The Office of the Public Protector briefing first looked at the appointment of the new Public Protector. The term of the current Public Protector ends in October 2009 and with this in mind the hand-over plans were presented. The Public Protector commented on the difficulty he had experienced when he took office in 2002 as there had been no concrete hand-over plans. He did not have the benefit of a direct hand-over from his predecessor. He also referred to the non-renewable nature of the contract and that this could deter younger applicants, as it created uncertainty about their futures. He was concerned that the conditions of appointment of the Public Prosecutor would lead to the exclusion of younger applicants and starve the organisation of innovation.
A written report will be produced at the end of this term. The challenges facing the OPP were discussed as were the lessons learnt. Priority issues highlighted were: the appointment of the third Public Protector, the matter of the salary of Deputy Public Protector and the need for additional funding.
The Public Protector appealed to the Committee for increased support through more frequent interaction with Parliament and timeous intervention in appropriate matters as well as for suggestions and discussions on improving the institutional performance.
The Strategic Plan for 2009-2012 covered a discussion of the organisational structure, strategic objectives, programmes and sub-programmes.
The presentation of the budget overview used graphs to illustrate the fluctuations in budget allocation increases. The main split in expenditure was between personnel expenditure and spending on goods and services with a comparatively higher percentage spent on personnel expenditure.
The major financial challenge was clear when the increases were adjusted for inflation revealing that budget increases were significantly less in real terms. If this continued, the Office of the Public Protector stated that it would not be in a position to perform services at the same level in the next financial year.
Some members probed the Public Protector on the matter of independence of the Office of the Public Protector and difficulties in investigating high-level officials.
The Committee suggested that the end-of-term report should include an analysis of the impact the Office had had on the functioning of government, as the nature of their activities seemed reactive. A more detailed report on technical planning for 2010/11 was requested. They queried the seemingly disproportionate budget allocations to the provinces and asked why there was a disparity between the population density of provinces and budget allocations. The use of mobile offices in rural areas was raised. The use of traditional leaders’ offices as more permanent headquarters for the OPP in rural areas was suggested by members.
The Committee Clerk reported that the Chairperson was unable to attend the beginning of the meeting and designated Mr M Gungubele as Acting Chairperson. The Committee had no objection to this.
Appointment of the next Public Protector
Adv Lawrence Mushwana, Public Protector, briefed the Committee on the process followed in the appointment of the Public Protector. Notably, the term of the current Public Protector was due to expire in October 2009.The hand-over plans in place were aimed at ensuring a smooth transfer to the successor.
He provided a synopsis of his end-of-term report which covered the following areas in detail: the Status Report of the OPP in 2002 (when he assumed office), Achievements and Challenges, Interpreting & Fulfilling the Constitutional Mandate, the Interpretation of the Constitutional Mandate, Strategic Management from 2002 to 2009, the Organisational Structure of the OPP, Financial management and accounting, the International profile of the OPP, Report of all Provincial and Regional offices and a summary of all special and formal reports.
Challenges facing the OPP were the allocation of budget to OPP through Department of Justice and Constitutional Development (DoJ), budgetary constraints, and the resultant inability to fill critical posts and funding for Enterprise Resource Planning (ERP) due to limited funding. Related to this they noted that the implementation of the Occupation Specific Dispensation (OSD) for legally qualified personnel had proved challenging.
Under more policy related challenges, he discussed the conditions of appointment of the Public Protector and Deputy Public Protector, threats to the independence of the Public Protector, lack of interaction with Parliament, lack of accessibility to all 44 million citizens and foreign relations.
The lessons were briefly presented. Adv Mushwana appealed to the Committee for increased support through more frequent interaction with Parliament and timeous intervention in appropriate matters as well as suggestions and discussions on improving the institutional performance.
Priority issues were the appointment of the third Public Protector, the matter of the salary of Deputy Public Protector and the need for additional funding.
Strategic Plan for 2009-2012
Mr Themba Mthethwa, Chief Executive Officer: Office of the Public Prosecutor, gave a brief outline of their legislative framework and mandate. This was followed by an explanation of the Office’s strategy according to organisational structure, strategic objectives, programmes and sub-programmes.
