Preliminary Session with Deputy Public Protector on allegations of maladministration in the Office of the Public Protector; Criminal Procedure Amendment Bill: discussion

Meeting report

Presentation: Criminal Procedure Amendment Bill [B26-2012] – Proposal
Ms Teresa Ross, State Law Adviser from the Department of Justice and Constitutional Development (DoJ&CD), said that there were a lot of similarities between the proposed draft from the Department as well as the proposal from Ms L Adams (COPE). The difference between the two proposals was that in Ms Adams’ proposal there was no provision for where an accused was not represented during the trial and where the accused for a petition was not represented when such a petition was heard. Provision was made under clause 10 sub-paragraph (a) for where a Registrar had to forward reasons for an application that was refused. The enactment provision was corrected in the A-list. The concern from the Committee regarding the unrepresented applicant has been provided for. The Committee should be aware that the proposed draft from last week was the same as the A-list.

Discussion
Ms D Schäfer (DA) said that she was in favour of the proposal from the Department. However the words ‘only a portion of the record; should be removed.

Mr J Jeffery (ANC) said that he was worried, what percentage of petitions was not represented legally and was the Bill going to prevent any harm? There was a chance that there may be a large number of unrepresented applicants for petitions. 

Mr S Swart (ACDP) asked if the Supreme Court of Appeal (SCA) should not be consulted with as this was the next draft from the Committee.

Mr Jeffery said that the Committee was not intending to finalise the Bill today. The Committee should send the draft to the SCA. Legal Aid South Africa should also receive a copy of the draft.

Ms C Phila-Makaje (ANC) also agreed that the latest draft should be sent to the SCA. 

Mr Lawrence Bassett, Chief Director (CD) for Policy and Legislative Development, DoJ & CD, asked for the latest draft to also be sent to the National Prosecuting Authority.

The Committee agreed.

Preliminary Session with Deputy Public Protector (DPP) on allegations of maladministration into the Office of the Public Protector
The Chairperson said that a lot had been written on this matter and a lot of it boiled down to plain dishonesty. The Chairperson explained to the Committee that a written apology had been received from the Public Protector (PP).  He asked what issues the Committee felt had to be raised.

Ms Schäfer asked if Advocate Mamiki Shai, DPP, was aware of the comprehensive response drafted by the PP to the Speaker. This covered topics like what discretion was exercised by the PP for jurisdiction purposes, were there bribes paid by the DA in the Free State, did the PP pressurise the DPP into changing reports made to Parliament.

Mr Jeffery said that to the benefit of the media and especially for the Mail and Guardian that wrote the article on this matter last week it should be noted that it was the Speaker who referred the matter to the Committee at the request of the PP. Could Adv Shai run the Committee through the main issues as there were a lot of allegations and counter allegations. Did Adv Shai have any ideas on how to deal with this matter? This was not a commission of inquiry or a tribunal. Had the PP been suspended from the international body of ombudsman?

Mr Swart said that he was concerned about spending a lot of time on this matter and getting into a lot of detail on the issues. The Committee would have difficulty if it made findings on questions of fact without proper cross-examination or a proper process.  The Committee would not be able to make findings as this would mean having to conduct cross-examinations. The anonymous complaints were also a concern.

Mr J Sibanyoni (ANC) asked what guarantee or protection the Committee could afford to whistle-blowers should it call for them to come forward?

Mr Jeffery said that the meeting was open for the media to see for themselves what was going on, if it was closed then there would be reliance on leaks as the Mail and Guardian had already done for its article.

The Chairperson said that if the Committee was not a court or a tribunal then the question would be how the Office of the PP would be held accountable. Members of the Committee had gone through the documentation and they were of the view that most of it was nonsense. The Committee wanted the DPP to address the following issues: the PP’s comprehensive response to the Speaker, a letter to the international body of ombudsmen, allegations of bribery from the DA, pressurising of changing reports and allegations that friends of the Chief Executive Officer (CEO) were awarded inflated tenders. In addition the Committee wanted the DPP to shed more light into the PP’s investigations in Midvaal, staff criteria used for international trips and the alleged forgery of the DPP’s signature on a legal signature.

