Public Protector's Draft Rules relating to investigations and incidental matters

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Justice and Correctional Services

27 February 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Public Protector presented the newly drafted Rules of the Office of the Public Protector (OPP) to the Committee, and noted that these had resulted from a long consultative process with all relevant stakeholders. The Rules aimed to expedite the cases that this Office handled, and to facilitate collaboration with the state. Members of the public and organs of state should know what was expected of them, and what were the reasons and procedures for investigations. Many organs of state were not aware of some of the powers of the Public Protector, including the fact that it could resolve disputes through conciliation, mediation, negotiation and other measures. The individual circumstances of each case would be considered, but the Rules provided an overarching framework, within which there was, in many cases, discretion for the Public Protector to specify exactly what method must be adopted. All parties to a matter were involved of a complaint and were asked to give their version of the events. Any person adversely affected had to be given the right to respond. It was noted that these revised Rules were submitted to Parliament in November 2011, and although Parliament was not required to approve them formally, comments on the Rules, and further engagement, would be welcomed.

The Rules dealt with a number of issues ranging from the procedures for lodging, consideration and finalisation of complaints, access by the Public Protector to documentation, records, and material, the content and service of subpoenas. Rule 31 specified that proceedings could, but did not have to, continue if the person summoned had failed to appear. Rule 33 noted that the hearings were inquisitorial in nature. Rule 36(2) set out that there was more than one manner of resolving disputes, and a combination of conciliation, mediation and dispute resolution could be used.

Members expressed their concerns that there was widespread lack of understanding both of the power of the Public Protector and the way that it worked. There was a perception that immediately a report had been issued, this would result in, for instance, seizure of assets, dismissal of public officials or revocation of contracts. It was stressed several times that the Public Protector was not akin to a court of law, but Members thought that the fact that there was no appeal against the findings was problematic. Members were concerned whether enough protection was afforded to those who may be adversely affected, including whistleblowers, and what was done in an instance where a person was reluctant to answer questions for fear of incriminating himself. Members asked what the effect would be if the Rules were not followed. They suggested that a fine balance had to be found between trying to resolve matters with due speed, and protecting those who could be adversely affected. The Public Protector noted, in answer to questions, that there was still some difficulty in defining exactly what the Public Protector may or may not do, and drew attention to the wording of the Constitution, which stated that this office may “take appropriate remedial action”. Members agreed that further discussion was needed around this. Members were concerned with how leaking of information by OPP staff was controlled, and questioned when its reports would be publicised, and whether it would not be preferable to allow officials to remedy the situation before the report was disseminated, so that the remedial action taken could also be publicised. One Member expressed his disquiet that normal legal principles and standards were being undermined, and was particularly concerned that legal representatives could be present, but may not speak, despite the explanation that this was done because a public official must be accountable and speak for himself or herself. Members indicated that they would want further engagement on the rules at another meeting.

 

Meeting report

Public Protector Rules
Adv Thuli Madonsela, Public Protector of South Africa, said that her office (OPP) had engaged with stakeholders since 2010 on the draft Public Protector Rules (the Rules). The Rules therefore resulted from a long consultative and drafting engagement. The drafting process was monitored under the supervision of the Deputy Public Protector (DPP). The Rules hoped to achieve expediting of cases, through facilitating collaboration with the state.

Adv Madonsela reminded Members that the OPP sought to ensure that there was transparency and integrity in the way it did business, and that all those who dealt with the OPP understood the nature of its investigations. The OPP also sought to ensure that all those who dealt with the OPP understood the nature of investigations. The Rules would provide an opportunity for these investigations to be more closely linked to the Public Protector Act 23 of 1994 (PPA). Members of the public, as well as organs of state, should know what was expected of them during investigations. Some organs of state were not aware of some of the powers of the OPP, such as dispute resolution through conciliation, mediation, negotiation and other measures. The OPP also wanted to ensure that timelines for processes were set out, and that a better understanding of the findings could be given. It wished highlight the consequences of non-compliance. Although the individual circumstances of each case would be taken into account, the Rules would provide the overarching framework.

During the stakeholder consultation process the National Prosecuting Authority (NPA) had asked why the Rules did not apply the principles of evidence and procedure. She reminded the Committee that these new Rules were not introducing anything new, but were essentially codifying what was already in place. The OPP itself could not create new Rules, which were secondary legislation, but would decide what procedures should be followed.

