Office of Public Protector on its 2011/12 Annual Report

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Justice and Correctional Services

10 October 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Public Protector informed the Committee that the report focused on maladministration as well as the trends that had been spotted. During the course of the financial year 20 626 cases were handled, 5 603 were carried over from the previous financial period. The Public Protector finalised 16 763 complaints of which 10 183 were carried over. The number of cases finalised had increased from 14 148 to 16 763 which was an improvement. The Public Protector furnished the Committee with a provincial breakdown of cases per provincial investigator.

The total turnaround time for complex investigations was between one to six months for 58% of the cases and 28% was resolved between seven to twelve months. A further 14% of cases were resolved after twelve months or more. 56% of cases were upheld meaning that there had been injustice or maladministration. 20% of the cases were not upheld. No conclusion could be drawn in 24% of the cases. The highest number of cases emanated from the following state entities: the justice cluster, municipalities, the local and provincial entities, the Department of Home Affairs, the agencies under labour, the police cluster, the provincial and national government for human settlements, the South African Social Services Agency, the Department of Education, the health services; South African National Defence Force, Department of Agriculture and Department of Transport.

The Public Protector received an unqualified audit with two matters of emphasis. The first was on the case management system and the second was the takeover of the leases from the Department of Public Works which resulted in a R5 million shortfall.

The Committee discussed the following topics: what the spread of investigators was per office; what trends were developing as spotted through the investigations; the nature of the staff complement and why it was not rationalised according to population numbers per province; the nature of the complaints for departments and state entities such as the Master’s Office; requested more information on the proposal for a single precinct for the Chapter 9 Institutions; questioned the accuracy of the case statistics as it felt that there were some discrepancies. The Committee suggested that a separate report for those departments that failed to respond to the Public Protector should be submitted to their corresponding portfolio committees in Parliament and that such reports must be detailed. Members asked if the allegations made by Mr Malema that he was found guilty in absentia by the Public Protector, were true. The Public Protector’s method of prioritising cases was questioned. The Committee debated whether it was appropriate for the Public Protector to be involved in political party events.

Meeting report

Office of the Public Protector 2011/12 Annual Report briefing
The Public Protector of South Africa, Adv Thuli Madonsela, said that the report focused on maladministration as well as the trends that had been spotted. The Public Protector handled 27 376 cases last year. The cases were a mixture between complaints presented to the office as well as own initiative cases. There were 5603 cases carried over. In the year under review there was an additional 20 626 cases. 16 763 complaints were finalised, 10 183 complaints were carried over. The Public Protector (PP) carried over more cases during the current financial year than previously. A lot of the cases carried over were received towards the end of the year. There were more cases this year so far. The number of cases finalised had increased from 14 148 to 16 763. 10 183 cases had been carried over so far to the current financial year. The early resolution branch had nine investigators and a workload of 1516 cases making it a caseload of 168 per investigator. The Auditor-General (AG) had said that the PP had to revise targets for early resolution cases and set the finalisation period to 6 months. Investigations were divided into cases that related to conduct failure and service delivery failure. The service branch had 9 investigators and they dealt with 675 complex cases with each having to handle 78 cases. The good governance and integrity branch dealt with conduct failure. Each investigator in the good governance integrity branch handled about 36 cases. The total case load carried over per province was 3476 in the Eastern Cape (EC) and the staff complement was 12; in the Free State (FS) there were 2497 cases and 8 staff members; In Gauteng there were 11 staff member and 2497 cases; in the KwaZulu Natal (KZN) there were 11 staff members and 4000 cases; in Limpopo there were 11 staff members and the case load was 1390; in Mpumalanga there were 9 staff members and 1908 cases; in the Northern Cape (NC) there were 1786 cases; in the Western Cape there were 13 staff members and 2511 cases and in the North West there were 13 staff members and 2974 cases.

Most of the cases were resolved within one month which was 46% of the early resolution cases, 14% was resolved within two months. The total turnaround time for complex investigations was between one to six months for 58% of the cases and then 28% was resolved between seven to twelve months. A further 14% of cases were resolved after twelve months or more. 56% of cases were upheld meaning that there had been injustice or maladministration. 20% of the cases were not upheld. No conclusion could be drawn in 24% of the cases. The highest number of cases emanated from the following state entities: the justice cluster, municipalities, the local and provincial entities, the Department of Home Affairs (DHA), the agencies under labour, the police cluster, the provincial and national government for human settlements, the South African Social Services Agency (SASSA), the Department of Education (DoE), the health services, the South African National Defence Force, Department of Agriculture (DoA) as well the Department of Transport (DoT). The PP held 878 clinics, 259 mobile clinics, and 111 information sections, 78 radio slots, 58 newspaper articles, 96 collaborative activities with other state entities, conducted 2 surveys, five national events and one good governance week. Under strategic objective two most of the cases were resolved through Alternative Dispute Resolutions (ADR).

