Office of Public Protector Strategic Plan & Budget Vote briefing, & Mandating Procedures of Provinces Bill: approval

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
07 June 2007
OFFICE OF PUBLIC PROTECTOR STRATEGIC PLAN AND BUDGET VOTE BRIEFING, & MANDATING PROCEDURES OF PROVINCES BILL: APPROVAL

Chairperson: Mr L M Mokoena (ANC)

Documents handed out
Presentation by Public Protector
Proposed amendments on Mandating Procedures of Provinces Bill
Department of Justice and Constitutional Development:copy of letter from K Suliman (confidential)
Report on provisional suspension from office Mr Mathe
Report on withholding remuneration Magistrate I Masimini (not distributed)

SUMMARY
The Office of the Public Protector briefed the Committee on its annual report and financial statements for the years 2005 and 2006, together with a forecast for 2007-2008. Full details were provided of performances, statistics, financial performance, challenges, collaborations with other institutions, and forward planning. The mandate of the Office of the Public Protector was to assist in strengthening constitutional democracy through investigations of any prejudicial conduct by an organ of state. The Office had shown significant growth and additional offices were planned, in order to reach the rural communities. There was still a malfunctioning of the IT case management system; and although a temporary manual system as utilized it was not satisfactory. An audit firm had been hired to check, and implement, the IT case management system to produce an adequate database. There had been unqualified audits by the Auditor General and any notes by the AG were duly attended to. Statistics were provided of cases handled, turn around time, gender and staff profiles, financial performance, classification of spending and challenges anticipated. The draft budgets for the next three years indicated a drop in years two and three. The OPP had not spent its full budget for preceding year and had requested a roll over of funds to 2007-2008.

Members sought clarity on the Mandate of the OPP, the IT system, and commented that the Public Protector’s comment that he was not proficient in IT was understandable but not an excuse. They asked questions on the malfunctioning of the IT system, the reason for the closing down of the system that had seemingly worked well in the Office of the Ombudsman, the costs of the audit,  the efficacy of the internal audit, cooperation of other State departments, the relationship with Government Communication Offices, the nature of complaints, the clinics, and the necessity of clearing backlogs. Members questioned the skills audit spending, the pie charts, the assumption of cases investigated on “own initiative” and the consequent danger of litigation, the overlapping of activities or interests with other Chapter 9 institutions, especially the Human Rights and Gender Equality Commissions, and hoped that the new Director of Communications post would result in positive publicity. Approval was expressed for reduction of turnaround times and the unqualified audits.

MINUTES
Briefing by the Office of the Public Protector (OPP)
Adv Lawrence Mushwana, Public Protector, Office of the Public Protector, stated that he would concentrate on three points in his presentation, even although full disclosure had been made in the accompanying documents. He emphasised that the mandate of the OPP was to assist in the strengthening of constitutional democracy through the investigation of any undue delays in service, or maladministration by government departments, abuse of power or any conduct by individuals that would result in prejudice to a citizen by an organ of state. He added that he had gained a lot of experience and hoped both he and the country would benefit from it.

Ms P Mogaladi, Executive Support, OPP,  informed the Committee that the audit report for the financial year 2005/2006 had been unqualified.

She continued that the National Office was situated in Pretoria with nine regional offices in the provinces and that regional offices had been established in Siyabusa and George. Arrangements to cover the vast distances of the Northern Province were being considered, as the intention was to bring the services offered by the OPP to those most in need, being the rural poor. Regional Offices for Upington and Mthatha were soon to be opened and investigations to establish the most suitable places for offices in KwaZulu Natal and the Free State were ongoing.

For investigations there were defined strategic objectives under the broad headings of performance, piloting and delivery. Service delivery indicators had been defined, and piloting and testing were completed so that there were now nine systemic investigations under way, with three already completed. As a standard practice a summary report would be produced on closing the file, which was intended to be entered into the database, and which would serve as a register of precedents and statistics from which conclusions could be drawn. 24 formal and specialised reports had been produced. Every case was signed by the Public Protector (PP) and contained recommendations or findings which were referred to the Managers of the Departments concerned, so that remedial action could be instituted with follow up, with the aim of eradicating complaints of a similar nature in the future.

