Report of the Portfolio Committee on
Justice and Constitutional Development on the 2006/07 Annual Report of the
Office of the Public Protector, dated 19 February 2009
The Portfolio Committee on Justice and Constitutional
Development, having considered the 2006/07 Annual Report of the Office of the
Public Protector, reports as follows:
1.
Introduction
1.1.
The
Committee was briefed on the 2006/07 annual report of the Office of the Public
Protector (OPP) on 19 February 2008.
1.2.
Those
who appeared before the Committee for the briefing included: Mr Z Docrat; Ms K Masiba; Ms P Mogaladi; Adv ML Mushwana; Ms S Thoke; and Adv M Shai.
1.3.
This
Report should be seen against the background of a very busy and somewhat
shortened parliamentary year. The Committee has had to be realistic about what
it can accomplish in terms of oversight in the time it has available to it
before Parliament rises.
1.4.
Our
main concern is to assess how the OPP has performed, especially when measured
against its Strategic Plan and the specific targets it set for itself for the
2006/07 financial year under review.
1.5.
The
approach of this report is to first give a brief summary of the OPP‘s presentations to the Committee and then to offer our
response to them in section 7 of this
report.
2.
Overview by Public Protector,
Advocate
2.1.
The
Public Protector, Advocate Lawrence Mushwana,
provided an overview of the Office’s activities and performance for 2006/07.
2.2.
The
Office of the Public Protector (OPP) was established by the Constitution as a
state institution supporting democracy to ensure government’s accountability
and to provide remedies for maladministration and
abuse of authority. In order to do this, the Public Protector is empowered to investigate, report on, and suggest remedial action for a
wide range of wrongdoings in the public administration.
2.3.
The
OPP consists of a national office, together with 9 provincial offices. In
addition, there are regional offices in the
2.4.
The
Public Protector highlighted certain achievements in the 2006/07 year under
review:
·
The recruitment and appointment of managers to key
positions. Of particular significance was the appointment of the Chief
Executive Officer (CEO) on 1 April 2007, as the Office had been without a CEO
for approximately two years.
·
73 clinics and 167 information sessions were conducted as
part of the OPP’s outreach programme, the purpose of
which was to increase accessibility to and public awareness of the Public
Protector.
·
The OPP participated in a ‘landscaping survey’ conducted by
the European Union (EU) through the Civil Society Advocacy Programme (CSAP).
The study resulted in a number of valuable recommendations, which the OPP is
implementing with the European Union’s financial assistance.
2.5.
The
Public Protector also mentioned various challenges that the OPP has been faced
with in the 2006/07 year under review:
·
There were difficulties in filling critical posts, including
those of the Chief Executive Officer, Chief Financial Officer; the Senior
Manager: Information Technology; the Senior Manager: Human Resources; the
Senior Manager: Provincial Co-ordination; the Senior Manager: Communications
and the Senior Manager: Administration. While most of these posts have since
been filled, the vacancies nevertheless impacted on the OPP’s
ability to achieve its strategic objectives for 2006/07. This is particularly
evident in the performance of Programme 4: Knowledge Management and
Communications and Information Technology.
·
As a result of problems with its information communications
technology, the Public Protector lacks an electronic system to manage its
cases. This has meant that statistics are compiled manually, which not only
makes the collation of statistics time consuming but also makes tracking the
progress of cases difficult. While external auditors have been appointed to
verify these manually compiled statistics, the underlying problem experienced
with SITA that led to there being no computerised system remains unresolved.
·
Although there is some collaboration, ensuring systems for
effective collaboration and co-operation with the other Chapter 9 institutions
remains a challenge.
·
Making the OPP more accessible, especially in remote areas,
is yet another challenge.
·
There is a need to increase public awareness of the Public
Protector’s work.
3.
Programme Performance
3.1.
The Office of the Public Protector has 4 programmes:
·
Investigations and Reporting;
·
Communication Services;
·
Corporate Support Services; and
·
Knowledge Management and Information Technology.
3.2.
The Investigations and Reporting programme, conducts
national, special and provincial investigations. Key achievements for this
programme in the 2006/07 year under review include:
·
A total of 12 629 new cases were received in 2006/07,
although this is less than the 17 415 cases received in 2005/06. Of the cases
received in 2006/07, 2 781 fell outside the jurisdiction of the Public
Protector. 13 434 cases were finalised
in 2006/07 compared to 17 619 in 2005/6.
·
In 2006/07, 8 systemic and 22 own initiative investigations
were conducted, of which 9 were finalised.
·
95% of cases were finalised in the targeted turnaround time
of 2 years.
·
The Executive Manager: Provincial Co-ordination was
appointed to improve the effective and efficient co-ordination of provincial
offices.
3.3.
The Communications programme has 2 sub-programmes: Outreach,
and Marketing and Communications. The programme’s overall objective is to
improve internal and external communication and to encourage a common vision
and improved profile for the Office of the Public Protector. Selected
achievements for the 2006/07 year under review include:
·
An outreach strategy was adopted and an Outreach
Co-ordinator and 5 facilitators were appointed by the Civil Society Advocacy
Programme (CSAP) to assist the Office to implement this strategy.