Adv Shai said that she was not aware of the comprehensive report from the PP to the Speaker. In the allegations from anonymous staff members it was made clear that previously overseas trips were an incentive for staff. However it might be possible that under the current PP this criteria was not used. In terms of the forged signature issue, the facts were that she had been injured and hospitalised. The CEO had visited her with her Personal Assistant (PA) and indicated that the auditors required her signature. She had refused because she was not physically well. The PA had said that everything was in order and the document was read out.  The document was in fact the performance assessment for the CEO. The document was then signed, however later it transpired that the signature was used for a new performance assessment for the CEO that was never done. This was to ensure that the CEO received a bonus. The PP had paid the CEO a bonus without any process followed e.g. motivation and a performance assessment. A month after the payment was made the forged performance assessment that was never done was filed. The matter was with the police.

Adv Shai continued to state that when the police came for a supplemented affidavit, it was discovered that one of the service providers was also pressurising the police to withdraw the matter on behalf of the CEO and he had been given cases to investigate by the PP. There were hints that friends of the CEO were involved.  In terms of the bribery allegations from the DA there was a person in the Northern Cape (NC) who mentioned that certain investigations were not conducted as payments had been received for them not to be done. The staff in the PP’s Office was grievance oriented and they did complain a lot, this was encouraged by the fraud policy approved in 2005. The anonymous letters were delegated to the DPP under the previous PP. If every staff member was interviewed then the truth would come out. It was possible that signatures were pasted on documents and that documents were manipulated. In April 2012 the PP asked the DPP to advise on the Executive Committee (ExCo) on the anonymous letters. The CEO then brought the terms of reference for the Governance and Integrity Committee (GIC). Since then the DPP had not had a PA or resources. The DPP asked the PP for recourses and the CEO for a team. The documents for the anonymous letter were later brought by Mr Marumo. When the team was appointed the CEO was one of the members, obviously one could not be privy to their own investigation. The period in which there had to be a report from the GIC was too short. The challenge was that the CEO and PP were implicated and all team members were insubordinates of the two. The decision that was taken was that the matter was to be forwarded to Parliament. There were recommendations made which were also forwarded to the PP.

Adv Shai said that when the PP received the recommendations she confronted her and was very ugly to her and said that all she wanted was for the DPP to say that she had not done some of the things in the report. After this period the DPP’s office had files removed from it as well as the records of this matter. When the PA was asked about this she stated that the PP requested the information. Most of the files, audio tapes including the fraud involving the CEO were gone.  She then wrote an urgent letter to the Deputy Speaker but there was not much assistance rendered from that office and a subsequent letter was then written to the Speaker. She would be able to prove that there was systematic manipulation of the DPP’s PA. She would be able to prove that the PP had sent altered documents to the DPP should there be an investigation. Her PA was transferred to another province and for a long time she used an intern who did not know anything about administration, she felt very victimised. The Office of the PP had no code of conduct that applied to the DPP and PP. There was also no dispute resolution mechanism. Delegations for the DPP were also a problem and managing them was difficult. The situation at the PP’s Office was unbearable and the delegation provisions in the Public Protector Act were not enough. There was also no clear divisions of what the CEO and the Deputy did.

The Chairperson asked if there was a case number for the case with the police, the police station as well as the investigating officer.

Adv Shai said that she would provide the case number later, the matter was being investigated at the Brooklyn police station and the name of the officer was Magwangwane or something like that.

The Chairperson asked when the alleged forgery occurred.

Adv Shai said that it was 13 December 2012.

The Chairperson asked when the charges were laid.

Adv Shai said that the letter she sent was dated 22 February 2011.

Ms Schäfer said that given the importance of the meeting and the serious allegations against the PP one would think that the DPP would have come better prepared. This was a concern, what the DPP had said today was nothing new. There were still a lot of vague allegations that were affecting the public’s confidence in that office. Why would the PP write another letter to Parliament after she had written a comprehensive response to the anonymous letter of complaint against her?
Why should the current PP have the same policy as the previous PP regarding overseas trips for staff members? What follow ups had the DPP made regarding the criminal case? The DA bribery allegations were serious but the information was vague, could more information be provided. Which documents had been manipulated and which signatures had been copied and pasted? The DPP had just provided the same vague allegations.

Ms C Philane-Majake (ANC) said that she was concerned about the line of questioning from the Committee, it seemed as if this was now an inquiry when it had been agreed that this would be an information gathering session. The Committee should be cautioned on the manner it intended proceeding with this matter.

Prof G Ndabandaba (ANC) asked for more insight on the pressure that was being put on the police as well as the ugly things that had been said to her by the PP. Where was the DPP when she signed the document and was not well?

