who feel improperly prejudiced by conduct in the public administration in all spheres of government.

17.1.2 The Public Protector’s office supports the democratic rights enshrined in the Constitution and in addition ensures that these rights are extended to the poor and those who would not ordinarily have access to justice. This office has achieved this by creating an avenue through which the public can have recourse in terms of unfair or unjust administrative action. As a result the public is encouraged to submit complaints directly to the office

17.1.3 about organs of state and state officials, thereafter; an investigation is conducted into these complainants.

17.1.3 Further, investigations is not only limited to receipt of complaints from the community, but it also fulfils its constitutional mandate by conducting own initiative investigations and by identifying and investigating systemic deficiencies in the public administration and seeking solutions for these deficiencies. As part of its mission, the Office of the Public Protector offers guidance to people whose complaints fall outside the jurisdiction of the office by referring them to relevant agencies.

17.1.4 The submission of complaints by the public and the investigation thereof, ensures efficient, proper and fair administration and effective service delivery by all organs of state. This office can be said to be a watchdog over public administration and as such plays a big role in the prevention of abuse of power, thus guaranteeing an accountable and transparent government.

17.2 OUTREACH PROGRAMME

17.2.1 The Constitution provides that the Office of the Public Protector must be “accessible to all persons and communities”. In achieving its objective of being adequately accessible to all, this office has embarked on an Outreach Programme. The purpose of this programme is to empower those members of the public who live in marginalized areas by promoting an awareness of the organization, the nature of the services it renders and its location. In addition, it creates an awareness of the clinics conducted on a monthly basis in all nine (9) provinces.

17.2.2 The offices of the Public Protector were predominantly located in major cities and towns, making them inaccessible to poor people, especially

those in rural areas. As a result an effective outreach strategy was put in place to create a means of access to the Office of the Public Protector. Through donor funding, awareness campaigns were conducted in the various provinces at which the functions, jurisdiction and powers of the office were fully alluded to. Three visiting points or clinics were established in each province during this year at which workshops were conducted.

17.3 The Objectives of the Outreach Programme

17.3.1 To increase accessibility via:

17.3.1.1 An outreach strategy which is currently being finalised by a task team appointed by the Public Protector.

17.3.1.2 Clinics which were created in all 9 provinces.

17.3.1.3 Workshops at the regional office with the creation of two additional regional offices this year.

17.3.1.4 The Outreach programme runs 78 clinics around the country to inform the public about the Public Protector. This has resulted in an increase in the number of complaints to the office which does fall within the jurisdiction of the Office. There was also a decrease in the number of non-jurisdictional matters and this can be interpreted to mean that these awareness campaigns and clinics are effective in informing the

17.3.1.5 public about the role of the office. As a result it is perceived that the Office of the Public Protector is targeting its outreach programme with greater focus.

17.3.2 To increase public awareness via:

17.3.2.1 Information sessions with stakeholders, such as NGO’s CBO’s, etc

17.3.2.2 Information sessions in each province.

17.3.2.3 The community is made aware of the office and given a general awareness of the principles of democracy, that of, transparency, accountability, equality and economic freedom.

17.3.3 To develop communication strategies.

17.3.3.1 Communication Strategies are currently being developed in order to facilitate a smooth, timeous flow of accurate information to all internal and external stakeholders.

17.4 The CSAP Programme has enabled the OPP to appoint a further five Outreach Facilitators and an Executive Manager at the National Office to oversee all Outreach Programmes.

18. Does your institution have mechanisms in place to deal with complaints by the public about the work done by your institution or the failure to attend to issues?

18.1 Complaints against the office

18.1.1 This office has a specific mechanism in place to deal with complaints from the public against the office. In terms of this mechanism the executive managers are assigned with the task of dealing with such complaints. As a result it is only managers at senior level that are tasked with this duty which ensures that such complaints are resolved successfully and timeously.

18.1.2 This task was originally assigned to the Control Investigator: National Investigations, and appears as a duty on the job profile for this position. The relevant duty reads as follows:

. “To deal with complaints, relevant to investigations, against the office of the Public Protector".

18.1.3 As a result the Control Investigator is responsible for the complaints received against national investigations. With the recent creation and appointment of an Executive Manager: Provincial Coordination, all complaints about provincial investigations are now dealt with by this Manager.