There were eight systemic investigations that were identified, 3 were resolved and eight were carried over. Systemic investigations were labour and research intensive. Alexander Forbes assisted the PP at no cost in terms of maximising its potential as a purpose driven organisation. The PP had obtained an unqualified audit report. There were a few matters of emphasis; an action plan to resolve this was approved by the AG. The Human Resource (HR) plan was reviewed and implemented. The structural plan was also reviewed and would be implemented should there be financial support for this. Workshops were held on customer service. The turnaround times had improved. The PP ideally wanted to conclude matters within six months as they were still hot and contracts could be reversed at that time. The response protocol targets were missed by three months. The previous Rules were streamlined and divided into rules and guides. Timelines for investigations under the Executive Member’s Ethics Act were not finalised. The PP could not establish a call centre due to financial constraints however it was busy engaging with National Treasury on this. One of the key problems was that government departments did not entrench good governance and principles of administrative justice in their day-to-day operations.

Mr Themba Mthethwa, Chief Executive Officer for the Office of the PP, said that there were two matters of emphasis. The PP had engaged Treasury on the Case Management System (CMS). A further issue was the going concern of the R5 million as a result of the leases that the PP had to take over from the Department of Public Works (DPW). The payment of suppliers within 30 days was being addressed. The PP was still lagging behind in terms of the implementation of the Occupation Specific Dispensation (OSD). The cost of living was currently at 7%.  

The PP concluded the presentation by thanking the Committee for its support where the PP had asked for more funding. The PP’s gratitude also extended to the Department of Justice and Constitutional Development (DOJ&CD) as well as National Treasury.

Discussion
Mr J Jeffery (ANC) said that it was difficult to assess the information given in the report. This related to the staff complement, the information provided made it difficult to know what the spread of investigators per office was. Was the over-concentration of resources in the North West continuing? What did the other staff members of the PP do besides the 137 investigators? The slide with the information relating to the entities against whom the public laid complaints was also not useful as it lacked details. Next week the Committee was going to see the Master’s Office and there was no information that would allow it to determine where the problems were. The PP’s Office was not making use of Parliament; it was no use coming to Parliament to ask for more money, more substance had to be given as to what the problems were. Why were the more populated offices not having more offices and staff? The PP had the power to refuse complaints, was this power as per the Public Protector Act being utilised enough? Were matters relating to the police and pension funds being referred to the various pension fund ombudsmen and the Independent Police Investigative Directorate (IPID)? What was happening with the coordination with other Chapter 9 Institutions? Did the PP really need a call centre, could it not look into working with Legal Aid South Africa (LASA)? Everybody else had reported that they were going to have the 1%, 2% and 3% budget cuts over a three year period; the PP had not informed the Committee of its budget cuts.

Ms D Schäfer (DA) asked what the specific systemic investigations were. The PP should add another category to its caseload which would be cases ignored since I had asked whether there was going to be an investigation into the maintenance issue which was a problem in this country. Could the PP confirm today whether there would be a systemic investigation into the maintenance problem? How many of the justice complaints relate to police not doing what they were supposed to do such as not taking on investigations etc? Would the PP consider doing a systemic investigation into this problem with the police? Were there any particular departments that did not cooperate with the PP?

Ms Philane-Makaje (ANC) asked what the major obstacle in finalising complaints was or finalising cases, it seemed like only half the cases had been finalised. What were the percentage figures for provinces on finalised cases and cases carried over?

The Chairperson asked if technically the PP was bankrupt given the AG’s comments in the audit report.

Adv Madonsela replied that the problem highlighted in the AG’s report was one that was carried over from the previous financial year, the figure was R11 million. The money related to the leases, the PP initially did not pay for its leases but as from last year the Department of Public Works (DPW) said that they would no longer pay for the leases. There was no budget for this. The rationalisation process was undertaken with the view that certain offices could be closed as they would be served by head office. The office in Newcastle was being re-considered as well since the administrative capital was in Pietermaritzburg. Satellite offices were being considered. The post office could be used as a location for satellite offices since other ombudsmen did the same thing. The PP was using Parliament and wanted to work together in assisting government do its work properly. More information would be provided if need be.