Ms Schäfer said that the questions asked had to be asked for more information to be gathered and Adv Shai was expected to be properly prepared for this at least. There was no problem with the nature of the questions asked.

Adv Shai said that in the letter inviting her to come see the Committee it was a request to brief, there were no indications that there would be an inquiry, investigation etc. She would not have come without having prepared, however if there was to be an investigation then there would be more detailed information provided. On the issue of the pressure on the DPP, the PP had said that there should be a written report that exonerated her and she had said that the team for GIC was a group of assassins that sought to remove her. The PP had said that she had a “poverty mentality” and that the she was looking to take over her job. She had invited the PP to talk about these things but she did not come. To have files removed from her office without permission was an invasion of privacy, even if the PP was the head of an institution, she could not do such things. It was also not pleasant for the DPP to do all the work without a PA. When the GIC had requested more recourses there were delays and a lack of appointments. She was totally excluded when decisions were taken including the procurement of services. Should there be an investigation the medical records would be disclosed however when the CEO was there she was under heavy medication and the CEO tried to trick her into signing and took advantage.

The Chairperson asked if the relationship between the DPP and PP at a professional and personal level had degenerated irreparably.

Adv Shai said yes.

Ms Schäfer asked what Adv Shai had done to follow up on the investigation from the police.

Adv Shai said that the police had uncovered other evidence, the digital information from the computers were totally destroyed and unrecoverable.

Ms Schäfer said that she was referring to the case of the forged signature.

Adv Shai said that this was on the fraud case, the police were busy with the investigation and the digital records were destroyed. The police were happy with the evidence gathered. They were due to finalise the matter this week.

Mr Sibanyoni said that the Committee seldom saw the DPP when the PP appeared before the Committee, what were the reasons behind this?

Ms Philane-Majake said that the complaint was wide, it had to be streamlined. At what point did the fallout begin between the PP and the DPP happen. Who was part of the PP’s ExCo? Had the DPP ever registered a complaint against the PP on the lack of delegation of duties and responsibilities?  It was important for the DPP to provide proof on the allegations made? Could the DPP also indicate who the members of the GIC were?

Mr Jeffery agreed that the allegations were very wide. The compliant about the delegation was not very clear. If the DPP had executive oversight over resource utilisation, then it would have been under her watch when the CEO was doubling claims for his cell phone. Reading from the documentation it was not an issue of fraud having been committed but one of a signature obtained under fraudulent circumstances. The Committee had to have a response from the police on the progress for this matter. The allegation that there was pressure on the police was a concern and the Committee had to follow up with them. The issue of the material from the DPP’s office seemed to be for another case and not the fraud one. What were the details on this case and did the DPP report this to the police? The Public Service Commission (PSC) was a constitutional body that investigated public entities. Perhaps the matters mentioned fell under their mandate. Any financial irregularities could be investigated by the Auditor General (AG). Could the DPP also comment on the Ayeni Report, what was done with the recommendations made there? The writers of anonymous letters should be invited to make an appearance before the Committee in camera.

Ms Adams said that based on the complaints received and the DPP’s response today there did not seem to be a need for an investigation. What other resources did the DPP have under the previous PP and if so was there a complaint made. The allegations were vague, did the DPP at any stage send an email, SMS or anything documented, if not why did the DPP not do so? What was ugly to one person might be constructive to another, it was all relative.

Mr Swart said that he agreed with some of the things said. The lack of preparedness by the DPP was one of them however she had indicated that in the letter of invitation it had only stated that a briefing was expected from her. It was a concern that the Committee was already stating that there should be referrals to the PSC and AG.  The Committee would have to at least get a response from the PP first before any action was undertaken.

Mr Jeffery said that he had not said that there should be a referral only that this was something that could be done.

Adv Shai said that she had only received a draft of the comprehensive response from the PP to the Speaker; it may have been different to the one that was furnished to Parliament. In response to the question raised by Mr Sibanyoni should there be a proper investigation then evidence would be furnished. Most of the time the DPP was not invited or was deployed elsewhere so as not to attend events or told too late about them. The ExCo was supposed to be a structure where the DPP and PP took decisions together and thereafter the CEO would provide reports on where the institution was going. Today it was like a conference between different managers, it was now a rubber stamp of decisions taken by the CEO and the PP somewhere else. The managers no longer took decisions it was only the PP at ExCo. In the beginning she and the PP had a good relationship, it was only after the recommendations by GIC of which the DPP was a Chairperson that the relationship began to degenerate. The resources at the DPP’s disposal were not enough for the amount of the delegations and responsibilities allotted.   The Ayeni report was on the challenges and non-conducive working environment in the office. The report was not implemented. The PP had not approved it. It was not clear whether the cell phone double billing for the CEO was investigated. In the past the CEO used to report to the DPP in terms of delegations and then report to the PP on specific issues. Under the current leadership of the new PP the CEO reported to her. The DPP had invited the PP to sit down and discuss the issue of delegations however she was not interested in doing that.

