Allegations of maladministration against Public Protector, Magistrates' salaries: Committee deliberations

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Justice and Correctional Services

11 February 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Portfolio Committee had met with the former Deputy Public Protector in the previous year to hear allegations of misconduct levied against the Public Protector, and now needed to consider how the matter should be finalised. The Office on Institutions Supporting Democracy had also submitted a memorandum to the Committee. Members noted that some administrative matters should be resolved without intervention from the Committee, but that there were other issues that did require a response from the Public Protector, namely, the state of the Public Protector’s Office in Kimberley, particularly with regard to the allegations that bribes were taken from DA officials; the procedures followed in the appointment of consultants; the progress on the Midvaal investigation; the non-functional case management system and the fact that in some cases the Public Protector seemed to have overstepped her jurisdiction. Members also agreed that it would be useful to obtain a report from the South African Police Service on the current status of investigations into alleged fraud by the Chief Executive Officer, and agreed also, after deliberations, to approach the Public Service Commission to enquire if it had any jurisdiction to deal with the Public Protector, as it was a Chapter 9 institution that would normally not fall under the purview of the PSC, although some of its staff were civil servants. It was also agreed to call for comment from the Auditor-General on the non-compliance with the Public Finance Management Act and tender processes.

The Committee also discussed how it must now proceed in relation to magistrates’ salary increments. These were supposed to be approved by both Houses, but since the NCOP had not approved the proposed increments, instead requesting that they be reviewed by the Independent Remuneration Commission, this Committee had taken the view that it did not need to do more. However, the Speaker had now requested that this Committee formally report to the House. Many magistrates were seemingly unhappy with the institutional arrangements, there were complaints that some prosecutors were receiving higher salaries than magistrates, and there were also complaints that the Commission had not followed correct procedures in the review. There were concerns, however, that if the Committee were to invite comment from the magistrates, this might run counter to the set procedures. The Parliamentary legal advisors were requested to furnish an opinion on the legal consequences and desirability of the Committee hearing representations, or putting pressure on the NCOP to rescind and review its decision not to approve increases, or the consequences of non-approval of the increments.

Members mandated the Chairperson to make the final decision on which parties would be invited to give oral submissions on the Legal Practice Bill, trying to avoid duplication of content. They also agreed that a legal opinion be sought from a constitutional expert on the tagging of the Bill.

Meeting report

Allegations of Maladministration in the office of the Public Protector
The Chairperson reminded the Committee that it had previously held a rather unsatisfactory meeting with the Deputy Public Protector (DPP) in relation to the allegations of misconduct that had been levied against the Public Protector. He also drew the attention of Members to the document sent in by the Office on Institutions Supporting Democracy (IOSD). He asked Members to comment on the document.

Ms D Schäfer (DA) stated that although there had been written responses by the Public Protector to some of the issues raised by the DPP with the Committee, it was important that the Public Protector be invited to clarify issues that were still of concern to the Committee. Many of the issues related to the daily running of activities in the Office of the Public Protector that did not necessarily need any involvement on the part of the Committee. However, in relation to other key issues identified previously, she felt that the Public Protector should be asked to give an explanation.

Mr J Jeffery (ANC) agreed with Ms Schäfer’s proposal and noted that it was appropriate that the Committee give the Public Protector the opportunity to respond in person and interact with the Committee on many of the issues raised. He also suggested that the Committee should obtain  a police report on investigations carried out following the allegations.

Mr Jeffery noted his concern that there seemed to be organisational fault lines in the relationship between the Public Protector, the Deputy Public Protector and the Chief Executive Officer (CEO). It was important that the Public Protector be asked to explain clearly the delegation of duties and powers of these officers.

Mr Jeffery noted that the slew of anonymous complaints against the Public Protector was an indication of a deficient complaint mechanism that was not properly protecting the rights of aggrieved members of staff in the Office of the Public Protector. This was a concern for the Committee and it was necessary also that the Public Protector be asked to enlighten the Committee on what steps had been taken to address and avoid this.

Mr Jeffery questioned whether the Public Service Commission (PSC) could be deployed in investigating some of the issues that had been raised, especially since the office of the Public Protector was a Chapter 9 institution. He asked what other bodies might be empowered to act if it was found that the PSC had no powers to act.

Ms M Smuts (DA) noted that the PSC was charged mainly with the administration of the public sector, and since Chapter 9 institutions were not categorised as part of the public sector, they did not fall under the purview of the PSC. However, some staff of the office of the Public Protector were in fact public servants who had been seconded to the Office, and this might provide recourse for the Committee to urge the Public Protector to invite the PSC to become involved.

The Chairperson responded that this was an anomaly which the Committee had identified and needed to address. The Committee did not have the capacity to carry out the investigations on its own, hence the need to identify an institution with the requisite capacity to assist.

Ms C Pilane-Majake (ANC) noted that the Committee did not have the capacity to investigate and deal with the complaints against the Public Protector. She agreed that in regard to the high incidence of anonymous complaints against the Public Protector, there was a need for proper investigation to be carried out. Some of the allegations and complaints were HR matters. The PSC and Auditor-General (AG) may also need to address some issues and report to the Committee. She also agreed that it would be important for the Public Protector to also appear before the Committee.

Ms Schäfer agreed that the AG should be brought on board to address complaints about non-compliance with the Public Finance Management Act (PFMA) and tender processes. It was important that the Committee demanded an update from the Public Protector with regard to the allegations on R10 million spent on a non-functional case management system, appointment of consultants and allegations that the Office of the Public Protector in Kimberley had received bribes from DA officials.

The Chairperson reiterated that the Committee should send a letter to the South African Police Service (SAPS) requesting a written report on the status of SAPS’s investigations into allegations of fraud against the CEO. The Committee also needed to clarify the delegation of powers to the DPP.