Mr J Mculu, Chief Financial Officer: Office of the Public Protector, noted that the purpose of the first graph was to indicate the percentage change in the budget allocations for previous financial years and the accompanying fluctuations in increases.
The following graph illustrated spending on personnel expenditure and on goods and services and he noted the comparatively higher percentage spent on personnel expenditure.
The challenge they had faced over the past financial years was that when increases were adjusted for inflation, the budget increase was less in real terms. If this continued, the Office of the Public Protector would not be in a position to perform services at the same level in the next financial year.
The Budget Allocation per programme indicated the percentage allocations to the divisions within their three programmes: Investigation and Outreach, Executive Support Services and Corporate Support Services.
The bulk of the Budget Allocation between provinces was allocated to the
Two of the financial challenges described related to the Enterprise Resource Planning mentioned earlier. These were upgrading the financial system and the development of a costing model for investigators.
The Chairperson asked which of the three programmes represented their core function.
Mr Mushwana replied that it was Programme 1 - Investigation and Outreach.
Mr J Jeffery (ANC) referred to the complaints and stated that he did not get a sense of what the complaints were about. He said the members did not actually know what the Office of the Public Protector was doing. Was the Office of the Public Protector making an impact? What was the impact after they finalised a complaint. He asked for a greater analysis of the complaints.
Adv Mushwana replied that the purpose of the investigation was not to ensure that “people were paid or that the complaint was resolved”. Although this was an outcome, the real purpose of an investigation was to find the root cause of the problem - the reason a person had to complain to the OPP to begin with. The Constitution stated that the aim of the making a recommendation was to prevent a recurrence of the problem.
Mr Jeffery pointed out that there was a disparity between the number of complaints received per province and the population of the province. The
Mr Jeffery noted the statistics reflecting progress in reducing the number of complaints carried over to the following year. He asked what the problem was in
Mr Jeffery referred to the expenditure report for the provincial offices. He noted that spending was not proportional to the population of the province. The largest budget by far was allocated to the
Adv Mushwana responded that the budgets were based on their past experience of the volumes of complaints in provinces - essentially a record of need. Accordingly, the provinces with high complaint volumes had more staff and funds allocated to them. The OPP did not know why
Mr Jeffery referred to the problems between the Public Protector and the Deputy Public Protector and asked if these issues had been resolved.
Adv Mushwana replied that these issues had been addressed and the OPP was now running smoothly.
Ms D Smuts (DA) referred to recent comments made about the independence of the OPP and the concern that the OPP might have been under “unfair attack”.
The Chairperson referred to the Public Protector’s comment that to attack the OPP could be seen as a crime. He asked for clarity on this statement, as it seemed incongruous with
Adv Mushwana responded that perhaps this was a problem caused by the language used. The statute was very prescriptive. When the Public Protector is attacked in court-like proceedings or a court of law, this would amount to contempt of court. It referred specifically to attacking the person of the judge. People still had the right to comment on anything.
Ms Smuts wondered if the contempt issue was not different from the matter of the insult to which the Committee had referred.
Adv Mushwana replied that Section 9 in the Public Protector Act prescribed what must not be done in criticising the Public Protector. It was in this context that they made this statement. Criticism was necessary but should not become personal.
Ms Smuts asked what lessons were learnt in dealing with complaints against senior government officials, mentioning the “Oilgate scandal” as a specific example. She wanted more clarity because the OPP was meant to be independent and fearless in its investigations.
Adv Mushwana replied that they had a media release on that subject. They were satisfied with the content of the judgment but the outcome did not seem to tally. The OPP was seeking legal advice on that. The challenge he had experienced dealing with these high profile cases was the media hype and the manner in which reporting was prescriptive of what the findings of the OPP should be. The OPP had never been afraid to tackle a case head-on and was satisfied with their findings, as they were made according to the facts.
Mr Holomisa pointed out that this related to the sub judice principle where the media dabbled in matters still before the court and suggested what the findings should be. He stated that this was a general issue concerning freedom of expression. He asked the Public Protector to comment.