18.2 THE PROCEDURE FOLLOWED

18.2.1 The following procedures are followed when dealing with a complaint:

18.2.1.1Complaints received are channelled to the Control Investigator or the Provincial Co-ordinator;

18.2.1.2 Complaints are recorded in a complaints file kept by the Control or Provincial Co-ordinator and a pending system is in place to ensure that complaints receive regular attention and are followed through;

18.2.1.3 The complaint is evaluated to see whether it can successfully be dealt with at senior manager level (Chief Investigators and Provincial Representatives), or whether it merits the attention of the Control or the Provincial Co-ordinator

18.2.1.4 If it can be dealt with at senior manager level, the complaint is referred to the relevant manager, and the complainant informed accordingly. The complainant is also invited to revert to the Control or the Provincial Co-ordinator should his or her complaint not be dealt with to his satisfaction;

18.2.1.5 If the complaint is to be dealt with by the Control or the Provincial Co-ordinator themselves, the matter is investigated, where necessary the problem addressed and the complainant informed accordingly;

18.2.1.6 Should the complainant still be unhappy about the outcome, the complainant is at liberty to approach the Public Protector in this regard, who will then give the complaint his personal attention;

18.2.1.7 As most complaints are sent directly to the Public Protector, the latter refers such complaints to the two officials and monitors them on regular basis.

18 . If you deal with public complaints, what mechanisms are in place

to deal with such complaints, to follow through on such complaints and to successfully resolve such complaints?

19.1 Complaints handling

19.1.1The Public Protector Act provides in section 6 that “any person can report a matter in respect of which the Public Protector has jurisdiction to the Office of the Public Protector”. Such a complaint can be lodged by telephone, fax, e-mail, and letter or by visiting one of the offices around the country.

19.1.2 In circumstances where the allegations concerned are of a very serious or sensitive nature or where the integrity of an official is at stake, the Public Protector may insist on an affidavit by the complainant or other witness.

19.1.3 The public is given clear guidelines as to what the contents of the complaint should include:

19.1.3.1 the nature of the matter in question;

19.1.3.2 the grounds on which the complainant feels that an investigation is necessary; and

19.1.3.3 all other relevant information known to him or her, including copies of all relevant documentation.

19.2 THE INVESTIGATION PROCESS

19.2.1 Upon receipt of a complaint, a case is registered on a computer database and a physical file is opened.

19.2.2 The complainant is informed by letter or fax that his/her or complaint was received and that the matter is being assessed to establish whether the law allows the Public Protector to investigate it.

19.2.3 The complainant is assured that one of the investigator’s at the office will contact him/her.

19.2.4 At the National Office the two Chief Investigators meet on a weekly basis to decide which one of the two groups of investigators at the National

Office or which of the Regional Offices would have to investigate these matters.

19.2.5 The cases will be allocated to a group based on the subject of investigations and different government agencies.

19.2.6 Each Chief Investigator, Provincial and Regional Representative, will decide to which Senior Investigator or investigator in his/her group or office the investigation will be assigned.

19.2.7 In cases where the Public Protector does not have jurisdiction, the complainant is informed accordingly and he/she is advised of the correct institution to approach.

19.2.8 Where the complainant, in the discretion of the Public Protector, should rather be referred to another institution, like the Auditor-General or the Police, the complaint is forwarded to such institution and the complainant informed accordingly.

19.2.9 Where the Public Protector does have jurisdiction, a preliminary investigation is conducted to establish the merits of the complaint, allegation or information and the manner in which the matter should be dealt with.

19.2.10 The preliminary investigation consists of making enquiries by means of

correspondences, the telephones, meetings with officials, witnesses,

informants and complainant’s.

19.2.11 Often, complaints are resolved during this process, simply because the government agency complained against is informed of the allegation and the matter is addressed.

19.2.12 In matters where the complaint is without merit, detailed information is provided by the government agency concerned and the complainant is advised accordingly.

19.2.13 When a complaint is not resolved during the preliminary process, the Public Protector can endeavour to resolve it by means of mediation, conciliation or negotiation.

19.2.14 He/she can also hold a formal hearing on the matter; summons any person to appear before him/her to submit evidence on the case concerned or to provide relevant documentation. Such person can be assisted by an attorney or advocate.

