PROGRESS REPORT: REPORT OF THE AD
HOC COMMITTEE OFFICE OF THE PUBLIC PROTECTOR.
1. INTRODUCTION
The ad hoc committee made
recommendations in paragraph 8 of its report and we report progress in the
following paragraphs. The paragraphs that are referred to are those of the
report of the ad hoc committee.
2. AD
PARAGRAPH 8.1
COMMUNICATION OF COMPLAINTS TO OTHER
DEPARTMENTS.
While communication between the
Office of the Public Protector (OPP) and the Department of Justice still
continues, such communication is purely operational and in line with the
execution of our mandate, for instance when it comes to budgetary matters the
executive authority referred to in the PFMA is the Minister of Justice. Our
budget is a vote in the Department of Justice. This particular matter is beyond
the competence of the Public Protector.
However, although the independence
of the Public Protector is adequately safeguarded by the Constitution and the
National Legislation, “the lines of authority and accountability with other
state organs” to which the Public Protector has jurisdiction to scrutinise
threatens the independence and integrity of the office of the Public
Protector. Treasury still holds internal
top-down supervisory function to our office in relation to finances, and the
Department of Justice reins in budgetary matters as well as remunerations,
terms and conditions of appointment of the Public Protector.
Whilst the Deputy Public Protector’s
remuneration, terms and conditions of appointment is dependent on what is
maintained in the Public Service.
This loathsome arrangement
frustrates not only the Public Protector’s and his Deputy’s personal
independence, but it also corrodes the OPP’s effective functional, operational
and financial independence and dispirits institutional independence which are
necessary features of the concepts of ombudsman [Public Protector] as required
by the Paris Principles.
There is nothing legal or practical that can
prevent Parliament to devise mechanisms and measures that can ensure the exercises
of checks and balances without encroaching on the independence of the Public
Protector.
The budget of the Public protector is
a vote in the budget of the Minister of Justice, which means that constraints
could be imposed on the expenditure of appropriated funds. The PP is excluded
from the determination of the budget overall make-up and composition leaving
the Public Protector’s budget entirely in the hands of the government. And such activities opens door for interference
by state organs as it happened when the Minister of Justice acted without
consulting the PP advised the Treasury to refuse to upgrade the post of the Ceo
despite the fact that legislation permits the PP to appoint his own staff.
In future, legislation may be
amended to guarantee financial independence of the Public Protector in the
manner suggested above.
National Assembly must enable
Parliament through a Committee to recommend the annual Budget of the office of
the Public Protector allocations.
If the budget of the Public
Protector [and other similar institutions] becomes part of Parliamentary
appropriation or a separate appropriation, a much higher level of independence
from the executive is demonstrated. the public protector’s office will be clearly
seen as external than if its budget is part of the general appropriation or
forms part of the budget for a Minister of Justice‘s portfolio as is the case
at the moment.
Interaction with
state organs in instances mentioned above, instead of directly with the
National Assembly in all matters affecting the Public Protector generates
interference with operations and functions of the Public Protector and subjects
the Public Protector to government administrative controls and such is
prohibited by the Constitution.
Legislation[Public Protector’s Act)
may also be amended to mandate consultation with a parliamentary Committee
instead of consultation with a Minister of Finance so as to further safeguard
the independence of the Public Protector’s office.
The following will serve as further
examples of the ambivalent situation the PP and the DPP find themselves in:
SALARY
NEGOTIATIONS.
The PP receives information of his
salary increases through the Department of Justice. How this process can be
changed is beyond our means and speaker will accordingly be approached to
address this matter.
The recent report of The Independent
Commission for the Remuneration of Public Office Bearers (THE Commission) which
deals with salaries of Public Office Bearers, including that of judges, does
not at all refer to the Public Protector (PP) as one of the Public Office
Bearers. The salary of the PP is bench marked against that of a judge of
appeal. Our office was not at all consulted like other Office Bearers and
obviously the decision of the Commission, once endorsed by the President will
bind the PP. The entire exercise impinges on the independence of the Office of
the Public Protector (OPP) as an institution, the independence of the PP as an
individual and of course the functional independence of the OPP
The fact that the conditions of
service of the DPP is dependent on what maintains in the Public Service does
render her independence from other departments somewhat impossible to say the
least.
We therefore confirm that we have
since stopped communicating any of our problems to The Justice Department or to
any other departments; in fact, there has been no problem that required the
attention of the Speaker of the National Assembly or the Justice Portfolio
Committee.
3. AD PARAGRAPH
8.2
LINE OF AUTHORITY AND
ACCOUNTABILITY.
The lines of authority between the
Public Protector (PP) and the Deputy Public Protector (DPP) are being observed,
and we confirm that there exist between us, an amicable and friendly working
relationship. Admittedly we delayed in agreeing on the powers and functions to
be delegated to the DPP. This was partly because we immediately engaged
ourselves in the process of appointing the Chief Executive Office (Ceo) whom we
have since appointed as set out below. We have finally agreed on the powers and
functions to be delegated to the DPP. A copy of the delegation of powers and
functions to the DPP is attached herewith for your information.
