Public Protector 2009/10 Annual Report

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Justice and Correctional Services

14 October 2010
Chairperson: Mr J Jeffery (ANC)
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Meeting Summary

The Public Protector presented the organisation’s annual report for the 2009/2010 financial year.

The work of the organisation was effectively to investigate maladministration, abuse of power and to resolve disputes involving alleged improper or prejudicial conduct by organs of state. The Committee was informed that the vision and strategic objectives of the PP had shifted during the current financial year. The organisation had taken several step to improve its services, this included a more concentrated focus on remedial action for complainants, a commitment to reducing the turnaround time for cases and the implementation of the recommendations from the Auditor General. The Public Protector had improved from a qualified audit in the past financial year to an unqualified audit during the current financial year. Some of the key achievements were that 14 738 cases were finalised and 2987 cases fell outside of the PP’s jurisdiction and were disposed of through advice and referrals. The case turnaround time was as follows: 52% of cases were resolved between 0-3 months; 18% between 4-6 months; 19% between 7-12 months and 11% were 13+ months. The case breakdown per organ of state was as follows: Department of Justice and Constitutional Development - 1918, Municipalities as a whole - 1543, Home Affairs - 1501 and the Department of Social Development - 1333. In order to deal with cases and have them resolved as efficiently and quickly as possible, the Public Protector was going to establish an early resolution unit, a group that focused on good governance and a group that focused on service delivery improvement.

The Public Protector had improved its good governance by making sure that it complied with applicable legislation and treasury regulations, identified the organisation’s risks and improved on security management. The vacancy rate at the organisation was 4.5%. The challenges were that the organisation was working under severe funding constraints to discharge its mandate properly. There were 93 investigators who dealt with about 16 000. The capital expenditure had exceeded the budget and staff was still owed money in the form of back pay and performance bonuses.

The Committee requested more information on the case referral system as well as own initiation investigations. The Committee was gravely concerned with the Auditor General’s report on the organisation despite the unqualified audit opinion. The Committee was of the opinion that the Public Protector had not provided adequate information for the purposes of getting more funding. A detailed analysis of the cases and nature of complaints was also not provided for. The Committee stressed that it was vital that it receive more details on the cases especially as the Department of Justice and Constitutional Development had the most cases against it.



Meeting report

Presentation on the 2009/2010 Annual Report
Adv Thuli Madonsela, Public Protector (PP), presented the organisation’s annual report for the 2009/10 financial year. The vision and strategic objectives of the PP had shifted during the current financial year; this was due to a mandate analysis. The last five months had been spent re-organising the review. The organisation had a more concentrated focus on remedial action for complainants. The organisation had also committed itself to reducing the turnaround time for cases. Part of the work done was to implement the recommendations of the Auditor General (AG) from the previous financial year. Last year the PP had received a qualified audit; this year the PP had received an unqualified audit report. This year the aim was to resolve outstanding issues that had been highlighted by the AG. The PP was given a constitutional mandate to investigate any conduct in state affairs. The PP had additional powers spelt out in various pieces of legislation. Amongst these powers was the power to investigate maladministration, abuse of power and to resolve disputes involving alleged improper or prejudicial conduct by organs of state. The PP was governed by the principles of public administration in chapter 10 of the Constitution. There were three core principles that the PP incorporated; these were accountability, integrity and responsiveness. Some of the new Principles and Values were Independence and Impartiality, Human Dignity, Equality, Ubuntu, Redress as well as Justice.

Some of the key achievements were that out of 16 236 cases received 12 316 fell under the jurisdiction of the PP. 14 738 cases were finalised in the year under review. The reason for the increase in cases was because of the carry-over from the past financial year. 2987 cases fell outside of the PP’s jurisdiction and were disposed of through advice and referrals. 52% of cases were resolved between 0-3 months; 18% between 4-6 months; 19% between 7-12 months and 11% were 13+ months. The PP’s intention was to try and not have cases that ran over a year and for the long run to investigate and conclude cases within 6 months. The bulk of the cases came from the Department of Justice and Constitutional Development (DOJ&CD) - 1918, Municipalities as a whole - 1543, Home Affairs - 1501 and the Department of Social Development (DSD) - 1333. The bulk of cases from DOJ&CD were around appeals and delays in the courts. The PP aimed at having an early resolution unit, a group that focused on good governance and a group that focused on service delivery improvement. Section 182(4) of the Constitution made it obligatory for the PP to be accessible to all persons and communities. The PP had tried to fulfill this mandate by hosting 81 collaboration activities with other stakeholders; 245 information sessions held; 48 slots obtained on community radio stations as well as 921 conducted clinics amongst other activities.