19.2.15 During an investigation, both sides of every complaint are heard before the Public Protector takes any decision pertaining to an allegation of improper conduct. If, during the course of an investigation, it appears to the Public Protector that a person is being implicated in the matter being investigated and that such implication may be to the detriment of that person or that an adverse finding pertaining to that person may result, the Public Protector shall afford such person an opportunity to respond in connection therewith, in any manner that may be expedient in the circumstances.

19.2.16 Section 7A of the Act makes provision for the Public Protector or a

person authorised by him, is competent to enter, to enter, any building or premises and there to make such investigation as he/she and to seize

anything on those premises which, in his or her opinion has a bearing on the investigation. The premises can however, only be entered by virtue of a warrant issued by a magistrate or a judge.

19.3 RECOMMENDATIONS AND REPORTING

19.3.1 Upon conclusion of an investigation, the Public Protector can make appropriate recommendations to the government agency concerned on how the matter in question should be addressed and a recurrence be prevented. In terms of the Act, the Public Protector will submit a report to the National Assembly on the findings of a particular investigation if he deems it necessary, and or in the public interest or if it requires the urgent attention or intervention of the National Assembly or where the Public Protector is requested to do so by the Speaker of the National Assembly or by the Chairperson of the National Council of Provinces.

19.3.2 The Public Protector is obliged by the provisions of the Constitution to report to the National Assembly on the activities of his office annually. All reports to the National Assembly must also be submitted to the National Council of Provinces.

19.3.3 At the end of every investigation the complainant is informed of its outcome and is provided with a copy of the report by the Public Protector, where appropriate. Any person implicated by the findings of the report is also informed accordingly.

19.3.4 The Public Protector keeps track of all the recommendation made by him/her to ensure that it is properly implemented.

19.3.5 In order to ensure that qualitative reports are issued, all reports of investigations intended for tabling in Parliament, Legislature, Executive

Authorities and Municipalities, are debated before a Think Tank Committee Meeting. The Think Tank is chaired by the Public Protector and is attended by the Deputy Public Protector and all Chief Investigators dealing with investigations as well as all Provincial Representatives.

19.3.6 A Specialised Investigation Unit headed by a Chief Director has been established at the National Office. The Unit is intended to deal with all high profile and confidential matters as well as more complex and urgent matters. This is to ensure that all sensitive information on these matters is not leaked before such matters are concluded. The Public Protector directly supervises these investigations.

21. Please provide detailed information of the remuneration packages for office-bearers and Commissioners.

21.1 Public Protector

Cash Salary	R 670,270.00
Medical Aid	R 10,152.00
Entertain Allowance	R 7,000.00
Settlement Allowance	R 67,200.00
Non Pension Allowance	R 3,500.00
Total	R 758 122.00

21.1.1 The Public Protector receives remuneration that is in line with that prescribed for an appeal court judge as contained in the Judges Remuneration and Conditions of Employment Act.. The Public Protector is therefore entitled to the following benefits:

(a) A motor car paid for by the State, which is replaced the sooner of every four (4) years or when 160,000 km’s is reached,

(b) A gratuity on termination of his employment. Please note this gratuity is not calculated using the basis prescribed by the Judges Conditions and Remuneration Act, as the gratuity calculated in terms of that Act discriminates against judges in service for less than 15 years, or who retire/terminate their employment before attaining the age of seventy (70). As the Public Protector cannot serve a term longer than seven (7) years, a formulae to calculate a gratuity that is in line with that received

by a constitutional court judge has been developed and approved by the Judicial Services Commission.

21.2 Deputy Public Protector

21.2.1 The Deputy Public Protector receives remuneration in line with that of a Chief Director in Public Service (Level 14), with no additional benefits. The remuneration is as follows:

Cash Salary	R 371,660.00
Annual Bonus	R 30,972.00
Pension Allowance	R 55,749.00
Travel Allowance	R 120,000.00
Housing Allowance	R 41,053.00
Total	R 619 434.00

22. Please illustrate the budget process followed by your institution,

including the process of allocation of funds.

22.1 The budgeting process begins by taking the constitutional mandate of the Office of the Public Protector (OPP) and translating it into a vision, mission for the OPP. Using this vision and mission as a starting point, a three year strategic plan is prepared, mapping out the strategic objectives and operational outputs that the OPP wants to achieve over the next three years. This three year strategic plan is used to prepare an annual plan detailing the activities required to achieve the strategic objectives and

operational outputs contained in the three year strategic plan. The annual plan is therefore the framework guiding the operations of the OPP in achieving its strategic objectives and operational outputs, thereby realizing its vision and mission and fulfilling its constitutional mandate.

