The Public Protector South Africa (PPSA) presented its 2013 Strategic and Annual Plan, noting that whilst the broad strategic vision and mission remained the same, some of the strategic objectives had been revised in response to a recent survey on the views of the public, and the impact of PPSA’s work. In the last year, PPSA received 23 350 complaints, and carried over 13 085, but because some complaints involved sub-issues, there were actually more files. It was trying to achieve better efficiency, either through better systems or more staff, or better training of investigators. There was a need to engage with state lawyers to fully explain the jurisdiction and mandate of the PPSA and also for closer engagement and cooperation between all investigative agencies. Satellite and mobile office were being expanded. A baseline survey showed awareness of the office at around 77%, but only 57% at provincial level, with 63% customer satisfaction, and around 69% positive perceptions of its work. PPSA expanded on its new centres, organisational change, including the Customer Service Charter, the plans to automate business processes, resolve complaints faster and do one “own initiative” investigation per branch, as also the increased focus on international work. Trends showed an increase in service delivery complaints, complaints of corruption, particularly bribery, an increase in Protected Disclosures Act matters and complaints of Executive unethical behaviour. There were continuing challenges around RDP houses, police brutality (which were referred to the appropriate bodies) the health sector, and workers’ compensation, pension and Master’s Office matters. The spending of additional allocations, and the budget, were explained in full. The current year’s budget was R199.25 million. Finally, PPSA set out some requests for additional funding for filling posts, Occupation Specific Dispensation and upgrades of administrative posts, video-conferencing, and support for good governance initiatives, were mooted.
Members stressed that they supported the work of the PPSA, and that any questions were asked in the context of ensuring sound Parliamentary oversight, with many Members commending the PPSA work. However, there were concerns about whether the budget was spent correctly, with queries on the spending on the Corporate Video (later amended by the PPSA), the new offices, and the glossy presentation. This led to a further question as to whether conducting of some investigations was contrary to best use of resources, particularly where Members disputed whether the investigations were appropriate. This led on to a heated debate between the Committee and the Public Protector about jurisdiction. Although Members repeatedly stressed that they were not questioning the Public Protector’s sole discretion to make decisions as to what she should investigate, but did question the meaning of the Act and Constitution in relation to judicial matters, and the effectiveness of spending, she equally firmly asserted that Parliament should not be questioning her on any operational matters, and that the Constitution and the Public Protector Act empowered her fully to act as she had. It was finally resolved that another forum was needed to debate the issues around all Chapter 9 institutions’ accountability to Parliament. The Public Protector strongly advocated inviting international input. Other questions by the Committee addressed the need for engagement with departments, the cooperation with other investigative agencies, the time taken on investigations, the rationalisation and location of offices, and communication on investigations, in light of complaints from Legal Aid and Department of Justice that senior officials were not made aware of the investigations. Members enquired if PPSA was investigating maintenance issues and the supply of sniper rifles to Libya, asked for further details on the trends, and on complaints against the Executive, and were concerned whether people approached the PPSA instead of, or after, seeking satisfaction in other forums. They asked how many complaints were received from SIU staff, if the Protected Disclosure Act needed to be amended, whether the internal tensions at PPSA had been resolved, any investigations into systemic issues at the Department of Public Works, and the outreach efforts, and suggested the need to address workflow and speed up resolution of complaints.
Office of the Public Protector 2013 Strategic and Annual Plan
Adv Thuli Madonsela, Public Protector, Office of the Public Protector, presented the Strategic Plan of the Public Protector South Africa (PPSA) to the Committee.
She cited a quotation from Elie Wiesel, Nobel Peace Prize winner and holocaust survivor, noting that the opposite, of each of love, art, faith and life, was “indifference”, and said that South Africa faced a challenge if public officials were indifferent as to how their action or inaction affected ordinary citizens. She had recently received an SMS from a complainant noting that the work of the PPSA had "given our lives back", and other similar accolades were noted, although on the other hand there were disturbing reports that departmental officials had been harassed when they had tried to persuade their departments to follow the correct procedures.
She noted that the broad vision of the PPSA remained the same, as articulated in the Public Protector Vision 2020. A baseline study had been conducted in the previous year through the University of Pretoria, which had looked at the views of the public, and the impact of PPSA’s work, and this was used as the basis for PPSA to review some of its sub-strategic objectives.
Adv Madonsela tabled the unaudited statistics for the previous year, noting that there had been 23 350 new complaints, with 10 183 carried over from the previous financial year. 20 153 were finalised, and 13 085 were carried over to the current year. She noted, however, that this did not mean that 23 350 people had complained, because what may be logged as one complaint may in fact cover a host of issues lodged by different people about issues as varied as labour, bribery, unethical conduct, service delivery and other matters, in some instances reaching 40 separate issues. The PPSA felt it had reached 48.52 million people in pursuit of accessibility and trust, but this figure accepted that some may have been reached more than once, through different media. Because everyone had the right to complain, government had a responsibility to make the necessary arrangements to allow for constructive complaint.
The PPSA had improved in the thoroughness of its investigations. Productivity had increased through new capacity and new methods of working, yet it was impossible to complete all complaints in the year in which they were received, because of the quantity of work. Although PPSA had been advised not to include efficiency targets, to avoid the risk that this posed to a negative audit result, Adv Madonsela had insisted that they must be inserted because they were relevant.
She tabled a chart showing the growing figures of cases every year, and noted that the PPSA faced an ongoing challenge around capacity. In the 2011 year, it had received 16 252 cases, rising to 20 626 and 23 250 in the following two years, although she repeated that the real number of complaints actually reported was much higher, because some cases involved multiple complaints.
The PPSA had learned several lessons. The State was increasingly using lawyers to respond to its own shareholders, and there was a need to engage with state lawyers to unlock delays. She believed that the law was clear that PPSA had a wide jurisdiction but because the state often questioned it, it would be useful for PPSA to engage with, and perhaps reach an agreement or sign protocols setting out clearly the mandate and jurisdiction. Another problem was that not every investigative agency knew what the others were doing; for instance, she was unaware of what the Hawks were current investigating, and there was not enough engagement between her office and that of the Auditor-General (AG), who was increasingly being asked to undertake investigations where the PPSA was already involved. The Minister in the Presidency had been asked to convene a meeting, and discussions were also ongoing with the Minister of Public Service and Administration and the Chairperson of the Ethics Committee in Parliament.
The PPSA had realised the need to enhance the investigations capacity and skills of the investigators. Many had now been trained in fraud matters. Another point was although ideally the PPSA would like to have regional offices, this was not affordable, and satellite and mobile offices were a more realistic option. There would be one regional office established in Limpopo, but in other cases municipalities and other agencies were being asked to assist with satellite offices.
The Baseline Survey results were tabled. Awareness of the office was only at 77% currently. Adv Madonsela expressed her concern that some people may only approach her after battling for years to get what was due to them, and said that ideally a person should be aware of her office and approach it immediately after exhausting internal remedies. Awareness of provincial offices, despite PPSA’s past efforts, was still only at 57%. Distance was a problem - for instance, in Northern Cape, the office was 700 km away from some communities. Satisfaction with handling of the complaints was assessed at 63%. On the one hand, PPSA had a good image, but not all the complainants were getting what they expected. Some investigators were handling between 60 and 150 files, and they would not be able to satisfy all. The Customer Service Charter called for better communication to complainants, particularly keeping them up to date on when they may expect finalization. About 69% of those interviewed believed that PPSA was correcting state wrongs and 68% believed that it was driving improvement in government systems. Adv Madonsela stressed that within three years from now, she hoped that nobody should have to wait so long for their matters to be settled as this amounted not only to maladministration but also a gross violation of human rights.
Adv Madonsela outlined the changes in the strategic plan (see attached document for more detail). Parliament had commented in the past about the need to rationalise service centres, and PPSA had now relocated some regional offices, as outlined, and had launched regional offices in Thohayandou, Port Elizabeth and Pietermaritzburg.