She highlighted that when an investigation commenced, OPP would ask each party for its version of events. OPP had to inform any party that could be adversely affected by the investigation and allow it to respond.  The Rules mainly contained provisions around hearings, yet 98% of processes did not involve hearings, and were instead covered by Chapter 6 of the Rules, which dealt with cooperation.  Confidentiality was guaranteed in the Rules and PPA. During the stakeholder meetings, comments had been made that the time limits were not realistic, and there was no statement of the consequences should those time limits not be adhered to.

Adv Madonsela took the Committee through the Rules in more detail.

Chapter 1
This Chapter was concerned with the procedures for the lodging of complaints, resolution of disputes,; service standards, timelines and time frames for responses.

Chapter 3
Adv Madonsela said that Rules 3-4 set out who may lodge a complaint. Most people were not aware that they could approach the OPP via other pieces of legislation, not simply through the PPA. Those other pieces of legislation were noted under  Rule3(3)(a) to (j).

Rule 7 set out the format for lodging of a complaint. An affidavit or a statement would suffice for the purposes of expediting the delivery of justice. She said she would be interested to hear the Committee’s views on whether Rule 7 could undermine whistleblowers.

Rule 8 prescribed the manner of lodging a complaint, and Rule 9 provided for where a complaint could be laid.

Rule 10 provided for the late lodging of a complaint, but this was a discretional provision and not a prescription period. The OPP would be stricter about time limits, to expedite cases and avoid backlogs.

Chapter 4
Adv Madonsela said that this chapter related to the processing of complaints. There were set timelines for the resolution of cases. Rule 11(2) provided that a complainant had to acknowledge receipt within five days.

Chapter 5
Adv Madonsela said that this chapter dealt with the referral of cases to various government entities that had the jurisdiction to handle a particular matter. Other structures who could assist a complainant were also asked to assist the OPP where necessary.

Rule 16 provided for joint investigations especially where there were overlapping issues.

Chapter 6
Adv Madonsela said that this was where most problems occurred, and the reason for drafting the Rules here was aimed at ironing out those problems.

Mr J Jeffery (ANC) interjected to note that there were differences in Chapter 6 and Chapter 8 on the hard copy and the slides.

Adv Madonsela noted that there was a mistake on the documents. The slide presentation (see attached document) was correct.

Mr Jeffery said he had just realised that the slides were referring to a document tabled with the Speaker on 4 May 2011, and asked which documents had been circulated.

Adv Mamiki Shai, Deputy Public Protector, explained that the Committee’s documents were sent in November 2011, and were compiled after comments had been received from stakeholders.

Mr Jeffery said that it was unfortunate that the slides spoke to the earlier draft, before the stakeholder conference.

Adv Madonsela asked that the Committee should refer to the document handed out.

Mr Jeffery commented that he was concerned that this document had been compiled already in November, yet was only received by Members on the day before the meeting. The fact that the slide presentation did not talk properly to the document seemed to suggest that the Committee was not taken seriously.

Adv Madonsela assured Members that she did take the input of the Committee seriously. The slides could be seen as an overview. The document was submitted to the Speaker in November 2011.

Ms D Schäfer (DA) said that she was concerned that Members were not notified of the changes between the two documents, as it would be useful for the changes to be pointed out and explained.

Mr Jeffery thought that the Committee should continue. There were some changes, particularly around the rules of evidence and their application, as in Rule 30.  

The Chairperson said that the meeting could proceed but there would be a need for a further presentation.

Mr Jeffery asked why the documents were sent only on the previous day.

Adv Madonsela responded that this was a “backup”, since it was understood that Members already had received that document at the time it was tabled in Parliament. This meeting was arranged at very short notice, but OPP had agreed to appear, since this was an important matter.

Mr Jeffery said that if the document was completed in November, he would have expected an update letter at least to be sent through to the Speaker, noting the updates since the May request for a meeting.

Adv Madonsela accepted the point and took full responsibility, and hoped the Committee would accept her apologies.

She then proceeded with her explanation of the most important Rules.

Rule 19
This Rule dealt with the format and procedure of an investigation, and she noted that investigations could take the form of hearings, field work or an inquiry.

Rule 20
Adv Madonsela said that this provided for the OPP to undertake investigations on its own initiative.

Rule 21
Adv Madonsela said that this Rule provided for how communications would be made with an organ of state. A legal representative was allowed to be present and could be contacted if a state official was being interviewed, but was not allowed to speak on behalf of the state official, because it was the official who was accountable, not his or her lawyer.