Adv Mushwana replied that this observation was correct. The new democracy in
Ms Smuts pointed out that the Public Protector had mentioned the OPP’s role in co-operative governance and noted that the OPP was not subject to this. Chapter 9 in the Constitution stated that they were outside of government and therefore owed government no duty to co-operate. She requested a clearer view on this relationship.
Adv Mushwana replied that while the OPP did not try to buy favour with government, they did need to interact on matters of administration.
The Chairperson noted the challenges the OPP presented as a Chapter 9 institution. He asked the OPP to explain what would go wrong if they did not exist. He wanted them to concentrate more on the impact they had and how society was made better by their existence. Briefly, he felt that the value of the Office of the Public Protector should be better articulated in their representations to the Committee.
Adv Mushwana responded that if one looked at the large number of cases they were handling, people would be shocked if the Office of the Public Protector would no longer exist. Practically, there were many examples of the cases the OPP handled cases that amounted to bread-and-butter issues such as pensions, ID mix-ups and other such unfair treatment by government. It was obvious what would go wrong. There was a column in the Annual Report 2008/9 on the types of cases they dealt with.
The Chairperson clarified that Mr Jeffery wanted to know whether the Office of the Public Protector was making an impact on society. For the Committee to evaluate this, the OPP should prioritise what the key problems were and whether they were making a difference. There was no clarity on what their key targets were.
Mr Jeffery stated that he had resolved a similar ID Book problem in his own constituency. What one would expect from the OPP was its impact on the relevant department, in this case, the Department of Home Affairs. What did they do to ensure that similar problems did not arise again. How was the OPP engaging with the trends arising from their investigations? The analysis in the Annual Report was fine on the kinds of cases. Perhaps they could report back to the Committee on what the outcomes were and if they interacted with government departments to correct the problem in the longer term.
Adv Mushwana replied that they did conduct systemic investigations and made recommendations to the Department of Justice (DoJ), National Prosecuting Authority and Department of Correctional Services, which the Secretariat of the OPP was currently monitoring.
The Chairperson stated that the key principle was that when Parliament allocated funds, they defined an area that they wanted to make an impact on. When they evaluated this at year-end, they expected the ability to align expenditure to the strategic targets. This was a reactive explanation. The Committee called for a problem statement and an explanation of how they prioritised issues they dealt with, in line with the suggestion made by Mr Jeffery.
Adv Mushwana opined that perhaps they were talking past each other. At the end of every financial year they balanced their books and looked at their core functional area, which was investigations. The OPP was there solely to conduct investigations based on the complaints they received. This left very little scope for prioritisation. They could not send someone away because the complaint did not fit a priority area.
The Chairperson stated the need to correct the salary complaints of their staff as this related to high staff turnover. This would facilitate filling vacant posts with skilled people. This was a critical issue that threatened the independence of the OPP.
Adv Mushwana responded that the previous Portfolio Committee on Justice and Constitutional Development had set the terms and conditions for salaries. It was not the Minister of Justice and at the time they had been reprimanded by Parliament when they tried to engage on the matter. The OPP now commented on the practical problems they encountered currently with salaries.
The Chairperson stated that the technical planning of the OPP had been better compared to other strategic plans he had seen. It was however worrisome that the plans referred to the previous financial year and gave little detail on the current financial year. This was necessary because as the Committee met during the remainder of the year, they would want to know what to look for when conducting oversight of the OPP.
Adv Mushwana responded that this detail could be found on Pages 27 to 44 of the full report. In the presentation, they reported on what had happened but they had a forward-looking plan. They would report on the strategic plan on a quarterly basis and because this was a process, they had not been able to elaborate.
The Chairperson stated that they had presented a mix of a strategic and tactical plan. This did not help understand what was happening in 2009/10. The report provided was one composed of reactions to complaints. The challenges noted were institutional and did not concern their core function. Parliament allocated funding to that core function. They must be able to report on challenges to performing their core function. He appealed to them to identify the challenges faced by departments based on an analysis of the complaints received.