The Chairperson questioned whether the functions of the CEO were clearly spelt out in the governing Act.

Mr Jeffery responded that the Committee had been furnished with copies of the CEO’s contract and this could be explored as a pre-emptive step, with regard to demarcation of roles and functions between the DPP and the CEO. The Committee also needed to address the allegation of insufficient resources allocated to the DPP to carry out assigned functions.

Ms Smuts believed that it was important that the Committee address the issue of the Public Protector overstepping her jurisdiction, as she had apparently interfered in certain matters that were not within the purview of her Office, especially with regard to the Department of Justice and the judiciary.

The Chairperson asked Members if the Committee should write the PSC to inform it that its services might be required in the investigation of allegations against the Office of the Public Protector.

Mr Jeffery thought that it was better to engage with the PSC first in regard to whether or not it could take on some of the complaints raised against the Public Protector’s office, rather than assigning matters to it outright.

Advocate Nonkosi Cetywayo, Head, OISD, interjected that the financial aspects of Chapter 9 institutions were subject to the provisions of PFMA, so that institutions that would normally be competent to investigate financial matters were also competent to investigate Chapter 9 institutions. She agreed with Mr Jeffery’s proposal to make enquiries to the PSC on its ability to entertain the investigation.

Ms Smuts responded that it did not necessarily follow that because certain financial aspects of Chapter 9 institutions were governed by the PFMA, they automatically fell under the purview of the PSC.

Ms Schäfer added that it was clear, from the provisions of the governing Act, as read out by the Chairperson, that not all staff of the Public Protector were public servants or fell under the purview of the PSC.

Members agreed that the Committee would invite the Public Protector to address the Committee on the state of the Public Protector’s Office in Kimberley, particularly with regard to the allegations of bribes from DA officials; the procedures followed in the appointment of consultants; the progress on the Midvaal investigation; the non-functional case management system; and apparent overstepping of jurisdiction.

Magistrates’ Salary Increments
The Chairperson referred Members to copies of letters received from the lawyers for magistrates in regard to their salary increments.

Mr Jeffery explained to Members that the matter had been referred to this Committee by the Speaker. He noted that salary increase of magistrates had to be approved by both Houses. However, the National Council of Provinces (NCOP) had not approved the proposed increments and had requested that they be reviewed by the Independent Remuneration Commission (the Commission). The Committee had taken the stance that it was unnecessary for it to do anything since approval of both Houses was necessary. The Committee was however told that it should formally report to the House.

Mr Jeffery noted that the arrangements by which magistrates were placed under the Magistrates Commission was intended to protect them from undue influences, but it seemed that many magistrates were unhappy with the arrangement.

Ms Smuts noted that the Committee needed to address points raised by the magistrates that the Commission had not followed appropriate procedures in the review of their salaries.

Mr Jeffery suggested that the Magistrates’ Commission be invited to address the Committee. There had been unhappiness that some prosecutors were apparently earning more than magistrates. The Committee could request the Department of Justice to furnish the Committee with information on salaries. Although the Committee should not cross-examine the Commission on its decisions about the remuneration, it was important that the Committee get insight into the processes followed to arrive at that remuneration.

Ms Smuts raised questions on the timeline, saying that it might be counterproductive to the magistrates’ ability to claim for and be paid retrospective salaries.

The Chairperson agreed that this posed a major challenge.

Ms Schäfer agreed that this matter was urgent and concurred with the suggestion to invite representatives of the magistrates to meet with the Committee.

The Chairperson questioned whether inviting the magistrates to meet with the Committee defeated the purpose of an independent commission, and whether this might not be construed as an example for all entities falling under the Independent Commission to challenge decisions made by the Commission.

Ms Smut responded that, procedurally, the decision of the Commission could in fact be challenged.

Ms Schäfer opined that the Committee needed urgent legal opinion from the Parliamentary Legal Officers on the possible outcomes of any decision it may reach.

Mr Jeffery suggested that the Committee could, alternatively, consider approving the increase and pressurise the NCOP to rescind its earlier decision and also approve the increment.

The Chairperson reiterated that it was important to hear the magistrates’ representations, so that the Committee could get a clearer picture of what they wanted.

Ms Schäfer mentioned that the dispute had some history to it and was not as simplistic as it looked. The whole regime needed to be overhauled.

The Chairperson suggested that the real issue was that magistrates wanted to be regarded as judges and were leveraging on the current dispute to achieve this.

Ms Pilane-Majake thought that the main point was the allegation that some prosecutors earned more than some magistrates.

Members finally agreed that the Parliamentary Legal Advisors should be asked to furnish an opinion on what the consequences might be if the increment was not approved, and the option that the Committee might approach the NCOP to request that it review and rescind its earlier decision on the increment, and finally on the suggestion that the magistrates make representations before the Committee.

Legal Practice Bill: Public hearings

Mr Jeffery requested that a list of proposed presenters of submissions on the Legal Practice Bill should be made available to Members. He also suggested that the Committee seek a legal opinion from a constitutional expert on the tagging, to avoid the situation where an incorrectly-tagged bill might be referred back by the President

Members agreed with the suggestion.

The Chairperson added that it was important that the decision of the Committee with regard to the tagging be put into writing.

Ms Schäfer requested that the legal opinion should also address what remedies, if any, the Committee had on re tagging.

Members also agreed to try to avoid the situation of hearing several presentations that duplicated content, and agreed that the Chairperson, with input from Members, should make the final decision on which parties should be asked to give oral submissions.

Committee minutes
Members noted that the minutes of the previous meeting were not available. After discussion, they requested that Members should be furnished with draft minutes within a week of the meeting being held, or before the next meeting on the same issue, whichever date was earlier.

The meeting was adjourned.


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