Public Protector on its Annual Report for 2012/13

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Justice and Correctional Services

14 October 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Public Protector SA (PPSA) presented the Annual Report for 2012/13, reflecting that the same concerns about accessibility, independence, use of alternative dispute resolution (ADR) and impact still remained relevant four years after the Public Protector (PP) had assumed office. The Constitutional and statutory mandate was outlined, and six of the mandates were briefly described. The PPSA could investigate maladministration, including abuse, unjustifiable exercise of power, capricious or discourteous conduct, improper or unlawful enrichment, corruption, and could enforce the executive ethics code. The PPSA also enforced the Prevention and Combating of Corrupt Activities Act (POCA), was a safe harbour for whistle-blowers under the Protected Disclosures Act (PDA), could review decisions of the National Home Builders Registration Council and resolve disputes under the Protection of Access to information Act. The purpose of the investigations had to be borne in mind, and PPSA had come up with a draft vision to be “a conscience of the state, to act with integrity and fairness”. It had received a budget of R183.6 million, had 284 staff members, and was responsible for oversight of over 1 000 organs of state. In this year it had handled 37 770 cases during the year, with 25 860 new cases. 22 400 cases were finalised, and it had issued 24 reports, although it was noted that PPSA tried, wherever possible, and where there was not a need for a systemic investigation, to solve matters at source without needing to issue reports. It was thought that it had reached 51.3 million South Africans. It had heeded advice from this Committee not to open more offices but was making use of outreach and mobile services and agency agreements. 

Service failure remained a major problem, ranging from indifference to systemic problems, and conduct failure covered non-compliance to corruption with a new phenomenon noted of “scope creep” and escalation of cost on tenders. Public hearings were held into the RDP investigation, and some positive results had been seen from the premiers and provincial legislatures. Anther systemic investigation was done into health with public hearings between July and September. The workload had increased and it was shown that each investigator handled far more than the ideal, with about 200 cases. Only 295 of the 556 positions were funded. It had received an unqualified audit, but with matters of emphasis on failure to reach targets, the case management system, supply chain matters, compliance on tax clearances. It had achieved 76% of targets, with those not achieved relating to the strict turnaround times. The PPSA requested intervention from Parliament in supporting the request for additional budget of R31.8 million, which would be put to extra staff, Occupation Specific Dispensation and expansion of the footprint. PPSA was constantly seeking better ways to work and trying to ensure implementation of recommendations. It asked that Parliament look into the growing levels of indifference in the public service, note that corruption endemic and huge, and ensure that ethics frameworks were tightened, and disciplinary actions were consistently applied. In the future, the PP would like a discussion on the meaning of the Constitution in relation to her mandate and enforcement, and support for the African Ombudsman and Mediators Association and Research Centre.

Members held extensive discussions on principles and specifics. Several commented on the adverse audit findings which were particularly unfortunate since PPSA itself was supposed to be setting a prime example, and asked why the budget requests should be supported in view of the fruitless and wasteful expenditure and leadership’s failure to monitor sufficiently. One Member made the point that remedial action plans were not sufficient and said consequences for wrongdoing must be imposed. Members questioned why the PPSA did not simply drop its unattainable targets. Some debate ensued on the scope of the PPSA powers, in terms of the Constitution and PP Act, with Members maintaining that Parliament was fully within its rights to raise questions handled on specific matters, as it did also to other Chapter 9 institutions, found it “bizarre” that PPSA should be investigating a Parliamentary committee, whilst a new Committee Member expressed surprise that the mandate was still under debate so many years after creation of the body. It was clear that no agreement could be reached immediate on the divergent interpretations of both the legislation and on what “state affairs” and “higher purpose” were, and after the views were outlined, with some vigour, with the Committee pointing out that it was perfectly well aware of the background and the provisions, it was agreed that this was a discussion that should be held at a future date. The PPSA said it would have no problem in accounting to Parliament, through the Speaker, but maintained that it did not agree on the Members’ assessment of matters not to be investigated by the PPSA, which included Parliament itself, other Chapter 9s, and labour matters, as similar instances had been investigated since inception of the Ombud. One Member commented that without South Africa developing national ethics, it would be impossible to solve problems of indifference, although mediation could play a part. Members asked what might happen if Parliament did not agree with remedial actions proposed, and how decisions were enforced. They questioned if the PPSA had any idea why cases were becoming increasingly complex, asked to what extent it worked with other law enforcement or corruption authorities, how it avoided any conflict, noted that if a case was being unduly delayed, Parliament must exercise its powers and step in. One Member referred to a statement made by the PP a few months back that corruption was at “tipping point”, noted her current assessment that it was “at crisis level”, with perhaps the most worrying issue that the public was no longer shocked at corruption, and questioned whether an increase in budget would actually help to address that. Members suggested that not enough prosecutions followed serious crime, and that disciplinary actions were inconsistent across government. Members also raised question about whistleblowers, suggested that it made sense to increase the capacity of law enforcement agencies to recover ill-gotten gains as well as prosecute criminally, and thought a tightening of the law, as well as more public awareness, was needed. Members also asked when the Nkandla report was expected, whether PPSA was intervening in two named hospitals, for follow-up on a pension matter, called for investigation into land claims, and asked about training of employees.
 