Mr Jeffery said that the bottom line was that the Chief Master was coming before the Committee next week, what would the Committee say to him regarding the problems detected by the PP....nothing, because the Committee had nothing. The PP had indicated that there were problems with LASA and the Committee had already seen them but was not aware at the time that there were problems. The PP should provide information on the Department of Justice and Constitutional Development (DoJ&CD) ahead of the meeting next week, in this way the PP would be assisting Parliament i n its oversight function.

Adv Madonsela agreed and added that as Departments were required to add the findings of the AG in their reports, they should also add the findings of the PP as well. The PP did not investigate matters that it need not investigate. The assessment intake team considered whether there was jurisdiction, if so the next question was whether the PP should use discretion in taking on the investigation. If a matter was more than two years then it was investigated whether there were compelling reasons for why it should be investigated. Matters were referred to relevant bodies. The PP had to still work on the rationalisation process and close all outstanding gaps.

Mr Jeffery said that there should be a separate category for where there was jurisdiction but the PP exercised her discretion.

Adv Madonsela said that in the Annual Report discretional matters as well as jurisdictional matters were discussed on page 9 specifically.

Ms M Smuts (DA) referred to page 23 of the Annual Report and said that this was an example of a matter which should not have been investigated by the PP. The matter dealt with a complaint against the Western Cape Department of Health. If there was one place where there was no cry for better health services it was in the Western Cape. Where did the complaint emanate from? Somebody should have picked up the phone and contacted Theuns Botha, the head of health, and this would have been sorted out.

Adv Madonsela replied that the matter of the Western Cape Department of Health was an own initiative investigation. Usually an own initiative investigation will come from either general complaints from community members or a newspaper article that an investigator had picked up. The matter is then referred to the head of the province and from there it is referred to head office.

Ms Smuts said that it was wonderful that the people of South Africa had confidence in the office of the PP especially during these times. The PP was increasing the levels of cooperation with other Chapter 9 institutions and this was good.

Mr Jeffery said that he noticed the staff complement was just put up on the board, which was unfortunately the staff complement but not the existing staff. It’s alarming that the most populated province Gauteng had dropped, yet the least populated province NC had the most staff, this was bizarre.  

Adv Madonsela said that the posts were as things presently stood. The posts also included  the temporary appointees. The NC had the highest staff complement because Kuruman moved from the North West to the NC. Secondly NC was a small province population wise but it was very vast.

Mr Jeffery said that the same still applied for North West where the staff complement was also too high.

Adv Madonsela asked the Chairperson to allow Mr Jeffery to wait for the answer as she was about to get to the issues raised. Another contributing factor was that there was urgency in ensuring that every province had senior investigators meaning that everybody had the same number of investigators regardless of provincial size. Mr Jeffery was correct about Gauteng; however a lot of areas in that province had been absorbed by the National Office of the PP. The PP was planning to ensure that each province had a service delivery branch, an early resolution branch and good governance and integrity branch. The idea of a singular call centre for all the Chapter 9 Institutions would be worth investigating. There had been discussions of sharing a precinct and there had already been drawings a document that talked to this.

Ms Smuts asked if the PP had said that the Chapter 9 institutions were already taking cases for each other.

Adv Madonsela said that this was something which was in the proposal and was being worked on. At provincial level there were forums amongst the Chapter 9 Institutions. There were bilateral agreements which were renewed every year. The good governance programme was looking at strengthening synergies. A framework for collaboration was also being established.

Ms Smuts asked whom the PP was interacting with as these institutions accounted to Parliament.

The Chairperson said that Ms Smuts would recall that Adv Mushwana, Chairperson of the South African Human Rights Commission (SAHRC), had confirmed such discussions and that the SAHRC on behalf of the collective would be meeting with DPW to discuss these matters.

Ms Smuts said that there was still a political question where somebody had to say yes or no.

The Chairperson said that the idea of having the Chapter 9 Institutions in one precinct to make them more accessible came from Members of the Justice Portfolio Committee previously. Government would have to make the final decision, the Ministers of Justice and Finance would be obviously involved.

Ms Madonsela continued with the other questions and said that the PP had identified R360 000 that would be cut and redirected to another priority. The PP had pleaded to not receive any cuts for the upcoming financial years. Since its inception the PP had received powers that went beyond the traditional powers of an ombudsman and this had created a heavier workload. The PP had been engaging with Treasury to state that there was a need for more money. The PP would look into giving a response to the questions raised by Ms Schäfer; the PP’s office had agreed to have a systemic investigation on the issue of maintenance. Police misconduct and brutality were forwarded to IPID however service failure was investigated by the PP. There was a worrying trend where people were saying that they reported a matter but it was not reflecting on the police’s record, the PP had undertaken to investigate this as a systemic issue but not this year.