Adv S Holomisa (ANC) asked if an adverse finding was made public before the affected party was informed..

Adv Madonsela said this would not happen.

Rule 22
Adv Madonsela said that this Rule dealt with the extent of cooperation. It was specified what the OPP  could do in terms of access to documentation, records, and requests that material be provided promptly. Timelines laid down by the OPP must be adhered to. If the OPP so requested, interviews also had to be attended.  She described section 7(4) of the PPA as a “friendly notice” and section 7(5) as a subpoena.

Rule 24
Adv Madonsela said that this Rule dealt with cooperation for purposes of effecting dispute resolution.

Rule 25
Adv Madonsela said that this Rule dealt with instances of failure to cooperate.

Rule 26
Adv Madonsela said that this Rule provided for subpoenas, and how they would be served.

Rule 28
Adv Madonsela said that this provided for how proceedings would be conducted.

Rule 29
Adv Madonsela said that this Rule set out the timelines and guidelines for proceedings. Fifteen days notice was usually given.

Rule 31
Adv Madonsela said that the consequences for failure to attend proceedings varied. Proceedings could continue in the absence of the person who had been summoned, or that person may be subpoenaed, or the proceedings may be postponed.

Rule 32
Adv Madonsela said that the proceedings could be attended by the person who reported the complaint, a person representing the affected party, any legal representative or state official. Other persons could also attend proceedings, but could not speak.

Rule 33
Adv Madonsela said that the hearings were inquisitorial in nature, with everyone being given a full opportunity to state their case.

Rule 34
This Rule set out how the procedure would be set out and communicated to the affected party.

Rule 35
Adv Madonsela said this Rule dealt with the closure of proceedings.

Rule 36
Rule 36(2) indicated that there was more than one manner of resolving disputes. She reminded the Committee that this could be done by a combination of conciliation, mediation and dispute resolution. 

Rule 37
This Rule prescribed how the parties must be notified.

Rule 38
Adv Madonsela noted that this Rule set out the procedure should proceedings be discontinued or a matter was unresolved. The OPP had to determine how the matter was to be resolved. A Report would be drafted.

Rule 39
This Rule referred to the resolution of the complaint in a case where the parties reached an agreement.

Rule 40
Adv Madonsela said that this Rule covered the situation where there were multiple parties or multiple complainants, and set out how these cases must be handled.

Rule 41
This Rule dealt with the consolidation of complaints, where similar complaints were laid against the same institution.

Rule 42
Adv Madonsela noted that this Rule dealt with the determinations on disclosure and said that the OPP made the final decision on the disclosure of documents

Rule 43
This Rule dealt with procedural issues.

Rule 44
This rule dealt with the confidentiality of reports.

Rule 45
Adv Madonsela noted that even if a complainant did not cooperate, the investigation could continue where the OPP could have investigated in any event on an “own-initiative” basis. This would apply particularly to complaints about the abuse of public funds.

Rule 46
This Rule provided for how parties would be notified about the outcome of a Report.

Rule 48
This Rule referred to section 182(1)(c) of the Constitution. The OPP tried to place the complainant as close as possible to the position s/he would have been in had it not been necessary for the complaint to be laid.

Rule 50
This Rule provided for the recording of proceedings in any manner.

Rule 51
This Rule dealt with language requirements, and took into account the needs of people with disabilities. Only one of the official languages was usually used in proceedings and interpreters would be provided upon request.

Rule 52
Adv Madonsela said that this Rule provided for the appearance of attorneys, should a party wish to make use of legal representatives during proceedings.

Rule 53
This Rule dealt with the consequences of non-compliance with the Rules. A person who failed to comply could be criminally charged under the PPA, and the act of non-compliance could either be condoned or could be regarded as contempt of the OPP charge.

Adv Madonsela summarised that she had given a broad overview of the Rules. She would welcome comments, especially to do with expediting of cases. She noted that the OPP was not attempting to make the proceedings too rigid.

Adv Shai added that the format of the Rules had changed to take into account some of the public comments. These Rules would serve to educate members of the public, as they essentially comprised  standards of activities rather than being overly prescriptive, and she asked that they be regarded in that light.