The Business Systems had been reviewed; and as a result a new and competent audit committee had been appointed to address some of the issues raised by the AG. There was an improvement on the asset management system. A staff manual was drafted and approved. All staff members had signed a performance agreement. Some important cases included the Construction of the Nandoni Dam, which was negatively affecting communities near Thohoyandou; the duplication of Identity Documents (ID) from the Department of Home Affairs as well as a complainant who was wrongly held liable for payment of a DNA test conducted by the South African Police Services (SAPS).. There was alleged failure by a Member of the Executive Committee (MEC) and Head of Department to comply with relevant provisions of the Public Service Act and Regulations. There was a corruption case in the Free State where a cheque meant for the Master’s Office was not deposited to the right person’s bank account. The PP was increasingly getting these sorts of complaints. Many complaints were resolved through conciliation, mediation and negotiation.

 

There were five key strategic objectives. The first strategic objective was to enhance international participation.

The Chairperson interrupted and asked the PP to focus on those key issues as most of what she was presenting was already in the annual report.

The PP said that the next strategic objective was to establish an effective relationship with organs of state. The presentation contained a list of those organs of state where the PP was confronted with problems where cooperation was concerned. This was corrected through mediation and communication. The next strategic objective was to establish the media as a critical partner for enhancing the work of the PP. The monitoring of the implementation of the reports based on the PP’s findings was intensified. There were several activities aimed at raising awareness for the mandate of the PP. To ensure improvement, the case management systems were reviewed, the financial systems were revisited and there had been structural re-organisation. The structural improvements were the separation of early resolutions from others as well as the separation of good governance investigations from the service delivery ones. Staff members had been grouped according to departments. The PP had improved on its good governance by making sure that it complied with applicable legislation and treasury regulations, identified the organisation’s risks and improved on security management. The monitoring of institutional performance was now on a monthly basis. The service strategy was shifted but now it has been reviewed for the current and next financial year.

Performance agreements had resulted in the installation of a high performance culture within the organisation. The vacancy rate was 4.5%. Staff turnover was in the skilled section as there was high competition. In conclusion, the complaints received during the past financial year were indicative of the poor levels of service delivery. The main problem areas were pension funds, the provision of basic necessities and local government. There were also a number of complaints received for corruption and unethical behaviour amongst government staff members. Tender irregularities, abuse of power and resources were also a constant source of complaints. Local government needed a lot of attention in the area of systematic administrative failures. A good lesson learnt from the financial year was the importance of stakeholder relationships; the PP would render this to be a key focus area in future. Resource constraints continued to be a key challenge, the current budget allocation of R112 million was grossly inadequate. There was a need for skilled investigators.

Presentation: Annual Financial Statement
Mr Themba Mthetwa, Chief Executive Officer (CEO), Office of the PP, noted that there were some outstanding issues; however the organisation had received a clean audit. There were four programmes, which were Investigations and reporting; Executive Management; Outreach and Corporate Support Services. The PP was working under severe funding constraints to discharge its mandate properly. There were 93 investigators, if one had to divide the workload of about 16 000 cases amongst them then it meant that each one had more than 100 cases. The capital expenditure had exceeded the budget. The PP owed the Deputy Public Protector (DPP) back pay and staff members also had accrued performance bonuses outstanding.

 

One of the challenges encountered by the PP was the implementation of the approved structure. Treasury had informed the PP that funds had not been appropriated for this structure despite its approval by the Committee, it was hoped that this would be sorted out soon and the Committee’s assistance in this regard would be appreciated. The PP had engaged in a cost cutting initiative aimed at reducing costs as far as possible. Staff members had been requested to identify areas where costs could be reduced. The PP had tried to diversify the capabilities of its staff so as to enable them to multitask thus they were able to perform the work that would have been done by a new appointee. There were currently some mandates, which had not been budgeted for, for example the R2.8 million video-conference centre. As the office had progressed and continued to progress, so did its budget especially when Parliament continued to enact legislation that affected the PP for example the top investigators spent a considerable amount of time on the Executive Members Ethics Act.