With regard to Human Resource Management the two chief challenges were the retention of staff, especially IT staff, through an adequate remuneration strategy, and skills development and a consequent skills audit and necessary training. Of equal importance was the development of an adequate HIV AIDS strategy and a healthcare consultant had been appointed and a wellness centre established. There was focus on coaching and mentoring the eight senior female managers, as both public and private institutions in South Africa were competing in the same small and diminishing pool for female mangers and professionals. In addition there was the need to strengthen and train staff in the provincial office and an ongoing assessment and review of staff in terms of the Performance Management System. Training and delegation were important under administration and support areas, and the support requirements of the OPP would be reviewed on an ongoing basis. It was felt that this would be more effective after the appointment of a security manager. In addition Sizwe Ntsaluba had been appointed as Internal Auditors, tasked with reviewing the internal controls, to ensure compliance with the Public Finance Management Act procedures, and avoid risk. A divisional budgeting strategy had been developed and was being applied and all financial policies had been developed and were being applied.

Ms Mogaladi noted that a communication strategy had been developed and there were good relations established with Government Communication Information Systems (GCIS) and the Department of Foreign Affairs (DFA), which acted as a service provider for protocol training.
 
A workshop had been conducted to discuss and finalise outreach strategy and this would be finalized in this financial year. She noted again that regional offices had been opened in Siyabuswa and George, where 76 clients were being serviced monthly. A map reflecting the points and numbers of clinics serviced monthly was tabled.

In the areas of learning organization and information technology, the challenge was to develop and then retain knowledge, with a view to easing the case management system. There had been some problems with the State Information Technology Agency (SITA) but IT policies had been developed and adopted and an IT Disaster recovery plan adopted.

Ms Mogaladi tabled the statistical overview for the last , indicating that 17 415 complaints had been received and 14 103 cases had been brought forward. 17 619 cases had been finalised and 31 518 awaited investigation. At present it was not possible to do a breakdown into provinces or area per office, although it was hoped this could be done with the new IT case Management system.

Many complaints lodged, especially by the private individuals, were matters outside the jurisdiction of the OPP and so a distinction was made between clear and “irrelevant” cases. As soon as resources allowed, the non jurisdictional cases would be referred to the relevant destinations and monitored in order to provide a support base for constitutional democracy. There were declines in the numbers of complaints lodged in some provinces. A pie chart was provided reflecting the turn around time it took to finalise each case and it was reported that only 2% of cases required in excess of 25 months for finalisation, and here the delay was occasioned either by either the complexity of the cases or the lack of co-operative responses from Government Departments. Furthermore the number of cases handled by the National Office was declining because the Pretoria office was the office of referral.

Mr Z Docrat, Chief Financial Officer, OPP, noted that the total budget for 2005/06 was R59.2 million, of which R58.8 million had been spent. 68 % of income was spent on staff remuneration, 29 % on goods and services and only 3% on capital expenditure, and accordingly the OPP was still working to achieve all strategic objectives from a limited budget. The challenges had lain in finding the funding for the appointment of appropriate personnel, especially IT staff, and their retention. In addition the results of the outreach programmes by the OPP was the generation of more complaints in some provinces, and the vastness of some provinces meant that the investigators had to travel long distances, leading to delays and impact upon the costing of the investigations.

Investigation and reporting; communication services; corporate support services and knowledge management and Information technology had been identified as strategic goals for the 2006/07 year. From this had emerged the necessity for every file to have a closing summary, which was retained in the file but added to the Information System so that precedents and similarities could be entered into and maintained in the database.

With regard to investigations, Mr Docrat explained that there were eight strategic objectives, which he set out and explained in detail. He was pleased to be able to inform the Committee that 95% of cases had been completed within acceptable target periods, being 2 months. He indicated that 22 own initiative investigations had been initiated and nine were finalised. Statistical overviews for the 2006/07 year were presented.