22.2 Directed by the Public Finance Management Act (PFMA) and relevant National Treasury guidelines, this annual plan is used to prepare a budget that is reflective of the resources required by the OPP in achieving the activities set out in the annual plan.

22.3 There are various different budgeting models that can be used to cost activities and project expenditure. The budget for the OPP has been prepared using a combination of the historical cost based budgeting model and the zero-based budgeting model.

22.4 Under a historical cost based budgeting model, historical spending levels are adjusted for inflation and for abnormal activities (both past and future abnormal activities) based on inputs from managers, economic conditions, etc., which is then used to project expenditure and prepare the budget. The historical cost based budgeting model operates on the basis that the usage of resources for similar activities remains consistent from year to year.

22.5 Using a zero-based budgeting model, operations are analysed and inputs from the different units are used to determine all the activities that would be performed and the expected resources that would be required to achieve those activities. Costs are then estimated (based on standard costs) for these activities to arrive at a budgeted figure.

22.6 The strategic objectives and operational outputs contained in the three year strategic plan and the annual plan have been split based on the operations of the OPP. This has necessitated that the budget be prepared, based on divisional budgeting principles whereby the operations of the OPP have been divided into different business units, based on both the function as well as geographic location of each business unit.

22.7 Budgets for the different activities have been allocated to business units on the basis of responsibility for the associated activity.

22.8 There are limitations in this approach of allocating budgets on the basis of responsibilities. For example, the budget and the associated expenditure for office rental/accommodation has been allocated to the administration business unit, as the management of office rental/accommodation is the responsibility of the administration business unit, even though almost 99% of these costs relate to the other centres within the OPP (based on the number of employees involved in the administration business unit in comparison to the total employee complement of the OPP).

22.9 This budget and other relevant inputs are submitted to the Department of Justice and Constitutional Development (DOJ), where it is consolidated with information from other constitutional institutions and public entities reporting to the DOJ. This consolidated information from all the constitutional institutions and public entities within the Justice Cluster is reported as a separate programme (at present, programme 5) in the DOJ budget.

22.10 The budget of the Office of the Public Protector is channelled through the Department of Justice and Constitutional Development. The Minister of

Justice and Constitutional Development presents the budget of the Office of the Public Protector before the relevant committee responsible for the allocation of budgets to the various state departments and institutions. The Public Protector does not sit on such a committee and is dependent on the said Minister.

23. Are the current budgetary and administrative arrangements sufficient to ensure autonomy of Chapter 9 institutions?

23.1 As stated in 22.10 above, the budget of the Office of the Public Protector is channelled through the Department of Justice and Constitutional Development.

23.2 In this context the said Minister may be viewed as the “political head” of the Office of the Public Protector, which is contrary to the Constitution and the Public Protector Act.

23.3 In this regard it is noteworthy that the Department of Justice and Constitutional Development established a Directorate on Chapter 9 institutions to strengthen the relationship between the Office of the Public Protector and the Department. The Deputy Minister of Justice and Constitutional Affairs has also been delegated the functions pertaining Chapter 9 institutions.

23.4 The Principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles), annexed to General Assembly resolution 48/134 of 20 December 1993[30], require that

“the national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and

premises, in order to be independent of the Government and not be subject to financial control which might affect its independence.”

23.5 The current budgetary and administrative arrangements funding of Office

Of the Public Protector through the Department of Justice may be a constraint in as far as the Office of the Public Protector is unable to motivate for its full budget without having the Minister of the Department of Justice do so on its behalf. Functional independence also involves adequate budget allocations and staffing.

23.6 Although the OPP has not encountered real funding difficulties in this

regard, international experience has shown that if the Executive wants to curb an Ombudsman office, the most effective way to do it, short of repealing the legislation, is to starve the office of resources.

23.7 Furthermore the current budgetary process, as indicated above, requires

careful advanced planning in predicting/projecting the OPP’s requirements. Due to the spontaneous nature of complaints to the Public Protector, no matter how much care, skill and detail is used in the

budgeting process, an accurate prediction of the number, nature, type and specifics of the complaints received, and the actions required to successfully resolve a complaint, cannot be done. As a result, deviations in the number, nature, type, etc of investigations from that projected/predicted (as was the case for the 2005/06 financial year) results in financial constraints being placed on the OPP.