Discussion
Mr Jeffery noted that South Africa had not yet reached agreement on exactly what the OPP was allowed to do, and this obviously had an impact on how the Rules would be framed. The Public Protector (PP) was meant to be an ombud, and the OPP should deal with cases expeditiously, since public conduct was being investigated. There should therefore be a rapid resolution of cases. He pointed out that although the OPP could conduct investigations into allegations of corrupt activity, it could not actually recover money, as could the Special Investigating Unit (SIU), nor could it revoke a contract as only the Court had that power. The OPP was authorised to make findings. The public and sections of the media did not understand the way the OPP worked, nor its limitations.

Mr Jeffery was pleased to see that the portion that had stated that the rules of evidence would not apply had been removed. However, it was necessary to consider whether parties adversely affected had been adequately covered - for instance, did they have the right to remain silent? The effect of the OPP’s findings could be far-reaching, so there was a need to protect the parties. In this regard, there was a need to reach the balance between swift investigations, and protecting those who were adversely affected.

Mr Jeffery asked what exactly would happen if the rules were not followed. He felt that some aspects were too formalistic. For instance, a person had to send a complaint by registered mail, not simply by post. He felt that Rule 3 repeated wording about anyone being able to submit a complaint, and this needed to be corrected.

Adv Madonsela replied that she would welcome other suggestions for changes or what might be usefully incorporated, especially in respect of the audi alteram partem (everyone has the right to be heard) rule. The OPP had tried to draft the Rules in as simple wording as possible. She noted the comment on Rule 3.

Adv Shai said that the South African Police Services (SAPS) had analysed the PPA and raised issues of jurisdiction. In South Africa, the jurisdiction was quite wide, as compared to the limitations cast on other ombuds offices elsewhere in the world, especially where there was an overlap of jurisdictions with other organs of state. Amendments to the Act could be considered, as it did not provide for limitations in a similar way to other jurisdictions.

Mr Jeffery said that he was not referring to issues around jurisdiction. Instead the issue had to do with understanding of those limitations. The OPP, for example, could not dismiss a public servant, but could make recommendations for dismissal. The OPP could not find someone guilty of corruption, as only a criminal court of law could do that.

The Chairperson said that there was, regrettably, a public perception that once the OPP had made a finding, the state official would be dismissed and all contracts overturned.

Adv Madonsela said that this was the most important dialogue that the Committee should have with the PP. The Constitution provided that the PP had the power to investigate public conduct, to report on this conduct and to take appropriate remedial action. However, there was no general understanding of what “taking appropriate remedial action” actually meant. International jurisprudence provided that there was a duty on the state to implement a finding of an ombud, as a failure to do this as “a gateway to nowhere”. At the Stakeholder Forum, members of the Executive, and at local government level, agreed with the PP that government had a duty to implement the findings. The difficulty lay in the wording of the Constitution, and the drafters surely recognised the difference between “recommending” action and “taking” action, so if the OPP was to be limited to recommending action, the Constitution would surely have been worded in that way. The point had been made that a recommendation was not the same as a judgment. If there were cogent reasons for not implementing a recommendation, then there was no obligation to implement it.

Prof G Ndabandaba (ANC) asked if the Director of Public Prosecutions (DPP) could be approached directly. He asked who was responsible for letting the public know that the OPP could be approached via other bodies and pieces of legislation.

Adv Madonsela said that complaints were lodged through a general system. The DPP was in charge of early resolution. In terms of the PPA, the OPP took responsibility for informing the public about how to approach this office. The OPP also advised the public of any other appropriate forums that should be approached.

Ms Schäfer said that she was concerned with the consequences for those adversely affected. For instance, a person could actually implicate himself in criminal conduct, and she therefore asked how OPP would deal with the situation where a person might refuse to provide information for fear that he might incriminate himself.

Ms Schäfer noted some leaks of information, and also asked what processes were in place to prevent such leaking of information by staff of the OPP.

Ms Schäfer commented that Rule 7 may be a problem for whistleblowers, and asked why provision was only made for a person to make a non-sworn statement in a matter that was not of a serious nature.

Ms Schäfer pointed out that Rule 34 provided that evidence could be taken in camera, but questioned if this meant that only the witness could be present, and why this was necessary, as no doubt the evidence would be disclosed at some stage in the PP’s report.

Adv Madonsela said that if the OPP, during its investigations, came across the commission of a crime, it must, in terms of the PPA, refer the matter to the NPA or to SAPS. She said that the powers of the OPP should not be stripped by any changes to the Rules. In relation to the leaks, she noted that OPP had processes to deal with leaks, and there had not been many from this Office, although the source of leaks was always difficult to find. She noted that anyone who had an interest in the PP investigations could attend a hearing, but when certain forms of evidence were taken, certain people could be excluded from the proceedings, especially if whistleblowers were involved. In relation to Rule 7, the whistleblowers affected were those who wanted to remain anonymous. Anonymous whistleblowers were referred by the Public Service Commission. The Rule 7 procedures were in place to exclude malicious reporting.