Four balanced scorecard perspectives were adopted, which spoke to stakeholders, internal processes, financial resources, people skills and culture, including leadership development initiatives and team-building. The PPSA was trying to engender a culture where the purpose of the organisation had a bearing on everything it did. The sub-strategic objectives had been collapsed from 28 to 18.
PPSA wanted to be accessible to and trusted by all persons and communities. It wanted to put up signage on 50% of the buildings, and on the roads. It aimed to produce and distribute a corporate video for corporate branding, and to foster a greater understanding of what it meant. Internally, it wanted to conduct a survey on its own compliance with the Customer Service Charter.
PPSA aimed to provide prompt justice and remedial action. It wanted to map, re-engineer and automate all identified business processes by 31 March 2013, with a special focus on improving efficiency in key processes, to decide what could be addressed by streamlining processes, and what needed more resources. The targets had been revised, so that 50% of complaints were to be resolved within three months, 30% within four months and 20% within six months. It would also be conducting training for organs of state on the Public Protector Act, and its role, process and implications of the findings.
Another strategic objective was the promotion of good governance in the conduct of all state affairs. PPSA had decided to identify, investigate and resolve one own initiative investigation per branch. The International Ombudsman (AORC) and African Ombudsman and Mediator Association (AOMA) work was now mentioned in the strategic plans. She explained that PPSA had established a centre in March 2011, which focused on capacity building initiatives for the institution of ombudsmen in Africa. The funding for this came from the African Renaissance Fund of the Department of International Relations and Cooperation (DIRCO) but the travel was budgeted for from the PPSA budget. An international relations manager would be appointed. Liaison with Parliament had become very crucial, and a trainee investigator was acting to promote this. PPSA would be conducting two workshops at the AU, with identified African states, on shared values, including good governance that was linked to peace and stability, with the idea of developing shared jurisprudence and benchmark.
PPSA wanted to achieve an efficient and effective organisation, with 80% of strategic objectives achieved within a 5.1% budget variance, and a purpose-driven organisational roll out of team building. Alexander Forbes had, in the previous year, provided services for free to help the PPSA to shape its organisation to achieve its purpose. The Chief Executive Officer was currently conducting workshops. PPSA wanted to be the "conscience of the State", ensuring that it delivered services that were fair and just to all citizens.
Ms Madonsela wanted to apprise Parliament of some of the trends in maladministration. Firstly, she noted the increase in service delivery complaints, which would undoubtedly rise still further prior to the elections. PPSA wanted to prevent people striking and rioting. There was an increase in complaints relating to corruption, and particularly bribery, and a report would be sent on this. Most of the complaints related to procurement, but there were also increasing reports that people were being asked to “buy” jobs. There was an increase in protected disclosures matters, and complaints about unethical behaviour of members of the Executive. The Reconstruction and Development Programme (RDP) systemic investigation showed continuing RDP housing challenges, around planning, procurement and allocation of houses, and she recommended that the Portfolio Committee on Human Settlements needed to be involved, since money under the rectification programme should not be needed for new construction.
Other areas of bulk complaints related to the police, particularly brutality, but the PPSA sent these through to the Independent Police Investigative Directorate (IPID) and the Civilian Secretariat for Police (the CSP). She noted that complaints of brutality extended also to metropolitan police, particularly during peaceful marches. PPSA was still receiving many complaints involving the health sector, but she had held regular meetings with the Minister and Director General of the Department of Health, who were actively addressing the problems. PPSA would be handling three systemic investigations. Workers’ compensation was another issue. The nation aimed to halve poverty by 2015, but there was a need to understand what caused poverty. She noted that one of the problems, as outlined earlier, was “indifference” of State employees whether a person received his money owed to him today or in seven year’s time – and the Government Employees and Pension Fund (GEPF) and Master’s Office Guardian’s Fund and provisional liquidation office were particularly under scrutiny in this regard.
Adv Madonsela thanked the Committee for its engagement last year with National Treasury (NT), which had helped to secure additional funding, and noted that with those funds PPSA had managed to engage 100 trainee investigators and some additional investigators, which had made a huge difference. It had also planned to set up a call centre, instead of having the toll-free number handled by the switchboard, but this would be done incrementally. Some money was spent on systems, hiring staff, and securing accommodation in a nearby building. An integrated financial management system, long overdue, was now being created. The communications budget had also been increased, to cover direct communication and the mobile office. She noted that most complaints were sourced through outreach services.
Some projects did require additional funding, but effective case monitoring was also a key issue. A case management system had been purchased in 2008, through the State Information Technology Agency (SITA), but it had been improperly thought-out and was not flexible enough to the needs of the PPSA. It had taken a long time to get it impaired, but the NT and AG had now agreed to this, and another system, more specific to PPSA’s needs, would be purchased, and should be fully implemented by the end of the financial year. This would address PPSA’s core business. PPSA was also setting up video-conferencing, to be able to talk to the team and complainants in satellite offices, and this formed part of a financial request.
Mr Jeffery noted that the last slide shown was an updated version of what was in the Committee’s pack. He asked for copies of the changes.
Adv Madonsela apologised and said it would be provided.
Budget allocations 2013 to 2016
Mr Themba Mthethwa, Chief Executive Officer, PPSA, outlined the budget, showing the allocations over the Medium Term Expenditure Framework, which rose from R183.15 million in 2012, to R199.25 million in 2013/14, to reach R230.29 million by 2015/16. He noted the figures that had been put to additional capacity, additional investigative capacity and improvement of conditions of service, and also the economic classifications, and programme allocations, in separate slides. There were nine provincial offices and their budgets were also shown, noting that they were based on population figures.
Over half the budget went to core operations, with Corporate Support Services getting 38% and Strategic Direction and executive support getting 12%. In the 2011/12 financial year, R7.5 million had been put to outsourced investigations due for completion. The adjustment budget was used for the investigator trainee programme (R3.6 million), the call centre (R1.3 million), the mobile office (R1 million) and automation and reengineering of electronic systems (R2.1 million). Staff had been increased. It was intended to hire 33 additional staff in 2013/14 and 26 in the following year. The average cost for other core posts was R215 789, and the average cost of employment for an investigator was R520 000.
Mr Mthethwa spoke to Occupational Specific Dispensation (OSD) implementation, noting that there had been some problems since senior investigators were earning more than Senior Management Service managers. This discrepancy affected all legal professional staff and it had to be corrected. The estimated adjustment costs would be around R11 million, but there were no funds available.
Mr Jeffery again complained that additional information was not included in the Members' pack.
Ms M Smuts (DA) interjected that OSD had been a problem throughout the public service.
Adv Madonsela said that significant progress had been made in balancing swiftness with thoroughness in investigations, and in expediting accessibility. She repeated that the State faced significant challenges around maladministration, which meant that PPSA faced the need for significant work. She expressed appreciation to the organs of state who did supply information on time, allowing the PPSA to conclude investigations expeditiously and come up with the right answers. She thanked the members of the public for their support, including ongoing dialogue on maladministration, good governance and the role of Public Protector. She also expressed thanks to the Committee and NT for supporting the increased resources.
Adv Madonsela noted that the PPSA wanted to make some requests to Parliament. She noted that the structure was approved by the Department of Public Service and Administration in 2011, but in order to fill all posts, R77 million was required. The Minister of Finance had also finally approved the structure but said that PPSA must fund it “from savings”. She pointed out that in an under-developed country, this was not particularly appropriate. Furthermore, other government institutions had “a lot of fat”, particularly in goods and services, and she believed that it would be appropriate to shift resources. Excluding the trainees, PPSA had 556 approved posts, but only 317 were funded, and 239 were not. 174 investigator posts cost R56 million, and there were 65 support staff posts, costing R21 million, and many of these were core investigative posts. She said she would appreciate PPSA being given the funding incrementally, even if it was not immediately available, to allow it to become fully functional.
There was, in addition to this, a need to provide R11 million more funding for OSD, to prevent brain drain. The administrative posts needed upgrading, particularly those in the provinces. R6 million would be needed for video-conferencing, but some could be funded from the PPSA’s office budget. The case management system would also require funding, although it was not yet fully coasted. If the money was not available immediately, then she would move money across from the outreach budget. PPSA had to pay licensing fees.