The CEO, Mr Mthethwa, replied that he agreed on the points raised by the Chairperson and Mr Jeffery. This was a lesson to the OPP on how the Committee wanted them to report and also that the OPP should make an impact on government. He was now aware of exactly what was needed and these would be included as targets in the reports.
Mr S Holomisa (ANC) referred to the statement on the non-alignment of salary arrangements between the OPP and the budget allocation by the DoJ and that this was compromising their ability to fill vacancies. He asked what had been done to correct this situation. He also wanted to know what response the DoJ had given them, to allow the Committee to engage with the DoJ on the matter.
The Chairperson asked if they had a diversified salary allocation system asked if he was correct in saying that the budget allocation was not in line with this system.
Mr Holomisa queried the comment that it was a challenge to investigate high-level officials. It was the Public Protector’s job to protect people from the abuses of powerful figures. In light of this rationale, he asked the OPP for clarity on the statement.
Adv Mushwana replied that this issue was not peculiar to
The Chairperson agreed with this sentiment. He added that this Office should understand independence and not express fear at executing their duties.
Mr Holomisa referred to the call for increased interaction with Parliament and stated that he thought the OPP would have preferred a more arms-length relationship with Parliament as a matter of their independence. He asked for comment.
Adv Mushwana responded that the OPP needed to talk to Parliament, the DoJ and the National Treasury in order to obtain funding for their functions. There was no way that they could insulate the institution from interacting with the departments and stakeholders. This was why the Constitution clearly stated that state organs must assist the Public Protector, as a Chapter 9 Institution. He agreed that no department could tell the OPP what to do, but in terms of the administrative functioning, there was not reason for them to limit interaction with state organs. There were certain things they could not achieve on their own, especially without the co-operation of the DoJ, Parliament and National Treasury. The idea in establishing Chapter 9 Institutions was not to "throw them away" and deal with them at arms length. The Public Protector was created for a purpose and should be supported.
Mr Holomisa noted that the OPP's mobile offices were in rural areas to make services more accessible to the people. He asked why the mobile offices were not in the cities and suggested that there should be permanent offices in the rural areas. He was also interested about whether the OPP had explored the use of the traditional leaders' offices.
Adv Mushwana pointed out that this was a pilot project. They were trying this approach to see if it would work. Areas that had been identified were churches and traditional leaders' offices as more permanent headquarters. This was part of their strategy. People who do not have postal addresses presented a challenge. Their experience thus far had been that the OPP was viewed with suspicion in some areas by people wary of political interference. The OPP took this sensitivity into consideration when evaluating sites for offices. There was a desire to maintain a presence in rural areas and their mandate was to set up permanent offices. Some traditional leaders’ offices had political affiliations and this caused difficulties. Due to their understanding of these sensitivities, they needed to tread carefully on this matter. People in cities had other options and did not use the Public Protector often. People needed these services. In the rural communities, people saw the Public Protector as a body that came to them because they did not have the resources to come to their offices in the cities. People needed to access their services in rural areas but they were not readily available. The OPP had explored the option of mobile offices through a pilot project. They scheduled visits to these areas regularly. Each of the provincial offices had an outreach official to inform people about the services of the OPP. This was a process of building offices closer to the people. They were mindful of this need, within the limited resources available.
Mr Holomisa stated that there seemed to be no exit plan for the Public Protector. This was an important point as the term of the contract was non-renewable and the current Public Protector's term was due to end. He wondered if the uncertainty Adv Mushwana had lamented was not an occupational hazard and they should have contingency plans. He asked Adv Mushwana to clarify what he thought needed to be said about this as it related to the observation that this aspect would deter younger applicants.
Adv Mushwana responded that the OPP was not open to young people aspiring to join the institution. These were the people who would bring in new ideas and invigorate the institution. They should make sure the Office catered for the youth. Before he had taken up the post, it had been advertised three times - to which very few responses were received. He was simply expressing a general sentiment and was not referring to himself specifically.
The Chairperson concluded by saying that although this was one of the better reports, the Committee had seen, they still needed to point out the problems and inconsistencies. The engagement should be seen in the spirit of oversight.
The meeting was adjourned.
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