Mr Docrat noted that a senior manager of Communication had been appointed, and a draft communication strategy was developed. Communication with the media was strengthened and the branding corporate manual was drafted.

Outreach was important in regard to the Chapter 9 institutions, and cooperative investigation of matters arising, and, where appropriate, Chapter 9 collaboration and sharing. The outreach activities were funded from donations from the European Union.

He re-iterated the challenge of finding, developing and retaining skills, especially IT and noted that an acceptable relationship was still to be developed with the Public Services SETA. With regard to HIV AIDS a wellness center, in addition to the appointment of a healthcare consultant, had been initiated.

In 2006/07 there had again been an unqualified audit report from the Auditor General and where there were queries or matters of concern raised these had been attended to.

In the field of corporate services and administrative support the chief concern was the vehicle fleet. All OPP motor vehicles were now fitted with the Netstar Vigil Fleet management device which meant that the usage of vehicles and their whereabouts could be comprehensively monitored.

An effective and efficient registry was being maintained manually, to be incorporated with the IT system that would soon be implemented, and a records management manual, as approved by the National Archivist, was being implemented. Mr Docrat noted that certain additional regional offices had been deferred to the next year, and he tabled a list of what had been done.

Mr Docrat repeated the problems with regard to the finding, skilling and retaining of IT staff, and noted that the IT programmes themselves remained a problem. With regard to the current staffing situation there was decline in some female numbers and in this regard the salary structures required review. Currently the staffing gender balance at senior management level was 71% male and 29% female, but he reminded the Committee that the staff complement was small and the loss of two female staff members distorted the percentages considerably. There had been a decline in case numbers and there was a need to request fund roll overs.  .
  
Mr Docrat stated that the budget allocation for 2006/07 was R 69,46 million, of which 67 % was destined for employee compensation, 27% for goods and services and 6% for capital expenditure which was in line with the norm. Historically the OPP was under funded, which meant that funds earmarked for spending often had to be rolled over to the next year’s priorities. R61.3 million had been spent. R8 million had been earmarked to four projects. He indicated that although there was a 10% increase in the budget, this would leave only 4% after taking inflation into account, and such small increases would curtail the activities of the OPP.

Dr R Russen, CEO, OPP, then addressed the Committee and stated that he was of the opinion that the increase in cases reflected a consolidation of democracy, which the OPP was mandated to support and expand, and that the number of cases handled or finalised was misleading; what was rather of importance was the fact that OPP was delivering services in support of constitutional democracy. He suggested that this meant a need to have a highly professional and highly competent staff and to retain them. There was around one resignation per month, and OPP was losing intellectual value and continuity. He felt it was important to have a lean but professional staffing complement. In the operational area OPP was adopting a thematic approach and sensitizing people towards government. Vulnerable children, especially those orphaned and heading households were most important. To address these needs, OPP needed clear terms of reference, an adequate budget and an outreach programme.  Limpopo KwaZulu Natal and the Eastern Cape required more attention and mobile offices were contemplated to visit every part of every province in a three-year cycle. This was included in the strategic goals.

The number of complaints being carried forward was a major concern, and it was possible that there was corruption of data in the records maintained by the former Ombudsman, in the new IT records of the OPP and hence a lacuna in the record. The manual system could not bring forward everything and thus the Independent Audit firm had been instructed to undertake an audit as a solution to the problems. There were some jurisdictional problems, where a complaint destined for either the Human Rights or Gender Equality Commission was incorrectly submitted to the OPP, which required collaboration and co-operation between the various offices.

Discussion
Mr M Mzizi (IFP, Gauteng) noted the reference to 9 systemic investigations and the finalisation of only 3.

Mr Mzizi was interested to note the overlap of the OPP with the Human Rights Commission.

Mr Mushwana replied that the intention at OPP was to channel the types of complaints so that there were protocols and precedents for approaching or handling the complaints. The drawing up of such systems meant 9 channels of which 3 were regarded as finalised. He noted that there were a number of cases relating to appeals to the Department of Justice and Constitutional Development by prisoners who had completed their full partial jail sentences, and felt that they were entitled to parole, or wished to appeal their convictions or sentences yet had not been given assistance by the officials of either the Department of Justice and Constitutional Development or Correctional Services. If the appeals process had not been concluded then the OPP could not finalise the complaint or case.

