Public Protector on its 1st Quarter 2010 Performance

Meeting report

Public Protector Quarterly on Strategic Plan implementation in 1st quarter of 2010/11
Advocate Thuli Madonsela, Public Protector of South Africa spoke on the following: constitutional mandate, a general overview, institutional performance, cases processed and received, reports issued and key performance achievements. There were five key strategic objectives that had been formulated for this year. These were that the Public Protector had to be accessible and trusted by all persons and communities; it would provide prompt remedial action; promote good governance in the conduct of all state affairs; be an efficient and effective organisation and incorporate optimal performance and a serviced focused culture. During the last quarter the Public Protector had tried to ensure that it was accessible to the general public. The regional offices were increased as well as the community visits. During the month of October a Public Protector Good Governance week would be held. The target market for the Public Protector was 20 million adult South Africans. Every complaint had to be treated responsively and the goal was for there to be prompt remedial action. In the last quarter more emphasis was placed on turnaround times.

It was important that the interventions of the organisation had to result in systemic change and this was reflected in strategic objective 3: promoting good governance. The organisation was trying to work with other stakeholders for the purposes of good governance and to try and manage demand. The organisation had been re-organised structurally. Therefore in each unit there were individuals who specialised in a particular subject area for example there were those who dealt exclusively with local government issues, justice etc. Total specialisation was not possible though due to the size of the unit.  A new customer service unit had been created. The legal and quality support unit dealt with quality assurance and compliance monitoring. The key achievements included stakeholder collaboration. This meant that the Public Protector was now working with other entities like the Auditor-General and Special Investigating Unit (SIU). The turnaround time was enhanced through reviewed business processes. An example of this was the Think Tank (Internal Peer Review Mechanism), which now sat more frequently than previously which was once per quarter. The pursuit of accessibility was mostly on leveraging stakeholder relationships. The Public Protector had been questioned by Parliament and the Auditor-General on its monitoring and implementation. There was now a systematised method of monitoring. The organisation had met with the President, Minister in the Presidency Collins Chabane, the Minister of Cooperative Governance, Minister of Human Settlements and the Mayor of Tshwane in order to maintain communication lines with key government departments and structures. 

Last year there was an audit finding from the Auditor-General, this year a clean audit was achieved. However the Auditor-General did raise concerns on the accuracy and reliability of performance information. In response the organisation had changed the instruments for collecting data and more stringent measures for the effective monitoring of performance information were put in place. During 1 April – 31 July 2010, a total of 6 733 cases were investigated. These included 3 945 cases carried over from the previous financial year, 3360 new cases were received and 2 788 were finalised. The organisation was struggling to finalise cases expeditiously, one of the reasons was that investigations were now being thoroughly undertaken. In some instances cases were closed but the individuals seeking relief would come back again and they were re-opened. The size of the investigative team had not increased. Cases were more complex and cases that involved the government included diverse subject matters. Investigators were being trained in advanced investigative techniques and the teams would be diversified so as to include personnel that were not lawyers. There was commitment to improve the turnaround time, which was previously up to periods of a year for the conclusion of cases. Achievements for 1 April – 31 July 2010 for its objective to be accessible to and trusted by all persons and communities, were: 169 clinics conducted, 26 radio slots, 59 information sessions and 6 published newspaper articles. Measures had been put in place to ensure a speedy resolution of complaints and 23% of cases were finalised within a month and 53% within three months. A key objective of the Public Protector was to investigate and handle all complaints that related to the Executive Members Ethics Act. The notable complaints during the period under review were a complaint about the President and two relating to Minister Nyanda. All three cases had been finalised. It noted that Draft Rules had been compiled in accordance with section 7(11) of the Public Protector Act 23 of 1994. The Committee was welcome to engage with this process.

The Public Protector urged Parliament to assist in the monitoring of its recommendations. This was a serious issue. Some of the cases where state departments had not implemented the recommendations of the Public Protector had serious implications for citizens. For example there was a case decided by Adv Baqwa in 2002 regarding the Venda Pension Fund, the recommendations of the Public Protector were never implemented and the matter had dragged on since. Another case was the Nandoni Dam report where people were dying because the state had not carried out recommendations to erect adequate safety structures.

Another issue that was needed to be resolved was the salary and conditions of employment of the Deputy Public Protector. The Department of Justice and Constitutional Development (DOJ&CD) had said that the Public Protector had to resolve this matter with Parliament. The Public Protector requested that Parliament should initiate a dispensation on this matter and the Executive should implement it.  Parliament should also review the budget of the organisation. The Public Protector was chronically unable to fulfil its constitutional mandate on investigations. It had never been able to conclude a single matter within the requisite 30-day period.