Adv Madonsela also noted the need for a complaints and witness support fund. In September a report would be provided under the title "The cost of indifference". Many complainants needed trauma counseling, some had lost their homes, could not afford transport back home, and similar problems were rampant, and these sorts of issues were addressed, in other countries, with witness support, and she wanted to notify the Committee that although this was not coasted, she would be working on it.
PPSA was concerned that its rent was exorbitant and it wanted to, and had already requested permission to occupy a government-owned building, which was linked to the possibility of a Constitutional Institution Precinct. It would make more sense for government to buy and convert houses.
PPSA was requesting Parliamentary support in encouraging state compliance with investigation processes, and implementation of remedial actions. Many of the investigations took far too long. Finally, she requested support in regard to good governance and integrity sector initiatives.
Mr Jeffery noted that his pack did not include the slide setting out the requests to Parliament.
Adv Madonsela noted that this slide essentially contained her notes, and she would provide it, although the information had been touched on elsewhere.
Purpose of the session
Mr J Jeffery (ANC) wanted to make some preliminary points, so that both the PPSA and the media present would clearly understand the function of the Committee. His party fully supported the work of the PPSA, and believed it was crucial. The perception in the media that Parliament, or indeed any party, was “out to roast the Public Protector” was incorrect. All questions were asked in the interests of and pursuance of this Parliament’s duty of oversight, and must be seen in their proper context.
Adv Madonsela thanked Mr Jeffery for these remarks.
Mr Jeffery said he did have a concern whether the PPSA was making the best use of resources, particularly given that it was requesting more money. With respect, the glossy presentation given to Members was unnecessary, and he questioned how much the corporate video would cost, and who it was aimed at.
Adv Madonsela responded that the documents had been presented for Parliament, not the media, and that every year the PPSA was questioned on the form that the presentation had taken, whether it was bound as a paperback, or ring-bound, or presented in a folder. She did not think it appropriate for this Committee to question how it had been done, and felt it was nit-picking.
Mr Jeffery interjected that it would have been sufficient for Members to have received the presentation by e-mail.
Adv Madonsela asked for the opportunity to reply without interruption. The PPSA was indeed requesting money, but thought it important to produce a bound report that Members could keep and quote from. In regard to the Corporate Video, the budget was R800 000. Although most other promotion material was preparing internally, this one would be done externally, and in response to the baseline study. It was intended to be played at outreach events and a professional approach was needed.
Mr Jeffery did not want to enter a debate with Adv Madonsela, but noted that nobody else was producing a booklet like this one; other entities merely e-mailed the document. Other entities, such as the South African Human Rights Commission (SAHRC) had introduced other cost-saving measures such as flying economy class, or bringing fewer representatives to a meeting.
Jurisdiction of the PPSA
Mr Jeffery agreed that the PPSA had wide jurisdiction to investigate anything. However, he had a concern as to whether its investigations were appropriately aligned to its resources. For instance the investigation “There are no Heroes” was, effectively, a dispute between the former National Consumer Commissioner, Ms Molalla, and the Director General of the Department of Trade and Industry (ditz). He believed that Ms Molalla had been forum-shopping, having apparently lost two cases in the Labour Court. He wondered if the PPSA should have investigated this at all, as it ended up defining the Commissioner’s role and clarifying HR processes, as well as making a finding that there were unfair labour practices, which he did not believe it should have done. A 54-page report was produced, and the investigation had lasted a year. He believed that the PPSA should conduct quick enquiry processes, and if it could not make a finding, for instance on criminal or labour matters or set aside contracts or leases (all to be determined by other relevant authorities) then it must not address them. He doubted if PPSA was the appropriate body to go into labour issues, such as the whistle-blower from the Master’s Office at Pietermaritzburg.
Mr Jeffery noted that there here was also a dispute between the Minister of Police and the Premier, but this was being addressed – and he thought correctly – through the court. He wanted more detail on the cases and the concerns around jurisdiction. They should perhaps be included in the Annual Report.
Adv Madonsela said that she firmly believed that no ombudsman anywhere else in the world would be asked to explain those issues, but, despite her reservations on this point, she would answer the queries or Mr Jeffery. The Public Protector Act was very clear that the choice to investigate or not should lie solely within the PPSA, with no political or other pressure being brought to bear. In relation to the “There are no Heroes” report, she, exercising her sole discretion, had believed that it was necessary to investigate the matter, and pointed out that she had been asked to do this by another investigative body – the Consumer Commission – which was also a watchdog, with the Consumer Commissioner expressing concerns that her operational authority was being violated. Although the final finding by the PPSA was that it was not, there was a still to investigate the concerns. She pointed out that AOMA and other bodies were very strict that powers be given to the ombudsman, without fear or favor, and she did not regret taking the decision to investigate, which she still believed was correct.
In relation to the matter itself, she also wanted to point out that although there were some labour issues involved, she herself had not investigated those, but had looked at questions of good governance and the relationship between a parastatal and government. Issues around the roles of the parasitical and board were raised. The whole reason for having an ombudsman was that matters should not be referred to court, given the huge costs, and she pointed out that the state was already paying “a fortune” in legal costs.
She agreed that PPSA often did take some time to address issues, but said that much of that had to do with the fact that the PPSA did not get the cooperation it needed from government. It was getting tougher on using its powers to obtain cooperation. Some departments simply sat on information that they should have given out, and she noted that often an organ of state would incorrect claim that a person had to exhaust internal remedies, when that decision actually lay with the PPSA. It was not in the interests of PPSA not to get answers timorously.
Mr Jeffery said that he was not questioning Ms MacDonnell’s authority to investigate, but was debating whether, given the shortage of resources, it was appropriate to investigate these rather than others. He was also not questioning ongoing investigations, only those already completed. “There are no Heroes” produced, in fact, very few recommendations despite being under investigation for a year. His point was whether the PPSA was doing the best it could, with the money it had available.
Ms Smuts also commented on these points, after Adv Madonsela had given her preliminary response to Mr Jeffery. She agreed that there were concerns around the jurisdiction of the PPSA and indeed also the other Chapter 9 institutions and their roles, and their accountability to Parliament. They were required to be independent, but the statement in relation to independence was not the same as that for the judiciary, because the judiciary was accountable to nobody, but the Chapter 9 institutions had to account to Parliament, through the Portfolio Committee on Justice and Constitutional Development. They must report on their performance and national functions yearly. Like it or not, the PPSA was “stuck with that”.
Ms Smuts also agreed that the question of what the PPSA may or may not investigate was difficult, and noted Ms Schafer’s comments that people were approaching it because of a loss of faith in the justice system, a very serious point. She wondered, however, if people were approaching the PPSA because they feared they might lose a court case, had already lost a court case, or were simply chancing their luck. She asked if it was correct that Ms Mohlala had lost two cases in the Labour Court and if so, surely that must have caused the PPSA to question whether it had grounds to investigate the issues still further.
Ms Smuts noted that the PPSA needed to engage with state lawyers, as suggested, to unlock, delays, but asked what exactly this meant. Last year, PPSA reported that one of the main culprits in not giving responses was the DOJ, but the matter in question involved 528 appeals not heard, which she believed was way out of the PPSA jurisdiction. Likewise, although appeals and judgments delayed were impeachable offences for a judge, they fell outside the PPSA jurisdiction. The Master's Office was again not with PPSA jurisdiction. In one case referred to the PPSA, it was alleged that the director of a liquidate company and the liquidator had made a deal to split remaining money, but the Master had given a directive that the money must be paid to South African Revenue Services (SARS), and she believed that the director who approached the PPSA was “chancing his arm” and that PPSA should never had investigated. Many complaints were frivolous and should not be investigated.
Adv Madonsela explained that this complaint had been lodged by Mr Dub, whose company was put into provisional liquidation. He had approached the Master to note that the provisional liquidators had not paid the staff, and were running down the company, instead of providing minimal intrusion to keep the company intact. It emerged that this was a widespread problem, which the PPSA had discussed with the Deputy Master involved in this particular instance, as well as the Master and Department of Justice. PPSA was investigating whether the proposals by the DOJ were likely to resolve the problem. If there was alleged collusion to exclude some creditors, or run down the company, then this went to the heart of issues around building the economy and was a matter that needed to be discussed.