·
73 clinics were conducted, and flowing from these clinics 1
852 complaints were lodged.
·
167 information sessions were conducted in order to increase
public awareness, far exceeding the target of 5 information sessions per
province.
·
On the issue of collaboration with other Chapter 9 bodies,
although a collaboration plan has not been achieved, areas for collaboration
have been identified with the assistance of the CSAP.
·
A communications and marketing strategy was developed to
improve communication and flow of information to stakeholders.
3.4.
The
Corporate Support Services programme has 4 sub-programmes: Human Resource Management; Finance and Supply
Chain; Administration and Support; and Security Management. This programme aims to achieve and sustain an efficient and
effective corporate support programme. Selected achievements
for the 2006/07 year under review include:
·
A
draft retention strategy was developed, while the implementation of the
remuneration strategy is ongoing and is expected to be finalised
during 2007/08.
·
A
costing model for investigations was partially developed, in that levels of
complexity for cases received have been defined and key variables have been
identified to be included in a costing model.
·
A
divisional budgeting model has been developed and budget guidelines prepared.
Also, the OPP’s accounting system is able to produce
budget monitoring reports for each business unit.
·
A
Security Management Unit was established and needs analysis conducted for 7 of
the OPP’s 9 offices.
3.5.
The
Knowledge Management and Information Technology programme,
was unable to fill the post of Knowledge and Research Manager and,
consequently, was unable to meet most of its targets for the year under review.
It did, however, report the establishment of an African Ombudsman Resource Centre at the
4.
Corporate Services
4.1.
The Office of the Public Protector has 238 posts, of which
205 were filled on 31 March 2007. There were also 6 additional posts. These are
posts funded by the European Union through the Civil Advocacy Support Programme
starting from 1 January 2007 to allow the OPP to expand its Outreach programme.
4.2.
With regard to employment equity, 42% of the OPP’s employees are African males, 21% African females, 21%
White males, 8% White females, 4% Coloured males and 4% Indian males. These
percentages remain the same in terms of senior management. The OPP’s staff comprises 71% males
and 29% females.
4.3.
The average vacancy rate for the OPP is 13.9%, while its
turnover rate is 17.1%, the majority (88%) of which are resignations.
5.
Financial Matters
5.1.
The Public Protector receives its budget allocation in the
form of a direct transfer from the Department of Justice and Constitutional
Development. In 2006/07, the Public Protector received R62.9 million in total
revenue in 2006/07, while total expenditure was R62.4 million.
5.2.
For the fifth consecutive year, the Auditor General gave an
unqualified audit opinion with no matters of emphasis.
6.
Way Forward and Selected
Challenges Identified in the Year Ahead: 2007/08
6.1.
The OPP identified two aspects to its strategic framework
for 2007/08 - organisational and operational. The organisational framework
identifies the need for the OPP to remain lean, professional and to be able to
expand or contract its staff complement according to its caseload. The use of
database of contractors is envisaged. The operational framework identifies 3
focus areas:
·
A thematic approach where specific themes are identified for
the year.
·
A project approach is aimed towards ensuring a more
professional approach to investigations. Each investigation will be project
managed (requiring a project charter, timeframes, budget lines and clear
strategies). This approach also intends that cases are finalised within a year.
Cases that take longer than a year to finalise will require special approval.
·
A mobile office to make the OPP more accessible.
6.2.
The strategic goals identified for 2007/08 are as follows:
·
Programme 1: Investigation and Reporting. The focus is on
improving Service Delivery Indicators (SDIs). The
costing of investigative activities remains a challenge and is a priority for
2007/08.
·
Programme 2: Executive Management. This is a new programme
focusing on strategic management, marketing and communications
·
Programme 3: Outreach Programme. This is to be a separate
programme that mainly uses the CSAP budget. An outreach co-ordinator was
appointed to take charge of implementation of the strategy defined in 2006/07.
·
Programme 4: Corporate Services. Policies and procedures
that have been developed must be implemented.
6.3.
Selected key challenges or constraints identified for
2007/08 include:
·
Despite the fact that the OPP’s
receives its budget as a transfer from the Department of Justice and
Constitutional Development, the mere fact that its budget falls within the Department’s
budget allocation creates the perception that the OPP is not independent.
·
The OPP continues to be reliant on SITA for its information
technology needs despite ongoing problems with the services offered by SITA.
·
The term of the present Public Protector is to come to an
end at the end of November 2009. In order to ensure continuity and the smooth
transfer of knowledge, it is preferable that the appointment process is
initiated and completed well in advance of the expiry date and that Parliament
plays its role in ensuring that this happens.
7.
Committee’s Response
7.1.
The Committee commends the Public Protector for having
received an unqualified audit opinion from the Auditor General with no matters
of emphasis for five consecutive years.
7.2.
The OPP’s
initiative to increase public awareness of its services is welcome, but the
Committee feels more needs to be done.