Discussion
Mr J Sibanyoni (ANC) asked about the referred cases that fell out of the jurisdiction of the PP, where were the cases mostly referred to?

Ms D Schaefer (DA) asked how the PP decided on own initiative investigations, during visits did the PP take the media along? Mr Mthethwa had conveniently excluded the section in the annual report where the Auditor General made some horrible comments. What had the PP done to address the AG’s comments, it was a damning statement to say, “The accounting officer did not ensure that the PP had and maintained an effective, efficient and transparent system and internal controls.” It further went on to say, “The Public Protector did not have competent persons who understood the financial reporting framework.” This was quite a damning statement, what had the PP done about this?

 

Ms Schaefer congratulated the organisation for not getting a qualified opinion this time round. Could there be an elaboration as to what the focus week was about, how did it fit in the mandate of the PP? Why were staff members getting two bonuses a year, could there be an explanation? In future reports should include what responses were received or not received from organs of state.

Mr S Ntapane (UDM) asked what the PP was doing about the non-complying organs of state. Has the PP engaged with those organs of state that were not complying? The AG’s report was concerning, what had the PP done to correct the issues that were highlighted?

The Chairperson suggested that the response to the AG’s report should be in writing so that it’s on record. The last section of the presentation by the CEO was not in the annual report, it was useful but the information was not enough for the Committee to consider whether it should give the PP more money. There was a funding crisis throughout government but the question was could the PP expand within these current economic conditions. It would be useful to have a detailed categorisation of cases. There was a need for more detail on the cases. The PP stated in the annual report that most of the complaints and investigations were against the Department of Justice and Constitutional Development (DOJ&CD), This Committee oversaw that department, it was critical that the Committee should have detailed information. The complaints had to be more statistical and analytical. The Committee needed to be informed in more detail where the problems laid.

Adv Madonsela replied that most referred cases were sent to the Judicial Inspectorate of Prisons as prisoners complained habitually about trivial things. Other referrals were sent to the Independent Complaints Directorate (ICD). The cases referred to the ICD were around police brutality. Some referrals that related to human rights were sent to the Human Rights Commission. Own initiative investigations were taken up by investigators if a story was in the media or there was something worth investigating that they either knew about or came across in communities. The PP did not conduct as many own investigations as the workload was already too much as it was. The PP did not take the media along with it to promotional events however it did have quarterly media briefings on the cases that it had handle during that quarter. The PPs good governance week was relevant to strategic objective three: to ensure accessibility of the Public Protector services to all persons and communities. The relevance of this week was to try and reach the nation as a whole. There were no two bonuses received by staff members; the terminology may have been misleading. There was a 13th cheque and a performance bonus. Ms Schaefer was correct that the PP should provide more information on the types of responses it received from organs of state. Sometimes organs of state did not respond on time and in other instances they did not receive the PP’s letters, which was to say that they did not have proper internal systems. One would often find ordinary junior staff members responding to letters sent by the PP but meant for someone in senior management.

 

The only reason why the AG’s report was not mentioned was because the Chairperson had requested that the presentation should not mention what was in the annual report in detail. The PP had meaningfully engaged with the AG and had drafted an implementation plan to address the issues. The AG was trying to assist in good governance and not necessarily wrongdoing. It was accepted that the information that was presented as well as that which was in the annual report was not in detailed analytical form for funding purposes. However there was a definite need for more investigators because to have 93 investigators holding three arms of government to account including provincial and local government was too much to ask.

Mr Mthetwa added that the PP had had a debriefing session with the AG where the action plan was presented to them.

The Chairperson adjourned the meeting and recapped by reminding the PP that it had to provide detailed information that warranted an increase in funding. The PP also had to provide the Committee with a detailed response as to what it had been done concerning the AG’s findings. Finally the PP had to provide the Committee with more information on the cases involving the DOJ&CD.

The meeting was adjourned.


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