Adv Madonsela repeated that the discretion whether to investigate or not lay with the PPSA - and that was universally accepted throughout the world, as seen in the UN Guidelines. The PPSA was not forced to investigate, or not, in any case, and not even Parliament could call upon her office to do an investigation. Even if Parliament was questioning the issues after the finalization of matters amounted, in her view, to Parliament attempting to impinge upon her operational independence. She suggested that perhaps a workshop was needed on this point to thrash out the issues.
The Chairperson agreed that the Committee would benefit from a workshop on these issues. The Committee had had a lengthy debate with the SAHRC recently on similar issues. He did not agree with Adv Madonsela that Parliament could not question her, and said that in fact Parliament had every right to question the Chapter 9 institutions on their decisions. A full debate was needed on the meaning and implications of section 181 of the Constitution, and how the Chapter 9s must account to Parliament. He personally had no problem with any Committee Member questioning the outcome of a particular investigation, believed that Parliament was fully entitled to do that and that the Constitution did not preclude this.
Adv Madonsela agreed that more dialogue was needed. She reminded Members that the institution of an ombudsman was not unique to South Africa, and the issues must be considered in the global context. The protection afforded to ombudsmen was supposed to ensure that there would not be any political interference. She said that there was a balance needed between independence and accountability but also suggested that this dialogue could not happen in isolation of the global context. She noted the interjection of Ms Smuts that South Africa must abide by its Constitution, but added that many other countries had constitutions similar to South Africa. She suggested that it may be useful to have a representative of the UN, who had written the guidelines on the independence of ombudsmen, present at workshop, so that there could be a proper benchmarking. She agreed that the PPSA was fully accountable to Parliament, but the content of the accountability must be decided upon, in a more academic environment. She believed that decisional independence must be isolated from Parliament, and said that her counterpart from the UK had said similar things at a recent event. Independence lay at the core of any quasi-judicial body.
Her own reading of section 181 of the Constitution was that the Chapter 9 institutions were subject only to the Constitution and the law, and must be able to exercise their powers without fear or favor and the Public Protector had sole discretion to take the decision on what to investigate. She should never be asked “Why did you investigate x, y or z?”. Whilst she accepted that PPSA had to report on its activities and functions, she did not agree that this meant she could be questioned on the decisions. She insisted that the decision whether to investigate was her own. If, in the matter being questioned by Mr Jeffery, it was felt that she had exercised her discretion irrationally, then she should have been taken on review by the Department of Trade and Industry (ditz) , not by a Member of Parliament.
She reiterated that she had not been concerned with labor matters. The PPSA had not looked at whether the contract of Ms Mohlala should have been renewed – which was a matter referred to the Labour Court – but at whether the fact that the performance agreement was not signed amounted to maladministration, and whether there was also maladministration in the dti removing staff and talking to them without the Commissioner’s consent, as also whether it was proper for the dti to ask the Commissioner about the progress on issues – in the latter regard, the PPSA decided that this was not improper as the request was not interference, but was a mere request as to whether or not matters were concluded. She took exception to the suggestion that PPSA had been making a pronouncement on unfair labour practices. The principles of what an ombudsman may decide upon were universal and she had looked to whether the actions had been lawful, just (in relation to administrative justice), right (in terms of common sense and decency). The only body that could determine whether the Public Protector was correct on this case was the court and if the Members felt so strongly, they should ask dti to take it on review.
Adv Madonsela touched upon the case of “Mrs M”, one of the cases to which Mr Jeffery had made reference. It was not a simple nor innocuous matter; the person had been battling to resolve it for eight years. In terms of the Protected Disclosures Act (PDA), the PPSA and Auditor-General were both safe harbours for whistle-blowers and should not only receive the protected disclosure but deal with the institution. The Public Service Commission (PSC) was contacted, but said the matter fell outside its jurisdiction because it did not deal with all employment matters. The Internal Assessment and Customer Service Unit at PPSA examined all matters that came in, to see whether the PPSA had jurisdiction, and whether there were any other equally competent bodies in a better position to deal with the matter; if so, if could be referred on. However, she expressed her “shock” that Parliament should attempt to tell PPSA that protecting individuals fell outside the PPSA jurisdiction. She reminded Members, in relation to whether there was forum-shopping, that an ordinary person more often than not could not afford the money and time to take matters to Court. The PPSA had not insisted upon this, and the matter, which had arisen in 2008, was eventually resolved in 2013.
Adv Madonsela added, however, that the PPSA would try to refer on many matters, particularly to the PSC, where appropriate, although not all employment matters fell within the PSC jurisdiction. Matters involving police conduct would also be referred to appropriate institutions, such as the CSP and IPID. She agreed that if, for instance, the Hawks was charged with a matter, PPSA should not have to deal with it, but ideally PPSA was seeking agreement on how much each institution would undertake.
Ms Smuts returned to the issue later, saying that she disagreed vehemently with Adv Madonsela on jurisdiction of PPSA. The Public Protector Act and Constitution were quite clear. The Constitution said, in section 181, that the PPSA “may not investigate court decisions”. The Act said PPSA may not investigate "matters involving judicial functions”, extending the Constitutional exclusions still further.
Adv Madonsela countered that when she worked with DOJ she was extensively involved with the transformation of judicial functions and the DOJ and Chief Justice had not contested her investigations, which were to do with undue delays and outstanding appeal decisions, which was an administrative process. DOJ had explained that this arose because its systems were not digitised at the time and had apologised to one complainant.
Ms Smuts wanted to put on record that the Public Protector Act, section 6, said that nothing set out above may be construed to imply that the PPSA was allowed to investigate the “performance of judicial functions by any court of law”. She would not agree that the decision whether or not to grant an appeal was not a judicial function, and it was entirely inappropriate to suggest that PPSA could investigate why appeals were not heard. The delays in judgments lay in the hands of the judiciary and Judicial Services Commission (JSC) and she would be very surprised that the DOJ shared the PPSA interpretation.
Ms Smuts said that Adv Madonsela had suggested that the independence of her decisions was under discussion. That was not so and there was not a single Member who suggested that her decision-making power should not be exercised in a fully independent way, and the Committee would not dream of discussing the content of the decisions. However, the Committee did have a right, and a duty, to see that the PPSA did not stray outside the bounds of its jurisdiction, and performed functions as it was supposed to in terms of both the Constitution and its Act.
Mr Jeffery agreed with Ms Smuts on the court issue. He noted that the delays in handing down judgments were now in the Judicial Code of Conduct.
Mr Jeffery also wanted to return to the earlier discussion and pleaded that Adv Madonsela should not misunderstand the context in which he had raised the points. He was not saying that she should not investigate matters brought by ordinary people, and accepted that she had a wide and independent discretion. However, he still believed he was quite within his rights to question whether she had used the resources allocated in the best way. He still wondered if the “There are no Heroes” report was appropriate use of resources, noting that it still boiled down to a dispute between the former Commissioner and dti, which had been taken also to other forums. This was a detailed investigation, and the Minister of Trade and Industry had no problem in implementing the recommendations, so there was little point suggesting that the dti should take it on review. The case involving the unpaid services had, by contrast, taken two years to finalise – twice the time - and it was quite a simple matter, and should have been expedited. He thought part of the reason for not doing so was that the PPSA was too busy with other items like the “There are no Heroes” report. What he was stressing was that whilst the Public Protector clearly had the right to investigate whatever was within her jurisdiction, she should focus on matters that could not be appropriately investigated by other bodies.
Adv Madonsela gave the answer to this point when discussing Government Employee Pension Fund matters later, noting that the PPSA did have a tracking system, and that the process was that all complaints would firstly go through a “triage” selection process, whereafter they would be referred on different tracks, which could include early resolution processes (another reason why she had decided to keep time-bound targets in the Strategic Plan). The former Commissioner’s matter followed the good governance track and Mrs M’s matter the service delivery track, so the one would not have affected the other. PPSA would be making improvements on its efficiency of resolution.