In regard to the overlap with other Chapter 9 institutions, Mr Mushwana said that in reality there were complaints lodged which were more truly the concerns of the Human Rights Commission or the Commission on Gender Equality. When this was discovered the complaints were not sent back to the source but instead were referred to the correct institution and there was collaboration in so far as the complaints were monitored until conclusion. The OPP wanted to establish a one stop shop or referral centre. The OPP was to be seen as the office of last resort for it dealt with service delivery complaints and the protection of Human Rights, but it had no power to take a matter to Court whereas the specialised Human Rights and Gender Equality Commissions did have that power to litigate. If the various offices were properly utilised there would be no overlapping.

In this regard he referred to the Name “Public Protector” and said that in fact the PP portfolio was truly an Ombudsman, but the framers of the Constitution had wished to avoid all words of a sexist nature and so “Public Protector” was chosen instead. “Ombudsman” was used in other countries, where sometimes this post would be held by a Minister or Councillor, but in all posts the functions and activities were based on the Paris Principles.

Mr Mzizi was interested to see that of the cases coming to the OPP there was a male domination while those going to the Commission on Gender Equality (CGE) were female dominated, and questioned if there was a reason for this.

Mr Mzizi, in regard to international relations and the meeting with the African Ombud, wished to know whether this was still the same or was to be changed and how synergy between the African Offices could be achieved.

Mr Mushwana replied that as an affiliate of International Ombudsmen he met with his African equivalents and shared notes and experiences. He ventured to say that the PP had become a symbol of PP or Ombudsmen in Africa, and was looked to for guidance. Angola Ghana and Mozambique were examples of countries that had followed South Africa’s lead. Efforts were underway to establish an Ombudsman Institute at the University of Kwa Zulu Natal and it was hoped that this would be operational before the end of 2007.

Mr Mzizi asked, in regard to Information Technology and the coding errors which had led to the Case Management System becoming defunct, where the errors had occurred, whether these were ongoing and what effect this had on funding.

Mr Mzizi asked for comment on the outreach and whether the proposals fitted into this year’s budget, and if so how.

 


Mr Mzizi asked the reasons for the high rate of resignations in the area of Information Technology and Knowledge Management, where staff went and what retention strategy was devised.

Mr N J Mack (ANC, Western Cape) was impressed by the presentation but was concerned that in his constituency of Beaufort West people seemed to have no idea of the possibilities offered by the OPP, and that the OPP itself had made little effort to get into Beaufort West. He was pleased to hear of the contemplated Mobile Offices and wished to have the provision of services to the poor, especially the rural poor, as a priority. Also he reminded the OPP that there were municipal offices or constituency offices and he felt that more if not some use should be made of these by the OPP.

Mr Mushwana sympathized with Mr Mack on the fact that Beaufort West was so isolated from the major centres and agreed there was a difficulty in making the services of the OPP available in such centres. He agreed that prima facie the use of the constituency offices might provide an rational answer yet reminded him that the OPP was to be independent, and he was concerned lest co-operation with constituency offices might be perceived to align the OPP too closely with any one political party, remarking that as it was the current PP was perceived to be too close to the governing party. He added that he was a long-standing member of the ANC, but as the occupant of the OPP must endeavour to be as unbiased as humanly possible. Despite all attempts on his part he was still seen as partisan. He saw this as coming from the Oilgate case, notwithstanding that in over 86 000 cases and especially 300 rulings against the ANC, he had striven to be impartial. There was another “disputable” case which was on its way the Supreme Court of Appeals.

 
Mr Mack was concerned, with regard to staffing in the OPP, to see that there was no provision or allocation for the appointment of disabled persons and felt that this should receive attention.

Mr Mushwana conceded that the OPP was doing poorly on employing disabled people but that this should receive attention soon.