Ms Schäfer asked why the DPP had raised the issue of the suspension of the CEO due to fraud allegations when she had recommended herself that they be uplifted. Was Adv Shai aware that the PP had been suspended from the international body of ombudsmen or of a compliant thereof?

Mr Jeffery said that there was nothing in the Ayeni report that was a direct criticism of the CEO; it detailed criticisms of the whole office. It was not clear how the DPP could not state whether the CEO had claimed double for his cell phone account regardless of whether he reported to the PP or DPP. This was a responsibility that was specifically given to the DPP. What was the undue pressure on the DPP for the withdrawal of the fraud charges against the CEO? There was an allegation made that the PP had said that the CEO had re-paid his performance bonus. What was the relevance of the information missing from the hard drive and the complaint relating to the CEO’s performance bonus?

Adv Shai replied that this was becoming a court. In the DPP’s letter of complaint there was no issue there concerning the CEO’s suspension. This allegation came from the anonymous letter from the staff.

Ms Schäfer said that this was under paragraph 13.5.4 in the DPP’s compliant.

Adv Shai said that this may have been said however she had never said that the PP was wrong in lifting that suspension. The DPP agreed with her decision. The management style of the PP was instruction based even where there were delegations. So even if one wanted to take an initiative or carry out your delegated responsibility it all had to go through her. She did not know if the CEO was investigated on the cell phone claims. She was aware that the CEO had offered to repay the bonus in instalments. The DPP’s PA was responsible for the documents and she had to rely on her for everything. The link between the hard drive and complaint was that the office was closed on 31 December 2011 yet this was when the information was removed, this information had to do with the fraud case. The PP had reduced the bonuses of certain employees and increased those of others. The Ayeni Report would have to be looked at again as she had not read it recently and would not want to mislead the Committee. She was not put under any pressure to withdraw the fraud charges against the CEO; this may have come from the document sent by anonymous staff. 

Ms D Smuts (DA) said that the Committee had been expected to read documentation of at least 6 inches; it was a powerful Committee as described in the press and a very busy one. The Committee had been expected to attend to what was essentially office politics. This was not appropriate. There should be a filter to ensure that something like this did not happen again. The DPP had not been a happy camper however her term had ended and a new DPP was incoming. The Committee had to now establish if there were any offences committed. The way forward would be paved after the Committee hds heard from the PP early next year.

Ms Philane-Majake said that she was satisfied with the information that had been gathered today. There was an allegation in the document that there was an employee in the office that did not have matric yet was earning R450 000 – R500 000, was this still continuing?

Mr Jeffery said that he would like to know from the police about this case. More information from the Ayeni Report would have to be sought from the PP. The anonymous complaint dated 9 November 2012 was a concern. It should be made clear that the Committee was nowhere near subpoenaing anybody. The CEO should clarify whether the PP had been suspended from the international body of ombudsmen.

Mr Themba Mthethwa, CEO of the PP’s Office said that there was going to be a meeting of international ombudsmen in New Zealand a few weeks ago and a whistle blower sent a complaint to this body and there were calls from these international bodies querying what was happening in South Africa, this had now become a national matter.

Ms Schäfer said that there was nothing that convinced her of a case against the PP; it was only the case that was with the police that warranted further inquests. Adv Shai should provide in writing the information that was requested of her that she was unable to provide.

Mr Sibanyoni said that the Committee should not appear to be scaring away whistle blowers by saying that their complaints would be thrown away. They should be heard behind closed doors.

Mr Swart said that the preliminary briefing was useful. One had to be careful about taking in things taken from an anonymous letter.

The Chairperson addressed Adv Shai and said that there were issues outstanding, the docket number and name of investigation officer should be emailed to the Chairperson as soon as possible. There were other matters that warranted a response in writing later on. He then went on to state that the Committee wanted to invite whistle blowers to take this opportunity to come forward as it was difficult to interrogate the staff complaint without talking to anybody. The invitation extended up until the 15 January 2013.

The meeting was adjourned.