Adv Madonsela stressed that she had been – and would continue to be – guided by the Constitution when exercising her sole discretion. She still disagreed that the issue between dti and the former Commissioner was one of a personality dispute, let alone, as suggested, that it was similar to the personality dispute that had existed in her own office. The question of whether there should be an arms-length relationship between the National Consumer Commission and dti, and how dti dealt with staff, was not a simple labour issue. Ms Mohlala had never asked the PPSA to deal with the contract question, as this was addressed by the court. PPSA looked only at whether it was correct for the Minister not to have a performance agreement, or for the Commissioner’s staff to be removed, and whether dti may question the matters with the Commission. Mr Jeffery or another MP may think that there was minor value in the decision, but the whole of South Africa would not agree that this was a “non-issue”. The avoidance of “cowboy government” was an issue for the nation as a whole. She reiterated that she would be guided by the Constitution and everything else that she took into account, and maintained that this was an important matter.
Adv Madonsela referred to the other matter, and said that she had already indicated that PPSA would be looking into delays in its office. Mr Jeffery appeared to have changed his mind now as to whether this was a minor matter. PPSA looked into accountability and responsibility and whether the person suffered. There were constantly people who tried to pressurise her into stopping investigations, but she must be allowed to decide what to accept or reject, and that discretion should not be taken away from her. Whether the criticism cam before, during or after the event, it was not for this Parliament to say whether the PPSA should have investigated.
Mr Jeffery said that Parliament was not saying that.
The Chairperson asked Mr Jeffery to stop at that point. He thought that Adv Madonsela was being “grossly unfair”. Nobody in this Committee was saying that she did not have the right to take decisions. There was a difference in opinion, however, because where the Committee questioned the decisions, she was saying that the Committee had no right to do so. He noted that someone had recently asked him to “stop fighting with Thuli”, but he said that if he did that, the impression would be given that she and her office were beyond reproach. Perhaps she and others would like it if the sum total of the work this Committee could do was to receive the briefing on the budget and strategic plans, and to praise the PPSA for its work (which was of value) and say thank you, and that if there was anything wrong in the PPSA office the Committee would remain at arms length. He had a problem with that notion and that was the impression that the Members were getting.
Adv Madonsela countered that the Committee was debating the issue of her discretion.
The Chairperson said that nobody was disputing her discretion.
Adv Madonsela said that she thought it improper for a Member of the Committee to tell her that she should not have investigated a matter. That was why she had suggested that other bodies perhaps needed to be involved in the suggested workshop or debate. She suggested that the Committee should be asked to find out which Parliament, anywhere else in the world, had asked an ombudsman to account for why she chose to do certain investigations, and look at the results.
Ms Smuts did not agreed with that last proposal, and repeated that she still believed that the investigations into the judicial functions should not have been done.
Mr Jeffery said that he was not questioning the Constitution’s wording and agreed with her on independence. He was also not questioning her ability to make and take decisions, which she should do without fear or favour. However, he was saying that the PPSA had limited resources and was questioning if the PPSA had used them correctly. Hence, he had raised queries (see later in the report) on the presentation, video and permanent offices, as was his right, and his duty as an MP. He stressed that the PPSA was accountable to the NA.
In relation to the court matters, Mr Jeffery noted that he, as an individual, could express a view on a court decision, and an opinion that it was wrong. However, he was not questioning the court’s right to make that decision. Similarly, his questioning on the “There are no Heroes” was merely as to whether it was the best use of resources. He asked that Adv Madonsela not become defensive. This was raised in the context of what should be done on future investigations. He was not being “set up” by anyone to ask these questions. He accepted that the PPSA had wide powers. However, the reality was that everyone wanted more money, and the Committee wanted all entities to make best use of resources.
Mr Jeffery said that similar questions applied to the TRC reparations investigation, where the PPSA covered the same ground, and uncovered the same results, as Parliament, which highlighted that it would be very useful for the PPSA to have a Parliamentary Officer. He cautioned that his remarks were to be seen as suggestions for the future, and that PPSA should be cautious of those who were forum-shopping. He thought it was still incorrect for Ms Mohlala’s investigation to take a year, but the other matter to have taken two years, and said that PPSA should have used its powers of subpoena. He proposed that the PPSA should be mindful to investigate matters that were not being investigated by others, or where there were no other appropriate remedies.
Mr S Holomisa (ANC) thought that it was almost inevitable that there would be problems in interpretation on the jurisdiction of the Chapter 9 institutions. However, others had not taken umbrage when they were questioned. Parliament had a responsibility to look critically at reports presented to it, Members had to apply their minds and indicate whether, in their view, resources were appropriately used. He endorsed the views of Mr Jeffery and also confirmed that he had no problem with the freedom of the PPSA to take decisions on what to investigate, which he was not challenging.
Ms C Pilana-Majake (ANC) added that if Members were not calling upon institutions to account, then this begged the question of what role this Committee played. She noted that there may well be international protocols, but the country laws must be respected and everything must e considered in the context of the Constitution.
Adv Madonsela thanked all Members for their support and frank feedback. She fully accepted that coming to Parliament was about accountability. She had accepted the feedback and offered to discuss various matters. For the record, she said that anyone who exercised public power exercised borrowed power, and so she accepted that her office was accountable to Parliament and the people of South Africa. She had taken issue with the suggestion that Parliament should be involved in specific cases, and she would abide by this viewpoint. If something involved maladministration or ethical conduct, she should be entitled to investigate. When Parliament spoke broadly about the issues to be investigated, she wanted to stress that she would not tell an ordinary member of the public to pay from his own pocket to go to court, as this was clearly contrary to the spirit in which the PPSA was established. The State had the time and money to go to court, but individuals did not.
She responded to Ms Smuts that she was actually not disagreeing on the court issue but wanted to stress that her investigation had not gone to whether a judge had delayed her decision. She had previously not investigated matters where, for instance, a judge was accused of not recusing himself when he had an interest in a property company linked to the matter, or in cases of actual delay, but had approached the Chief Justice. Her office had, however, investigate court administration delays, such as where court records disappeared, there was a delay in securing a date for appeal or where files were missing, because this was maladministration. PPSA had never investigated whether a judge did or did not do something, and looked into only administrative, never judicial functions.
Adv Madonsela would be interested to see if the level of scrutiny that the Committee had exercised when debating the other “Justice” votes was as stringent as it had been for the PPSA. She said that the timing on the case-by-case analysis of what the PPSA was worrying to her and her team.
Adv Madonsela stressed again that she did want to account to Parliament, but wanted to discuss the question of decisional and discretional independence, during a separate event. She would ask for feedback and research from the international institute in Vienna. She agreed that international best practices were not binding, unless appropriately incorporated into national legislation but thought that South Africa should not lose the opportunity to benchmark, bearing in mind that the results would still be tested against the Constitution.
Own investigations and challenges
Mr S Swart (ACDP) said that he did not want to question any cases being investigated, but, in general, he wondered if the PPSA would investigate issues that might be in the public domain; for instance the allegations of planes landing at Waterkloof Air Force base, and misuse of state resources, and what would determine the discretionary action.
Adv Madonsela noted that the PPSA did have and would use its discretion to initiate its own investigations in some instances. It tried as far as possible not to address conduct failures, because its hands were full already. In the case of Waterkloof, there were already many informed South African agencies who were already investigating, including SARS, on why it had not been involved in customs clearance, and other agencies should also conduct investigations where necessary. Should this matter, or another similar issue, be referred to the PPSA as a complaint, PPSA would firstly question who else was investigating, and in relation to what issues, and check whether all bases had been covered. In some cases, the PPSA may start investigating, but the SIU or AG may be brought in later. In at least two investigations, the PPSA had agreed that the AG may conclude investigations, in which case she would meet with the relevant official from the other institution and be briefed throughout the investigations, as has happened in the cases of the IGI and police lease matters.