Mr Mack was concerned about the roll over of funding.

Mr Mack enquired about the distinction between Jurisdictional and non-Jurisdictional matters and wanted to know whether non-jurisdictional matters were merely closed or referred onto the correct institution.

Mr Mack was concerned that the Public Service SETA, in common with other SETAs, did not seem to be fulfilling its mandate and wanted this looked into.

Mr Mack noted the reference in the staffing statistics to African males but was concerned that African Males such as himself were not receiving the deserved attention.

Mr Mack enquired about the Public Protector himself, who had recently featured prominently in the Media,  and he asked how the Members of Parliament could assist the PP himself.

Mr Mack was also concerned about the personal safety of the staff of the OPP, especially the investigators, and felt that that this might be a reason for their resignations. He asked if there was any knowledge of bribes being offered to, or intimidation being directed at the staff of the OPP.

Mr Mushwana said that personally he had never felt any threats or intimidation in his work and none of his staff had reported any to him.

Mr A Moseki (ANC, North West) asked whether OPP thought it would achieve its targets.

 
Mr Moseki asked what retention strategies, if any, were in place for the staff.

Mr Moseki asked, in regard to training orientation, if were there any key areas or strategic partners.

Mr Moseki asked if the successes of the OPP had been in the towns or in the rural areas and how many came from the really marginalized rural poor and most vulnerable. With regard to the outreach programme and the mobile offices, he asked how did the OPP ensure that the marginalized rural poor and most vulnerable received attention and services.

Mr Moseki pointed out that the percentages provided on some of the pie charts exceeded 100% and he wanted to know what strategies there were for including Kwa Zulu Natal and other provinces in the activities of the OPP.

Ms Mogaladi added that the PP was endeavouring to achieve outreach to all the provinces and especially the marginalised rural poorest of the poor, and cited the Mobile offices in this area of achievement. She added that the investigators were all legally trained, received in-house training to improve their skills and have them work within a procedure, but she conceded that there was a need to collaborate with the other Chapter 9 institutions in this regard. Currently the staff complement was 226 up from 208.

She conceded that the percentages provided in the pie chart on page 21 were inaccurate and asked the committee to regard these as a typographical errors rather than an attempt to mislead. MAB was explained as office

Mr D Worth (DA, Free State) also pointed out that the pie chart on page 21 added up to 125.4 % and not 100% and he wanted clarification on some of the references.

Mr Worth wished to know why the number of information sessions was so high.

Mr Worth enquired, in relation to the cases settled, which were the top ten State Departments involved. He indicated that there was reference to the SAPS and asked why such cases were not reported to the Internal Complaints Directorate (ICD) at the SAPS.

Mr Mushwana added that the OPP was continually engaged with training and there were ongoing attempts at standardizing the approaches of all the African Ombuds. With regard to the SAPS appearing, these matters were regarded as not falling within the ambit of the ICD investigation, and most related to perceived rudeness or lack of assistance of SAPS officials.

Mr Worth expressed the hope that the designers of the case management system were not the same designers as those of the E-Natis system that had failed so spectacularly.

Mr Mushwana said that the Office of the Ombudsman had had a computerised case management system but it had become corroded or corrupted. When the OPP was instituted a new computerised case management system was instituted but this had also become corroded or corrupted and when there was an attempt to merge the two systems to retain common precedents the merged system had become further corroded. There was thus the need to seek input from an Internal Auditor. SITA had not proved reliable in assisting the OPP. The Treasury had refused money to rectify the system hence the need to approach external Auditors.

Mr J W le Roux asked what was the problem with the Department of Public Works in relation to the OPP and how, in short, the OPP felt it could deliver an even better service.

Ms Mogaladi added that with regard to the Department of Public Works, National Treasury regulations supervened. Whenever expenditure of R200 000.00 or more was contemplated this had to be advertised by way of the tender process and this took not less than four months if there was no difficulty.