The OPP reported hosting 167 workshops and holding 73 clinics. The mere
fact that these workshops and clinics were held speaks only to the OPP’s outputs and says little regarding the intended
outcome, which is increased public awareness. The Committee suggests that the
OPP revisit the measures by which it evaluates the effectiveness of its
outreach programmes. Furthermore, the Committee notes that the need to increase
public awareness was also raised as a concern by the Ad Hoc Committee on
Operational Problems in the Office of the Public Protector, which found that
the OPP needed an effective communication strategy to allow it to keep the
public adequately informed of its work and progress with cases. It is pleasing
that a communication strategy has been developed to improve communication with
and the flow of information to stakeholders. But the Committee is unable to
tell what its effective outcome has been. The flow of internal communications
was also a matter of concern to the Ad Hoc Committee and the Committee urges
that the OPP finalise an internal communication strategy.
7.3.
While the various Chapter 9 and associated institutions have
distinct mandates, it is important that they use available resources as
advantageously as possible, and a strong argument exists in favour of greater
and more structured collaboration. Not only can this assist in facilitating a
seamless approach to complaints handling, it creates the potential for joint
public awareness campaigns, human rights advocacy and training campaigns, etc.
While the Committee is pleased to hear that there has been some progress in
ensuring collaboration, albeit mostly informal, between the relevant
institutions, it nonetheless believes that a great deal more can be achieved in
this regard. Obviously, the responsibility to ensure co-operation and
collaboration is that of all the Chapter 9 and related institutions, not only
the OPP. It has raised this matter with all the relevant institutions that
account to it, and will monitor this carefully.
7.4.
The Committee finds it
completely unacceptable that the OPP compiles its statistics manually. While an
explanation was given for this longstanding problem, the Committee found the OPP’s answer unconvincing, and expects the problems to be
solved by the time the OPP presents its next Annual Report to the Committee.
7.5.
The Committee finds the OPP’s
statistics relating to the receipt and finalisation of cases for 2006/07 to be
incomplete: in previous years, the Public Protector provided the number of
cases carried forward, but in 2006/07 only the cases received, finalised, and
non jurisdictional cases were reported on. The Committee was able to deduce
from previous years that the number of cases carried
forward appears to hover around 12 000 to 13 000. It would have been preferable
for this information be included in the 2006/07 Annual Report. The Committee
does not understand why this did not happen as in previous years, as details of the number of
backlog cases, and cases carried forward would have provided the Committee with
greater clarity as to the OPP’s capacity to deal with
its caseload.
7.6.
The Committee finds it
interesting that the number of new cases has dropped from 22 350 in 2004/05 to
12 629 on 2006/07. It is encouraging that the number of cases finalised has
increased overall from 7 539 in 2004/05 to 13 434 in 2006/07, although this is
a significant decline from 2005/06 where 17 619 cases were finalised. The
Committee would be interested in why the fluctuation in the number of cases
received and finalised occurred.
7.7.
The Committee welcomes the OPP’s attempts to reduce the time it takes to finalise its
cases. This is important not only for the sake of the individual concerned, but
also as a means of increasing public confidence in the efficiency and
effectiveness of the Chapter 9 institutions. However, the present target of two
years seems to the Committee to be rather lengthy. It accepts, however, that this
is just a start, and that the OPP intends to further reduce the time it takes
to finalise its cases.
7.8.
The Committee understands the
Public Protector’s concern regarding the need for the process of appointing a
new Public Protector to begin well before the expiry of the present incumbent’s
term of office, in order to ensure continuity and the opportunity for the
transfer of knowledge. This is a concern that has also been raised by the other
Chapter 9 institutions that appear before this Committee regarding their own
change of leadership. In addition to including this matter in its exit report,
the Committee intends to raise the matter of appointments generally with the
Speaker.
7.9.
The Committee was interested
to hear of the initiative involving the European Union Civil Society Advocacy
Project, which produced a landscaping report and many recommendations that the
OPP is implementing. The Committee would like to know more about this,
particularly the proposed recommendations and will pursue this further with the
OPP.
7.10.
The Committee is aware of the
dissatisfaction with the lack of legislative uniformity in the procedures to
determine the salaries and conditions of service that are applicable to the
various heads of the Chapter 9 institutions, as well as the lack of
consultation with regard to increases. It also notes the regrettable failure to
consult with the Public Protector on the recommendations relating to the
remuneration of Independent Office Bearers, despite the relevance of these
recommendations to the Public Protector. The Committee will pursue this further
with the relevant stakeholders.
7.11.
The Committee notes that the Ad Hoc Committee on the
Operational Problems in the Office of the Public Protector raised specific
concerns regarding the ongoing litigation between the Public Protector and the
Deputy Public Protector. While the
Committee respects every person's constitutional right to litigate in order to
protect and enforce their rights, the Committee hopes that this matter, between
the two highest officials in the OPP, can be resolved in a responsible and
sensible way.
8.
Acknowledgements
8.1.
The Committee thanks the
Public Protector and all those who appeared before the Committee for their
co-operation.
8.2.
The Committee acknowledges
with appreciation the very valuable work done by Ms Christine Silkstone in shaping this report.
Report to be considered.