Mr Swart questioned whether there were, in principle, difficulties with the enforcement of the Promotion of Access to Information Act (PAIA) when it came to national key points. He did not want to examine any issues around Nkandla, but wanted to know whether the legislation was impeding investigations.
Adv Madonsela said that theoretically, there should not be any problems with PAIA because the PPSA was one of the bodies presently dealing with enforcement of this Act but it was presently negotiating on how this fitted in with the national key points legislation and the need to protect some information, whilst getting access to others. She could not speak to any specific investigations, nor any cooperation or impediments around them, although the final reports of the PPSA would outline any difficulties and why investigations had taken the time they did, in their conclusions. The PPSA would report in due course where it had not received cooperation.
Office rationalisation and location
Mr Jeffery was pleased to see the rationalisation of offices, taking on board the Committee's concerns, but noted that the PPSA was still intending to open more and wondered what had influenced its choice of sites. Port Elizabeth was an important office, because of the Eastern Cape under-representation, and said that it was good that the Vryburg office was moving to North West, but if another office in Springbok was opened, he thought there would be over-representation in Northern Cape. Whilst he agreed that the province had huge distances, the areas were not highly populated, and he would have thought, for instance, that Empangeni and Eastern Cape had a greater need.
Adv Madonsela responded that the Northern Cape was a difficult province, because of the distances, which were up to 1 500 km from one place to another. The PPSA had taken a mixed approach, trying to set up physical offices where appropriate. If Members did not believe the offices were best-located, she would be happy to engage with them privately, as also on which needed to be given priority. She agreed that the population was less dense, but the PPSA considerations also included the needs, distances of the PPSA from government offices, and numbers of complaints in those areas.
Mr Jeffery reiterated that he wanted PPSA to look again at the offices, and said the more populated places would have more government offices to complain about.
PPSA engagement with departments on investigations
Mr Jeffery remained concerned about two matters cited on the PPSA website. One was in relation to the Mafikeng Justice Centre, and the other on the Master’s Office whistle-blower, and he also noted the enquiry into the Truth and Reconciliation Commission restitution process. The Department of Justice and Constitutional Development (DOJ) and Legal Aid South Africa (LASA) said that their offices were not informed of the investigations until the preliminary reports were given. Had the PPSA informed the parties in advance, this would have enabled the necessary investigations in-house and quite possibly averted the need for PPSA to investigate at all. Certainly, in relation to the TRC, on which the DOJ was also concerned that it had not been notified, the information was in the hands of this Committee already. He questioned why PPSA was not informing relevant parties of its investigations, and commented that the Committee should have received notice of those as well.
Adv Madonsela responded that she would have expected Mr Jeffery to phrase his question as “Is it true that you did not inform the Department… and, if so, why”. She pointed out that it was impossible for the PPSA to investigate a matter without the parties being informed, and the person who had to respond was of course told of the complaint and asked for a response. She did not know how it would have been possible to do the investigation without informing the relevant parties – LASA and the DOJ. Had Mr Jeffery asked how PPSA informed the parties, she would gladly provide the evidence and she said it was not true that the entities were not informed of the investigation. There had been several meetings with the Minister and Deputy Minister and they would routinely receive copies of “bulk investigations”, irrespective of whether a particular meeting focused on one or more issues.
Mr Jeffery said that the Committee needed to follow up on the matter, as he would be distressed if Mr Brian Nair, Operations Executive, Legal Aid South Africa, was correct in saying that neither the Regional nor National Office was informed of the PPSA investigations. There was no response on this in the report.
Ms Schäfer agreed that it would be useful to get the proof of notification to LASA.
Ms Smuts said she regretted having to say that she believed LASA when it had claimed not to have been properly informed, as well as the DOJ, but she hoped that this was not a case of one side telling the truth, and another not. She thought it more likely that investigators, certainly in relation to the TRC matter, may have approached junior staff in a sub-department of the DOJ, and that nobody at any level of authority had been told about the exchange. It was also quite likely that Mr Nair may not have known about the LASA matter because PPSA investigators had interacted at the wrong levels.
Adv Madonsela said that the PPSA had followed the approach that any complaint against a branch would be referred to that branch, not to the Minister or Director General. More recently, it had been decided that during preliminary investigations the organ of state would be asked to resolve the matter internally, within a specified time line, before PPSA would investigate, to try to save time and resources. Ms Smuts was probably right in her analysis of why LASA claimed not to be informed. PPSA had not expected that information may not be passed on, as monthly reports were given by the provinces, which the national body was supposed to read, and the DOJ was also given a consolidated list. She would look further into the matter. It had been decided, and recorded in an MOU, that henceforth, all matters involving the DOJ would be referred to a central point, and the same applied also to the Department of Home Affairs and others.
Time taken on matters
Mr Jeffery, as a follow on to his previous question, also questioned the time taken by the PPSA. All of the reports were fairly old – “There are No Heroes” was issued in March 2012, the Privilege Report dated from a complaint made on 20 October 2010, and the “Unpaid Services” matter, which was crucial, dated back from February 2011, although in fact the incorrect calculation on pension benefits appeared to date back to 2010. This matter, which was relatively simple, had therefore taken two years. He referred back to the targets in the strategic plan and said that he was concerned that the recently-quoted reports were taking too long. This related again to his query of whether PPSA was not investigating too much, particularly where there were other appropriate forums that might take on these matters.
Adv Madonsela repeated that the efficiency targets were still included in the Strategic Plan, although the PPSA struggled to meet them, and also reiterated that PPSA was going to examine its own compliance with the Customer Service Charter, trying to tailor its processes and looking to why there were delays. A report on this should hopefully be ready by the end of July. PPSA was trying to improve the way it did business and identity what additional resources it required. Its workload was quite complex, and it would try to offload complaints to other agencies, where appropriate. She had sent through examples of some of the triage forms and would appreciate input for possible improvement.
Mr Jeffery pointed out that the PPSA had the powers to subpoena, and to enter promises and should use those when it did not get responses.
Adv Madonsela agreed, and said this was another reason why it was necessary to hold a roundtable with state lawyers, as some appeared to be unaware that PPSA was set up under an Act, with specific powers. There were internal shareholder processes, and those entrusted with power had to ask questions.
Ms Schäfer also wanted to take issue on resolutions of some matters. She had asked for an investigation into maintenance matters. Her colleague Mr D Maynier had had no response yet to a request for investigation into sniper rifles sent to Libya. She wanted to know if PPSA had made a decision to investigate these matters.
Adv Madonsela confirmed that the maintenance investigation was accepted, but at the moment PPSA had no team to deal with this. It was dealing with another issue where a group of concerned fathers had complained about discrimination by the Office of the Family Advocate, and was investigating systemic maintenance problems in Free State.
The issue of the sniper rifles was being investigated, with responses having been received to the document and information request from the appropriate body. The Department of Defence had asked PPSA to approach the Minister of Justice, who was chairing the body dealing with procurement. The information was still to be analysed, and she noted that it was in this regard that delays often occurred because of inadequate staff.
Trend of complaints
Mr S Swart (ACDP) thanked the PPSA for what it had done with the limited budget. His party was very concerned to hear of the trend of maladministration, the increase in service delivery and corruption complaints, and the increase in protected disclosures. He noted that during the course of last year, Adv Madonsela had said “(South Africa) is at a tipping point, in regard to corruption”. The current strategic plan noted that investigations related to unethical conduct, corruption and fraud were growing hugely and he asked for further details.
Adv Madonsela responded that corruption had increased astronomically, as also pointed out by the Auditor-General. In many instances, the rules were ignored. She cited one instance where one group of officials had returned from an overseas trip with R120 000 from their subsistence and travel allowance still remaining, and decided to split this, not return it. Eventually the PPSA had managed to investigate the issue, and the money would have to be repaid by July, but the PPSA remained unhappy with the way in which the department had addressed the disciplinary issues. She believed that this should not have been treated as white-collar crime, but as common theft.