The Chairperson said that when he was the Chairperson of the Ethics Committee, that Committee had received a detailed, handwritten, but anonymous report. The Ethics Committee had debated whether to proceed with it, and had eventually decided to do so, in view of the detailed content in the complaint.

Adv Madonsela said that the OPP would also proceed in such an instance.

The Chairperson added that the anonymous complaint would also fall under the PP’s ‘own initiative’ rule. 

Mr Jeffery asked what was the point of including so much detail under Rule 7. He thought that the OPP should be drawing a distinction between ordinary and formal complaints.

Adv Holomisa referred to Rule 45(g) and asked what happened if an organ of state did not take appropriate and remedial action.  He questioned how a report of the OPP would be issued, how and when the OPP would make its findings public, and if this was done only after the report was conveyed to the complainant, and  affected official or organ of state. He also asked if there was publication to the media.

Adv Madonsela said that where an organ of state did not implement, then Rule 48(4)(a) would come into play. The OPP would engaged with the relevant head of that non-compliant organ of state  - such as the Minister. Under Rule 48(4)(b), the matter could be referred to the National Assembly (NA).

She noted, in respect of the report, that the party implicated would be the first to receive the report.

Adv Holomisa asked whether the affected party was afforded any time to apply his or her mind to the contents of the report.

Adv Madonsela said that the affected party had to receive the report at least a day before the report was publicised. This was not a legal requirement, but was done as a matter of courtesy.

Adv Holomisa asked what the point of this was, if the affected party did not have sufficient time to give effect to the recommendations before the report was publicised. He felt that it would be more important to publicise the investigation, findings, recommendations and to state the appropriate remedial action that had been taken.

Adv Madonsela said that public accountability was very important. She reminded Members that the OPP was not a court of law. There were valid concerns around the time given to affected parties to consider the report. The OPP was interested in achieving implementation, as opposed to merely publicising the report. However, it was a legal requirement of the PPA that the report should be made public.

Adv Holomisa still felt that the affected party should be given a certain period to implement the recommendations, and only after this should the report be publicised.

Dr M Oriani-Ambrosini (IFP) expressed his disquiet that there were departures from the standards and legal guarantees that had been developed over centuries in other democracies. He was particularly concerned about the notion that normal rules of evidence should not apply, that there should be a measure of secrecy, that anonymous complaints were considered, that information could be kept confidential and right to legal representation not allowed. These Rules were, to his mind, departing from Constitutional standards. Principles must be upheld, and the last place where exceptions to this should be allowed was the OPP.  He added that the Constitutional provision that the OPP “take appropriate remedial action” probably meant that the OPP had certain powers, even if Mr Jeffery disagreed.

Mr Jeffery said that he agreed with Dr Oriani-Ambrosini, so there was a need to engage further on these fundamental points. It would be useful to compare international precedents in other similar offices worldwide.  

Adv Madonsela agreed that it would not be appropriate to allow dangerous instruments even into good hands, but said that this was in any event not the case here. Lawyers were allowed to be present, but they were not permitted to speak in all instances, because it was necessary to remember that the officials themselves, and not the lawyers, must account for those officials’ conduct. She stressed again the OPP proceedings were not the same as a court of law. OPP was a forum of accountability within the public service, to ensure that persons entrusted with public power were held accountable.

Dr Oriani-Ambrosini said that the right to legal representation necessarily implied that the person charged retained the right to silence, whilst the legal representative spoke on his or her behalf. An official would be called upon to answer questions or give evidence, and he remained disturbed that the attorney should not be able to take part in that process.

Adv Madonsela said that at the end of the day the discretion lay with the PP. However, it made no sense for a Minister – or even the President – to fail to account for his or her public conduct. They were accountable to Parliament and the OPP could be seen as another public forum.

Mr Jeffery said that no appeal lay from the findings of the OPP, and this was a fundamental issue.

The Chairperson agreed.

Adv Shai said that it was crucial to balance what came out of preliminary findings with the rights of parties.

The Chairperson reminded Members that the Rules did not require the formal approval of Parliament, and were presented for information and discussion.

The meeting was adjourned.

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