Ms Schäfer asked if the PP was referring to police statistics.

Adv Madonsela said that this was in reference to failure to investigate properly and was not on the records. The PP should perhaps submit a separate report on which departments were non-responsive. Some departments responded by saying that they did not fall under the jurisdiction of the PP. There were currently systemic investigations on the following: RDP houses, alleged illegal conversion of panel vans to taxis, grade R practitioners in EC, Unemployment Insurance Fund (UIF) benefits in Gauteng and complaints from mostly men about the Family Advocate’s Office. The PP also investigated who was responsible for a particular service as opposed to whom a complaint was laid against. The PP definitely had capacity problems. One of the problems behind delays in the conclusion of cases was that some departments gave flippant responses and others were late in their responses. The PP received 20 000 new cases last year and the finalisation figure was 16 000 plus, this was more than 60%. The PP was looking into ensuring that those who had a bigger caseload would receive more staff. The PP would provide more information on the municipalities against whom a lot of complaints had been laid.

Mr Jeffery referred to page three on the third slide and said that the figures did not add up. The PP stated that there were 5603 cases carried over from the last financial year, there were then 20 626 new complaints. The total was 26 229, yet the presentation had that 27 376 cases were investigated, there was about 1000 complaints missing. Where were the determinations of the PP in accordance with Section 3(11) of the Public Protector Act? Was Mr Malema given an opportunity as required by Section 7(90 of the Public Protector Act? The broader question was whether the PP was making a difference and an impact? The Committee had been looking at obtaining an understanding of rising trends from the PP. This was something that had been stressed over the years that the PP was not telling the Committee who was not performing. The PP had to provide information on the entities that the Committee exercised oversight over and similarly for other committees as well to show what the problems were e.g. had the PP had an engagement with the Home Affairs Committee on the problems facing DoH. The Committee and the PP seemed to be talking past each other.

The Chairperson added that such reports should have detail.

Ms Schäfer added that a separate report for those departments that failed to respond to the PP should be submitted to their corresponding portfolio committees in Parliament.

Adv Madonsela replied that Parliament and the people of South Africa as well as the government are the ones who had to say whether the PP was making a difference; so far the feedback was that the PP was indeed making a difference. From where the PP was sitting there was a difference e.g. through the Against the Rules report and the Executive Ethics Matters. As a result of the afore-mentioned reports government became aware that DPW was dysfunctional including government’s leasing programme. Treasury then immediately issued new Regulations for tenders above a certain amount to be overseen by Treasury itself. When the PP produced reports it focused on the systemic problems.

Mr Jeffery said that the issue for example was that the PP had all these issues involving the DoJ&CD, what could the Committee say to them? Obviously the PP was making a difference but was this enough of a difference. The PP could make more of a difference if there was a more substantive engagement with parliamentary committees.

Adv Madonsela said that the information would be provided in future. The idea of engaging with various other portfolio committees was an excellent idea. The Committee should be aware that the PP did engage with provincial legislatures as well as provincial executive committees. The report to the AG referred to the figure of 26 000, when the AG audited the figures 1147 cases were pulled out. The cases transferred from one area to another were the ones that created a distortion.

Mr Jeffery said that it appeared that there were duplicate cases then so that one case coming from KZN to Gauteng would be recorded by both provinces yet it was the same case.

Adv Madonsela said no, the counting would include that there was processing of the case.

Mr Jeffery said that it would be a duplicate.

Adv Madonsela replied no, there were 26 000 cases but within these 26 000 cases there were cases that moved from one place to another. This was the AG’s insistence. There had not yet been a determination by the PP in terms of Section 3(11) of the Public Protector Act as the current benchmarking was in accordance with the public service. When the PP was founded it was deemed to not have the capacity to determine its own salary scales. With the advice from the AG the PP was going to now migrate. On the issue of Mr Malema the Committee should knows that Mr Malema was not telling the truth. In page 160 of the Report the process was laid out very clearly. Section 7(9) of the Public Protector Act outlines that if there was going to be an adverse finding against a particular person then they had to be informed. A provisional report was given to parties involved in a dispute. The PP was interviewed by various news agencies asking for an indication of the contents of the report and in each case the response was no. Mr Malema on the other hand told the whole world that he received a provisional report and now he says he was not informed.