Protected Disclosures Act and Protection of State Information Bill
Mr Swart asked whether there had been concerns in the PPSA with shortcomings in the Protected Disclosures Act (PDA) particularly since it only covered those in employment. He asked for any suggestions for improvements.
Adv Madonsela noted that there were programmes to try to enforce the PDA, and when she had worked with the South African Law Reform Commission there were efforts being made to amend the PDA to increase the class of people protected, and to improve the protection offered. The United Nations had far tighter protection of whistle-blowers. In practice, in South Africa, a person could not be fired for making a disclosure, but a disclosure was often followed with disciplinary actions being instituted on other, often quite spurious charges, such as arriving late for work. One gentleman had been suspended on a Friday, to prevent him from going to court on the following Monday to prevent a developer building houses without proper foundations. Another lady who was asked to, and refused to pay a bribe, ended up being blacklisted and losing the state business on which her business relied, which was a clear case of retaliatory action. Adv Madonsela fully agreed that there was a need to expedite amendments to the Act.
Mr Jeffery said that the Minister had informed the Committee that there would be amendments to the PDA and the Committee agreed this was important and wanted the matter to be dealt with urgently.
Ms Smuts noted that this was actually Mr Jeffery’s own request, not one from the Committee. She thought that there was a problem in that other agencies tasked with implementation were not always attending to matters quickly enough.
Mr Swart also noted that the PPSA had urged the NCOP to make some changes in relation to the Protection of State Information Bill and asked if Adv Madonsela would consider addressing the State President on issues that may not have been addressed in the final version of the Bill.
Adv Madonsela said that she had had several engagements with the relevant committee on the draft legislation, but had not had a chance to revisit the issue. (Her other remarks were inaudible).
Cooperation with other departments
Mr Swart said that he presumed the misunderstandings or debates around the jurisdiction of the PPSA that were raised by “state lawyers” related to parastatals, but asked if departments were also raising this in response to requests from the PPSA.
Mr Swart noted that Adv Madonsela had specifically stated that PPSA and the Special Investigating Unit (SIU) had a good cooperative relationship but she was less enthusiastic abut the Hawks, and asked to what degree it was assisting, given the high level of fraud and corruption.
Mr Swart, and Ms D Schäfer (DA) asked if the Office for Institutions Supporting Democracy (OISD) in the Office of the Speaker was cooperating well with the PPSA.
Adv Madonsela responded that PPSA had not yet requested specific assistance from OISD but had a cordial relationships with it and had always dealt with the office directly. If appropriate formal dialogue was requested the PPSA would be able to determine whether the issues could be addressed.
Ms Schäfer said that people referred many matters of corruption to the PPSA, and she wondered if the departments who were obfuscating were actually trying to stop investigations, in order to cover up corruption, or if this was a “turf war” issue. She suggested that this Committee could assist if PPSA provided regular reports on which state institutions were not complying with requests, and what the recommendations were that were being made. She noted that the recommendations were not enforceable in the sense that the PPSA could not prosecute or sue, but did want to know if those recommendations were referred to the Hawks or National Prosecuting Authority (NPA), what the feedback was, and what progress had been made.
Adv Madonsela responded that in some cases it was not just a question of turf, as the PPSA jurisdiction was often not understood by state lawyers. Some claimed that they were not an organ of state and therefore that the PPSA could not investigate. One municipality in the Western Cape had told the PPSA that it should be requesting information under the PAIA, instead of under section 7(4) which gave the PPSA the power to call for information. Often, she said that lawyers were hired by the state departments “to write things that did not make sense” but the main concern was that this involved people’s money and lives. She was hoping that roundtables would help PPSA and state lawyers to sort out their issues, and resolve misperceptions. It would be unfortunate if some departments would opt to have matters investigated by other agencies in the hope that this would put them to rest.
In relation to the Hawks question, she informed Mr Swart that the PPSA had not worked much with the Hawks, but hastened to add that she was in no way suggesting that the PPSA did not trust this body. The bulk of matters involving common crime would not be investigated by PPSA, although it could become involved in matters of maladministration, so it would work with the Hawks on some investigations.
She noted that it was hoped that the roundtable meetings with all bodies would result in better understanding and give and take. All investigative bodies had certain powers, and she was confident that they would exercise their discretion properly. One of the other reasons was that she would not like to subject the PPSA staff to “investigation fatigue” and attempt to investigate matters where another body may do so.
Ms Schäfer noted that in South Africa there was an estimated R1 billion on wasteful expenditure and R30 billion had been corruptly used. She thought that if this was addressed this wasted money could go to PPSA.
Ms Schäfer asked for an explanation of the “interest” item, asking what investments PPSA had that were earning interest.
Mr Mthethwa (Chief Executive Officer) said that this was actually a liability, not an asset, and related to the financial leases.
Ms Pilane-Majake wanted more clarity on how the allocations to the provincial offices had been determined.
Mr Mthethwa confirmed that considerations around distance, population and other aspects would be examined in deciding the budget for each provincial office.
Ms Pilane-Majake noted that there was originally a programme with a R10 million budget for Chapter 9 institutions, which she thought had encompassed mobile offices, but noted that now PPSA was budgeting R1 million for the creation of a mobile office, and asked if there was any correlation between the two.
Adv Madonsela responded that when mobile offices were first created, it came from a specific programme with EU funding, but that had since ceased, and South Africa was in fact required to repay some funds, not because they had been misused but because not all the correct procedures were followed. The money was paid to Institute for Democracy in South Africa (IDASA). There were still three mobile offices in three provinces and they had been funded out of the PPSA budget. PPSA was now looking at expanding that mobile service.
Ms Pilane-Majake was worried about the suggestion to make a Corporate Video, at a cost of R800 000. She wondered if this could not be put together at a lower cost.
Adv Madonsela noted that the PPSA had noted a budget item for R800 000, and this point had also been questioned earlier by Mr Jeffery. However, the PPSA was now mooting whether to leverage some of the corporate stakeholders (but those not involved in any state tenders) to see whether they might be able to provide the corporate video for free, and try to move the budget to the case management system. The senior management team would be looking again at costs and benchmarking. The PPSA had been told that this was apparently the cheapest deal. Only the first phase had gone out to tender and nothing had been spent yet.
Ms Pilane-Majake questioned the figures for the second phase of the IT upgrade and the upgrading of secretarial posts, asking how many posts were covered for the R3 million, and what sort of upgrades were contemplated.
Mr Mthethwa said these were senior administrative officials, who were actually similar to case officers, in the court service and support section. There were about 50 employees, and this would involve upgrades in posts, at levels 5 and 6. The upgrades would be done in conjunction with job evaluations.
Ms Pilana-Majake wondered if the PPSA was not possibly over-stretching itself in its plans for the call centre. There was already a huge case backlog and the setting up of a call centre would probably result in even more complaints and more expectations, with the potential to compound the delays.
Adv Madonsela said that the call centre not only received complaints, but it was also an Alternative Dispute Resolution (ADR) centre. Currently, the toll free number was not meeting expectations because it was handled by the switchboard operator. The new call centre may be able to free up the investigations team by resolving matters of simple delays instantly.
Ms Pilane-Majake suggested that perhaps the call centre should be run as a pilot project first.
Ms D Schäfer, and other Members, welcomed the new Deputy Public Protector, Adv Kevin Malunga, to his first meeting with the Committee.
Ms Schäfer noted that the earlier questions raised by Mr Jeffery touched on the point that PPSA was trying in some cases to avoid lengthy court processes, and there was a concern that some of the PPSA investigations might duplicate functions or be seen as an alternative to court proceedings. She was concerned that people were losing faith in the criminal justice system in South Africa, which was why the PPSA was getting more complaints. The whole justice system seemed to be lacking credibility, yet the PPSA was seen as standing firm against corruption. If the systems were improved, this might lead to a decrease in the number of matters referred to the PPSA.