24. To what extent are the resources allocated to your institution

directly spent on meeting its key responsibilities?

24.1 The financial management policies and processes in place are designed to ensure that all expenditure incurred by the OPP is spent on meeting the key responsibilities of the OPP.

24.2 With regards to a determination of the resources spent by the OPP on the core function of the OPP as opposed to the resources spent on support services the OPP has begun a divisional budgeting process (as indicated in the point 3) to facilitate the preparation of accurate information to answer this question. However, as this is the first year in which the divisional budgeting process has been implemented at the OPP, and as there still remains unresolved problems (also indicated in point 3) with regards to this process, accurate information to answer this question cannot be provided.

24.3 However, an estimate, based on the number of employees involved in the core function of the OPP in comparison to the total employee complement of the OPP is detailed in the table below, and provides a reasonable indication of the extent of the resources directly spent on the core function of the OPP:

	2001/02	2002/03	2003/04	2004/05	2005/06	2006/07
	R’000	R’000	R’000	R’000	R’000	R’000
No. of employees involved in key responsibilities	65	80	90	101	99	107
Total employee complement	121	144	177	174	195	201
% employees involved in key responsibilities	54%	56%	51%	58%	51%	53%
Resources Spent	29,163	38,797	44,126	55,727	58,899	68,564
Estimated resources spent of addressing key responsibilities	15,748	21,726	22,504	32,322	30,038	36,339

25. Please tabulate the full staff complement of your institution,

including all executive and non-executive staff. Please separate

staff in the head office from regional offices, where applicable.

Office/ Province	xecutive Staff	Non Executive Staff		Total
		Investigative staff	Admin & support
National Office	2	30	48	80
Eastern Cape		7	5	12
Free State		7	4	11
Gauteng		2	2	4
Kwa Zulu Natal		8	5	13
Limpopo		6	5	11
Mpumalanga		6	5	11
Northern Cape		4	3	7
North West		15	18	33
Western Cape		8	5	13
Total	2	93	100	195

25.2 It must be stated that since 2002, the OPP has never been in a position to fill all posts required in each year and as reflected in various organizational structures including the current one that is being reviewed. For instance, the key post of Chief Executive Officer is still not filled, and has not been filled in the past two years due to financial constraints. A request for funding for this post has been submitted to Treasury.

Adv M L MUSHWANA

Public Protector: South Africa.

2^nd January 2007.

[11] Section 182(2). See paragraphs 1.4 and 1.5 below

[24] Section 2 of the Special Investigating Units and Special Tribunals Act, 1996

[30] National institutions for the promotion and protection of human rights: Commission on Human Rights resolution 2003/76 at http://www.unhchr.ch/Huridocda/Huridoca.nsf/ Symbol)/E.CN.4.RES.2003.76.En?Opendocument

	Actual 2001/02		Actual 2002/03		Actual 2003/04		Actual 2004/05		Actual 2005/06		Budgeted 2006/07
	R’000		R’000		R’000		R’000		R’000		R’000
Budget Allocation	29,371		35,135		43,519		49,160		55,127		67,784
Additional Funding:
- Interest Received/Projected	1,316		1,574		1,099		903		628		780
- Donor Funds	159		219		-		-		-		-
- Additional Allocation from DOJ	-		-		-		-		3,500		-
- Other	-		-		10		-		3		-
Total Revenue	30,846		36,928		44,628		50,063		59,258		68,564
		Actual 2001/02		Actual 2002/03		Actual 2003/04		Actual 2004/05		Actual 2005/06		Budgeted 2006/07
		R’000		R’000		R’000		R’000		R’000		R’000

Expenditure per audited/projected Income Statement	28,273	36,880	42,001	53,201	58,230	67,264
Less: Non-cash items
- Depreciation	-34	-775	1,040	-716	-1,067	-
Add: Expenditure not included in the income statement (but is budgeted for and funded by appropriated funds)
- Capital Expenditure	924	2,692	1,085	3,242	1,736	1,300
Total Expenditure	29,163	38,797	44,126	55,727	58,899	68,564

B. RELATIONSHIPS WITH OTHER BODIES

E. Financial and other resource matters