Discussion
Adv S Holomisa (ANC) asked why there had not been any action on the Venda Pension Fund and who was responsible for it not functioning properly. What were the recommendations of the organisation against those who were not complying with its reports? Had the Public Protector received any complaints about organs of state that were not paying service providers on time?

Mr S Swart (ACDP) commented that the South African Human Rights Commission experienced the same problem of non-compliance from state organs and the Committee had to assist the Chapter 9 institutions with this. Concerning the budget review, was the Public Protector communicating with the Parliamentary Budget Unit that was now up and running?   How could the Committee provide assistance? Could the Public Protector expand on the loss of lives in the Nandoni Dam case? Would the loss of lives during the public servants strike fall within the ambit of the organisation and would it be able to launch an investigation?

Ms N Michael (DA) sought clarity on the preference given to investigations, how was this decided? How did the Public Protector ago about ranking cases according to importance especially if one compared the Midvaal Municipality case which had taken longer than 18 months to conclude and the Julius Malema case, which took about two months?

Mr L Landers (ANC) commented that he wondered if the powers of the organisation to issue subpoenas, was adequate. The Committee should look at legally providing further powers to deal with matters where there was non-compliance from state departments or government officials. It was not acceptable that such an office could be defied by anybody. Instead of amending the Public Protector’s mandate regarding the Executive Members Ethics Act, Parliament should look at increasing the power of its resources in order to allow it to take on more investigators.

Adv Madonsela replied that the Venda Pension Fund report identified the Minister of Finance, the Ministry of Public Services and Administration and the Government Employee Pension Fund as the entities responsible for the Venda Pension Fund. The Public Protector had written to these organs of state asking them to come together and resolve the matter. In a special report to be tabled in Parliament later during the year, the Public Protector would request of Parliament to inquire from these organs of state why they had not complied with its recommendations. The courts had upheld the view that recommendations from the Public Protector had to be implemented. Another concern was that implementation had not been done on time. The Public Protector received many complaints from service provides who had not been paid by organs of state. The Deputy Public Protector in some instances had had to personally engage with organs of state requesting that they settle debts to service providers.

In some instances settlement agreements had been brokered by them due to a lack of funds from some organs of state. The special report would name and shame those organs of state that did not carry out recommendations. There were two state organisations that refused to implement the Public Protector’s recommendations without giving reasons, this raised concerns as to their understanding of the Constitution. The organisation had spoken to the Minister of Water and Environmental Affairs about the Nandoni case. She had agreed to give the matter her attention. Previously the report had disappeared and the relevant authority had not seen it. It was during this time that citizens had lost their lives. The Minister had offered to go to Nandoni and assess the situation. With regard to the public servants strike, the requests for the Public Protector to conduct an investigation were crafted in a manner that seemed to suggest that the unions should be investigated. It should be borne in mind that unions were not organs of state.

The question on how investigations were prioritised was important. Some cases were labelled special attention matters and thus received top priority. In the Midvaal Municipality case, new facts transpired on a recurring basis and thus it had taken a long time. There was never an attempt to prioritise one case over the other and if anything, the Midvaal Municipality case had more people working on it.

Ms Michael said that the Minister of Human Settlements had instituted a Section 106 of the Municipal Systems Act against the Midvaal Municipality, could the Public Protector clarify why this was done, seeing that it was also investigating the matter?

Adv Madonsela replied that it was on record that the investigative team of the Public Protector requested assistance with regard to forensic auditing. It then turned out that the Minister of Human Settlements had approached the SIU. The Public Protector decided to work together with the SIU. In response to the comment by Mr Landers, she thought that the organisation was not utilising its powers fully. For example, they very rarely issue subpoenas. The penalty for ignoring a subpoena from the Public Protector was R40 000. Not that many Ministers would want to part with that amount of money.

Mr M Gungubele (ANC) said that since the Public Protector was experiencing a number of serious problems perhaps it would be best if it updated the Committee every two months or so.

Mr J Sibanyoni (ANC) asked if the Public Protector conducted radio interviews in any indigenous languages.

Adv Holomisa said that the Public Protector was given powers to enforce its recommendations. Why was it that non-compliance was still an issue?

Adv Madonsela replied that the main problem that had forced the Public Protector to hesitate in some matters was the issue of whether it could subpoena a Minister on a matter that was purely a governance issue. The Public Protector would welcome the opportunity of reporting to the Committee more regularly. The organisation was trying to use multi-languages when conducting radio interviews.

The Chairperson concluded, saying that the Committee accepted the invitation to participate in the consultation process on the Draft Rules. The fact that the Public Protector was working with other stakeholders in investigations meant that it should seriously consider making use of this avenue on a more regular basis. The Committee had to debate the matter of taking away the budget of the organisation from the Justice Ministry. The consequences of non-compliance had to be also tightened, as individuals could not be criminally charged.

Meeting Adjourned.