Adv Madonsela made the point that the PPSA was not supposed to be a substitute for the criminal justice system, but was set up to support democracy, and she could not comment on whether more people were referring matters to the PPSA in desperation at the workings of other systems. PPSA would work, wherever appropriate, with the Hawks, NPA and other bodies. Organs of state did not generally understand that when it came to investigating corruption, the PPSA had the same powers as SAPS and Hawks, save for the power to subpoena without having to approach the court. However, there were some complaints that related to “traditional crime” and these would be referred to the appropriate agencies, to allow PPSA to concentrate on corruption of an administrative nature. PPSA could not prosecute but could handle matters until they were ready to be handed over to the NPA, although Adv Madonsela had not had a chance to reach an agreement or Memorandum of Understanding (MOU) with the NPA’s new management. It did have an MOU with the SIU and other agencies. PPSA did not want to be seen as a last resort, but as part of the system, hence the importance of the dialogue. At the moment, the only ones winning were those looting from the State.
Ms Schäfer wanted to know how many complaints were received from SIU staff members. This had been raised privately with Adv Madonsela as well, and she hoped for a response this afternoon.
Adv Madonsela responded that there were two in 2012, and two in the previous year. This had been one of the investigations that PPSA had tried to outsource, but it had not been as speedily as anticipated.
Ms Schäfer wanted to know if there had been any improvement on the tensions within the PPSA’s own office.
Ms Schäfer noted that there were a number of “bulk complaints” (such as those involving the Department of Health) but thought that investigations were warranted into the Department of Public Works (DPW), against which there were new problems reported every week. Contracts to build new courts had been stopped or delayed, there was substantial non-compliance, and this all pointed to major maladministration that appeared to be systemic.
Adv Madonsela said that although there were no specific complaints against DPW itself, there were issues clearly linked with it, such as tenders. One complainant had asked PPSA to look into every lease that DPW had entered into up to 2011, but when it was discovered that SIU was already doing this, PPSA had deferred to that body. There were specific complaints relating to KwaZulu Natal and North West.
Prof L Ndabandaba (ANC) congratulated the PPSA on the Baseline Survey Results. He asked what strategies it was developing to make itself well known in informal settlements, rural areas and townships.
Adv Madonsela responded that PPSA made concerted attempts to inform people in rural areas of its existence and aims, as part of the increased footprint and accessibility plan. Its attempts to reach out included mobile offices, leveraging of stakeholder relations with traditional authorities and other state bodies, and attempts to reach informal settlements, and stakeholder consultations in July and August would deepen this.
Mr J Sibanyoni (ANC) was grateful that PPSA had taken to heart his call for increased radio communication, noting that it had improved, and reiterating that it was a prime medium for reaching a broader range of people.
Mr S Holomisa (ANC) said that the PPSA had visited his community quite recently, but asked how many others had been visited. He quipped that he hoped the visit was not made only because of his Parliamentary connection.
Adv Madonsela assured him that no such considerations were taken into account, and she could not recall visiting his community specifically, as there had been numerous visits. PPSA would select traditional authorities where there were particular problems with IDs, houses, or other issues.
Mr Holomisa noted that the figures on how many people were reached, and the results of awareness, appeared to be contradictory.
Adv Madonsela reiterated that this had been explained because some people were reached more than once. It was probably correct that around 77% of all people were reached, although some may have heard of PPSA second-hand, rather than through PPSA’s direct communication. PPSA aimed to do outreach at the schools.
Ms M Smuts (DA) asked for more information on the complaints about executive unethical conduct, and whether this involved national or provincial levels, and how many and what type of complaints were laid.
Adv Madonsela said that she would get the full details and forward them on, but probably in the past year there were more than ten, compared to previous years where there was about one per year. This did not mean that there was impropriety as some of the cases had been decided in favour of the executive member. The complaints were at all levels, from President, Minister, Deputy Minister, Premier and MEC, but no complaints were referred against the Deputy President, except one that he himself had asked the PPSA to investigate.
Mr Jeffery pointed out that the Prevention of Corruption Act said that certain instances had to be referred to the SIU or SAPS and he was worried about overlaps between the PPSA, the PSC and the courts’ investigations.
Mr Sibanyoni asked if the statistics on complaints finalised related only to the investigations done by the PPSA office itself, or whether complaints referred to other institutions were counted as well.
Adv Madonsela responded that the complaints referred on to other agencies were also included in the figures, as the PPSA would track them and advise complainants.
Mr Sibanyoni questioned if the satellite offices were functioning, having been re-located. There were other institutions that might be able to assist, in these areas.
Adv Madonsela answered that there were still some financial constraints around satellite offices but they had been replaced with mobile offices. The satellite offices were a longer-term issue. The Outreach and Communications Officers would, for instance, go to Mobopani.
Ms Pilana-Majake questioned whether it was wise for PPSA to establish such relationships as sharing of offices with government offices, as suggested earlier, saying that the PPSA may well have to investigate those very offices.
Adv Madonsela agreed on the potential conflict of interest and said that this would have to be managed. That was also why PPSA was not keen to share with LASA. She mentioned that it was not actually sharing City offices, but was occupying some offices at Mamelodi Court.
Mr Sibanyoni said that he had referred a matter to the PPSA, where officials from the Government Employees Pension Fund (GEPF) had refused to speak to him in a matter involving questions about the validity of a will impacting upon children. The Court had decided that the will was valid, but GEPF failed to recognise or implement the order. He said he would be making follow up as he had received no feedback from PPSA.
Adv Madonsela apologised if there was no response on the GEPF matter, and said that the PPSA’s Customer Service Charter set out clearly what should be done to feed back to complainants. This brought her to the issue around governance failure complaints, and she referred to the way in which case would be tracked, through a process she had now consolidated, through the unit that would decide where the complaints should be referred for resolution. She would deal with blockages in the office and agreed that nobody should be waiting to get responses. She would report back on this matter.
Ms Pilane-Majake appreciated that comment and approach. She commented that there seemed to be a number of matters with a very long turnaround time, and she questioned the delegation of authority, and whether some reports were sitting on someone’s desk for too long. Parliament may need a report on this to assess where the problem lay.
Adv Madonsela confirmed that there was now a dashboard reporting on this. Each investigator's report should be quality-assured by supervisors, then be referred to a think-tank, then come to the Public Protector herself. The problem was still that there was a shortage in investigators. There were currently about 140 investigators, and the PPSA had a budget of just under R200 million. Some matters were regrettably falling through the cracks.
Mr Sibanyoni said that most of the people at the outreach programme in Johannesburg had been focused on problems around allocation of RDP houses, and the fact that they had later found that other people had moved into their houses. He asked how PPSA would deal with this and if eviction orders were needed.
Adv Madonsela said the PPSA had specifically asked that people not try to evict others, as that raised the potential for conflict and violence. Some of the matters involved corruption, but PPSA was sorting out the cases with the municipalities.
Mr Holomisa asked why some targets were not given the figure of 100%.
Adv Madonsela noted that the PPSA did not have the money to attend to everything and for this reason targets less than 100% were noted.
Mr Holomisa supported the idea of purchasing buildings for PPSA, suggesting this should be done soon.
Ms S Shope-Sithole (ANC) said that she liked the reference to "indifference" because ordinary people were not able to get real service from departments for precisely this reason. South Africa spoke of Batho Pele principles, yet she knew of many young people trying to act as entrepreneurs, who would lose their businesses because government departments failed to pay.
Ms Shope-Sithole was particularly appreciative of the work of the PPSA, SIU and the Auditor-General. She believed that a budget was a tool for the ruling party to exercise its policies, and she was convinced that those looting resources were the enemies of the State and the ANC, who were trying to undermine concepts of human rights. It was indeed unfortunate that corruption was being practiced by those who were supposed to be at the centre of service excellence
Adv Madonsela noted that there were also other people, including individuals in departments, who were doing much to try to halt the looting and other impropriety. She noted that one of the investigations she was involved with was a government department who had “offered” R1 million to a private agency who had not asked for it.
Adv Madonsela, in conclusion, expressed her gratitude on the feedback, which she would reflect upon further with her team. The PPSA wanted to ensure that it would be swift and right in investigating maladaministration and acting as a catalyst for change in the country.
The Chairperson expressed sincere appreciation for the good work that PPSA was doing.
The meeting was adjourned.
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