Mr A Manyosi (ANC, Eastern Cape) asked for further details about staffing and the difficulty of retaining staff, and noted that there were allegations that Mr Mushwana himself had left Parliament for the greener pastures of the OPP. There were complaints that OPP was

always under funded and he wanted an investigation of the costing of cases, and what was the main reason for the under funding. With regard to reward structures, he asked what steps were contemplated to bring rewards in line with activities and the market place.

Mr Mushwana said that in respect of staff remuneration the Public Service Commission also played a role and the OPP could not unilaterally set its own terms and conditions of employment. It was, however, endeavouring to persuade the Public Service Commission of the peculiar needs of the OPP. Every user of IT personnel was faced with the same problem since the pool of IT personnel was small.

Ms Mogaladi reiterated that the finding, skilling and then retention of IT staff was a major problem and no sooner were such staff settled in and proving competent they would be poached away with enormous remuneration packages. It must be recognised that there was a general country-wide shortage of IT people and then the need to accommodate the Employment Equity exacerbated the situation.

Adv Mamiki Shai, Deputy Public Protector interposed that most of the staff leaving were IT staff and not the investigators. A merit system had been introduced but this had run foul of the Public Service Commission regulations. There were ongoing attempts to develop flexibility with regard to remuneration.

Mr Mushwana said the OPP was working on a new remuneration strategy, especially for the investigators, who were now on level 7 while the administrative staff had been lifted from levels 3 and 4 to at least level 5. He reminded the committee that women staff at all levels were in demand to meet Employment Equity criteria. Dr Russen had dealt with the development of a management system to retain staff and expertise and experience.

Mr Manyosi asked in addition what preventative measures were being contemplated or set up to prevent new cases similar to those already investigated being brought forward by other complainants.

Mr Manyosi asked what was the problem with the Legal Aid Board, which he though operated in many of the same areas as the OPP

Mr Mushwana said that the Legal Aid Board was an organ of state and when applications for legal aid were turned down then there was an appeal to the OPP in an attempt to persuade the LAB to reconsider.

Mr Moseki asked if the OPP had canvassed any other sources of funding and, if it was being funded by the State, how could it be truly independent.

Mr Docrat stated that in the budget only R360 million, set aside for audit fees and legal costs had been rolled over, and this amount needed to be seen in the light of service accounting fees. He added that the Office was funded in terms of Regulations from the Treasury and always faced the problem of motivating for further increases of the budget. In this regard it could be viewed or argued that the OPP was not independent as desired by the Constitution but there was independence in its work, although not total independence from the funding point of view.

Mr Docrat then added that the office was under funded for it received a basic amount but there were additional unforeseen costs in bringing justice to the people. Additional funding had been obtained from the EU, but there was a problem with funding from other sources as frequently these sources had an agenda that they required to be followed, which impacted upon the independence of the OPP.


The Chairperson then wished to know why the Free State had such a high profile in the OPP report.

The Chairperson then suggested that further questions be responded to in writing before the forthcoming debate.

Mr Mzizi then referred to the Mandate of the OPP as set out on page three of the handout and asked that if there were any problems in the OPP writing to the constituency representatives.

The Chairperson asked which Government Departments were not implementing the recommendations in the case summaries, and the reasons. Additionally he wanted to know how the investigators were chosen and felt that much more could be done by the OPP to market itself. He asked what type of cases were not included in the budgets and had to be attended to. He mentioned reports by the CGE that men attempting to lay certain complaints charges were laughed at or driven away from police stations, and reiterated the concern that OPP seemed to receive very few reports from women.   He enquired what the total human resources were in the OPP, and how far these could be pushed.

Mr Moseki said that the Scorpions were under investigation and wished to know under what conditions the investigations were continuing.

Mandating Procedures of Provinces Bill
The procedures were presented by one of the legal advisors to Parliament and were accepted unanimously.

Consideration of documents for submission to the Magistrate’s Commission
Mr J Labuschagne, Department of Justice and Constitutional Affairs, presented documentation to be forwarded to the Magistrates’ Commission, outlining certain complaints, and the results and sentencing of their trials. The Committee took a resolution to be conveyed to the Magistrate’s Commission.

The meeting was adjourned.