Adv Madonsela continued to state that the provisional report was given to Mr Malema on 3 August; Mr Malema then came to the PP’s office  on 13 August and complained that he had not been interviewed and noted that there were potential adverse findings against Ratanang Trust. The PP responded on 14 August that the purpose of provisional finding was that there may be findings against Mr Malema or a company of interest to him, the letter that accompanies a provisional report referred to Section 7(9) of the Public Protector Act. Mr Malema responded in writing to state that he would not like to be interviewed after being asked to be interviewed the letter of the 14th. In the report there was not anything that referred to Mr Malema specifically. The report referred to a Ratanang Family Trust and a Ratanang Farm having been bought. All this information came from bank statements submitted to the PP by the sole director of On Point Engineering.

Mr Jeffery said that the problem may relate to the interpretation of Section 7(9) of the Public Protector Act. The issue was that in the draft report there was a preliminary finding, surely before the PP reached the stage of drafting the preliminary finding all sides affected should be interviewed in general. The Ratanang Family Trust was Mr Malema and his grandmother, should there not have been an interview prior to compiling the provisional report.

Adv Madonsela said that Mr Jeffery was correct in that the PP should interview people before any findings were made and that’s what it does. The activities of the Ratanang Family Trust were not investigated but those of On Point. The directors of On Point were called in for an interview and they elected to send Mr Gangwa and two lawyers. If On Point wanted to make Mr Malema part of the meeting they would have done so. Based on the bank statements submitted by On Point it became clear that a lot of the money went to Ratanang, Ratanang Farm and Sundowns property.

The Chairperson asked if the PP would recommend or was recommending that criminal charges be laid.

Adv Madonsela replied that the PP had recommended that criminal charges be laid. The matter had been referred to the National Prosecuting Authority (NPA) and the Hawks as a matter where suspicious activity should be investigated.

Ms L Adams (COPE) said that a few months ago Minister Blade Nzimande accused the PP’s Office of being selective now Mr Malema had said that the PP did not hear his side of the story. Another member of the public a property tycoon had just made the same allegations. On what basis did the PP decide to investigate the Malema issue or On Point matter, on what basis did the PP prioritise investigations.

Adv Madonsela replied that she wrote to Minister Nzimande asking him to specify in which investigations was the PP being selective, till this day there had been no response from him. The day that Minister Nzimande furnished proof then this House had to investigate given that Section  181(3) provided that organs of state had to support Chapter 9 Institutions and not undermine them. Complaints were not filed centrally at the PP’s Office; this was done at various centres. This then came through the intake and assessment process where the PP could say that rejected matters should not have been rejected. The PP was mostly concerned about rejections. The PP did not really interfere. Once the PP had established jurisdiction it then decides if it would handle the case or another institution would do it. The matters that then come to head office were received by the intake and customer service team who did their own assessment; the PP would then sit with them and consider the cases. The matter was then given to the branches who appointed an investigator. When it came to resolving cases speedily the process depended on the capacity of each investigator. The Malema investigation took more than a year. The PP does not prioritise cases depending on who was involved.

Mr S Sibanyoni (ANC) asked what the PP’s views would be if it was said that she should not be seen to attend functions of political parties.

Adv Madonsela said that she did not attend a DA meeting but a Democratic Alliance Women’s Network (DAWN) meeting because it was a women’s wing that dealt with issues facing women. This was a women’s rally. There were no political speeches. The PP was happy to be advised and engage to ensure that at the end of the day the office was seen to be neutral.

Mr Jeffery said that government officials were not meant to speak at political party events, DAWN was a political party event, and would the PP speak at a Youth League event on Youth Day on the rights of the youth for instance? This would not be appropriate.

Adv Madonsela said that she would have attended an ANC Youth League event if it was purely on rights. The PP was a public office bearer and not a public official and if the rule that excludes such persons from attending political party events existed then it should be pointed out as to where it existed.

Mr Jeffery said that it was not a rule; the reason why it should not happen was because of perceptions. It was naive that a youth or women’s component of a political party was not seen as part of a political party.

Adv Madonsela replied that now the decision was discussed as a team but now that there was this kind of outcry from the ANC this would be taken into account.

Ms Schäfer asked if the PP attended the centenary celebrations of the ANC.

Adv Madonsela said that she did attend. From now on the PP and its team was considering such matters from a perceptions perspective as well as taking into consideration any other relevant factors.

Ms Schäfer continued to say that it was important to debate this and also perceptions were important as well. At the end of the day the PP went to an ANC and a DA function.

Mr Jeffery said that for the record the ANC event was attended by a large number of heads of state and the PP did not speak there whereas it did at the DA event which was a form of participation and lending credence to it.

Adv Madonsela said that a stakeholder had said in her defence that attending the DAWN event was part of being accessible as part of a constitutional requirement.

The Chairperson thanked the Public Protector and adjourned the meeting.

Meeting Adjourned.

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