4. AD
PARAGRAPH 8,3
DELEGATION OF POWERS.
As stated above a copy of a delegation
of powers and functions to the DPP is attached herewith for your attention. We
made some comparative studies with other institutions and departments where a
provision is also made for a deputy in order to learn from their possible
experience on how such a delegation should be made and as to what exactly
should be contained in such a delegation.
Our observation was that there are
no written delegations of powers and functions in the case of Deputy Ministers,
Deputy President, Deputy Chief Justice Etc, probably because there is no
provision similar to ours. It is also understandable that there is no such
provision because reducing delegation of executive powers into writing is not
at all easy, as the exercise of such powers sometimes occurs on ad hoc basis
and are varied and sometimes unpredictable. The situation is compounded where there
is a Ceo or a Director-General who performs almost all administrative related
functions.
A Ceo has been appointed for the OPP
and he resumed duties on
This being the first time that a DPP
is appointed in our office we can only hope and trust that in due course the
contents of the attach delegation of powers will be improved.
5. AD
PARAGRAPH 8.4.
MENTORING.
Since the ad hoc committee clarified
and reaffirmed our respective roles the DPP has been performing all tasks
allocated to her diligently and she also displayed the necessary skills and
expertise in the performance of such duties. She did not seem to require any
extensive mentoring, although she performed many of those duties, some of which
are contained in the attached delegation of powers and functions, under my
direct supervision.
What indeed emerged was that she
required sufficient orientation period which was lacking because relations soured
at a very early stage of her assumption of employment.
We will continue to work together as
we have been doing since the issue of the report of the ad hoc committee.
We confirm that there are no
operational problems of any form that requires any form on intervention by the
authorities concerned.
6. AD
PARAGRAPH 8.5
HOLDING OF REGULAR MEETINGS.
We have been and continue to meet
regularly and as and when there is a need to deal with operational matters of
the office.
7. AD
PARAGRAPH 8.6
COMMUNICATIONS
As and when a need arises the PP
will communicate through the Speaker as advised by the committee. A senior
communications manager has been appointed and he handles all communications
matters in the OPP.
8. AD
PARAGRAPH 8.7
EMPLOYMENT OF SENIOR STAFF
The following senior officials have
been appointed since our last appearance before the Committee:
(a) Chief Executive Officer.
(b) Senior Human Resources Manager.
© Deputy Human Resources Manage.
(d) Senior Communications Manager.
(e) Senior IT Manager.
(f) Finance Manager.
Both the PP and the DPP were
involved in the final appointment of the Ceo and the Senior IT Managers. A
service provider was engaged in the initial stages of the appointment processes
and we made the final interviews and appointments. Both of these candidates
were vetted by the National Intelligence Agency and were cleared and
recommended for appointment.
The post of the Senior
Administration Officer who has since left the office has not been filled as all
the functions that he was performing are those of a Ceo and is and will
continue to be performed by him. Our Act is being amended to make provision for
a Ceo and to abolish the redundant post of Senior Administration Officer.
9. AD
PARAGRAPH 8.8
INTERNAL TRANSFER STRATEGY
A document to amend the OPP
employment policy in particular with regards to internal transfers,
advertisements of posts and promotions has been drafted and is being circulated
for deliberations and debate by the OPP staff. A copy of the draft is attached
herewith for your information. Once the necessary consultative process is
completed the suggested amendments will be adopted by the Management Committee
of the OPP.
10. AD
PARAGRAPH 8.9
EMPLOYMENT RETETION STRATEGY
The process of the formulation of
retention strategy is ongoing. The office has adopted a remuneration strategy
with the assistance of a service provider. The remuneration strategy provides
for the evaluation of all post in the OPP. This process is nearing an end and
should be completed in the next two months. The process of the formulation of a
remuneration strategy and in particular job evaluation has been long and
daunting. The retention strategy is inherent in the final adoption of the remuneration
strategy and the completion of job evaluation. The retention strategy can
therefore be finalised once the above processes shall have been completed.
The DPP and the Human Resource
Manager participated in a workshop convened by the Public Service Commission to
brainstorm guide lines for the formulation and contents of an Employment
Retention Strategy and we learned valuable lessons that we will use in the
formulation of our strategy.
11. AD PARAGRAPH
10
CHANNELS OF COMMUNICATION.
We confirm that if a need arises,
the PP will communicate through the Speaker of the National Assembly.
12. AD
PARAGRAPH 11
CONDITIONS
OF SERVICE AS FORMULATED BY THE JUSTICE PRTFOLIO COMMITTEE
We are observing the recommendation
and the DPP applies her leave to the PP and reports to the PP.
12. CONCLUSION.
The appointment of the above senior
officials and in particular the Ceo, the OPP is fully operational and
functional more than ever before and we continue to be stronger and stronger by
the day.
We take this opportunity to thank
the Speaker of the National Assembly and the ad hoc committee for their timeous
intervention and guidance that they proffered.
Adv. Mabedle
Public Protector RSA Deputy
Public Protector RSA.