Meeting report

Public Protector 2012/13 Annual Report
Ms Thuli Madonsela, Public Protector, started her presentation on the Annual Report by reading part of the poem on the “road less traveled”, and also referred the Committee to comments made in the United Kingdom, when a new Ombudsman appeared for the first time before her Committee. This reminded that committee of the prohibition around discussing individual cases, Ms Madonsela had reflected on her own four years of service, looking back over what the Committee had raised with her before. In her first meeting with this Committee, it had noted its concerns with accessibility, independence, use of alternative dispute resolution (ADR) and impact of the Public Protector South Africa (PPSA). Those concerns were all relevant still. PPSA tried to balance recourse to the individual with transformation of the system. She was committed to ensure a balance between vigour, thoroughness and swiftness.

The Constitutional mandate of the PPSA was set by section 182 of the Constitution. The PPSA had the power to investigate any conduct in any organ of state that was alleged to be improper or that resulted in impropriety or prejudice. The PPSA mandate covered the whole state and the public administration sector. It had to report and take appropriate remedial action. It had the additional powers and functions prescribed by national legislation. It may not investigate court decisions. It must be accessible to all persons and communalities. Its reports must be open to the public unless there were exceptional circumstances requiring confidentiality. She wanted to emphasise all of this, because there seemed to be some confusion on what PPSA actually did.

The PPSA had additional powers and functions prescribed by national legislation. However its powers were derived from the Constitution, not its own Act, and the statutory mandate must be read in addition to the Constitution. There were about sixteen mandates in all, but she wanted to speak to six.

The first related to maladministration under the Public Protector Act (the Act), and it included abuse, unjustifiable exercise of power, capricious or discourteous conduct, improper or unlawful enrichment. It included the anti-corruption mandate. Section 8 of the PP Act gave her the power to make “findings”, as opposed to the “determination” in most other countries. She explained that in most other countries there was a separation between the finding and what followed. The second key statutory mandate related to enforcement of the executive ethics code in terms of the Executive Members’ Ethics Act of 1998, and the power to investigate other ethical lapses, under the Public Protector Act.

The third related to enforcement of the Prevention and Combating of Corrupt Activities Act, which was a shared mandate. The fourth was that the PPSA was a safe harbour for whistle-blowers under the Protected Disclosures Act (PDA). PPSA had the power to review decisions of the National Home Builders Registration Council (NHBRC). Finally, it had the power to resolve disputes under the Protection of Access to information Act (PAIA).

Ms Madonsela wanted to engage with the Committee about the purpose of the organisation. Last year, PPSA had started a process around leadership and team building to ensure that everything done was informed by a purpose, as opposed to being merely administrative. The Constitution required it to investigate, report and take appropriate remedial action, but it had to ask for what purpose. She noted that her staff members had come up with a purpose statement that the PPSA should be “A conscience of the state to act with integrity and fairness”. PPSA should be the only conscience of the state, but must ensure that the state was fair. President Mandela had noted that even the most benevolent of governments were made up of people with propensities for human failings, and the rule of law would ensure that it was not left to the whims of individual rulers to decide what was good for the populace. An essential part of the state architecture was the Chapter 9 institutions.

In the 2012/13 year, PPSA received a budget allocation of R183.626 million, some of which was granted only later in the year. There were 284 staff members in this year. PPSA was responsible for oversight of over 1 000 organs of state (primarily departments, but this might include several centres, particularly in health and education). It would often try to get matters resolved internally first. It had, during the year, handled 37 770 cases during the year, with 25 860 new cases. 22 400 cases were finalized, and she believed that the productivity had increased by 5 600 cases. 13 995 were carried forward; some of these cases were received only shortly before the end of the year. The PPSA had issued only 24 reports, a decline on the previous year, but this was not a negative aspect, for if the PPSA managed to solve a problem, and there did not appear to be any need for a systemic investigation, it would not write a report. That showed the extent to which the PPSA had gravitated towards ADR.

PPSA had conducted four media briefings. She calculated that it had reached 51.3 million South Africans (this included those reached more than once, and through various media as well as direct contact through outreach initiatives). 49% of the complaints were upheld. It conducted 893 outreach clinics. She also listed some other events, which were held to ensure that the PPSA became more accessible to the public and they included outreach, training, and dialogue.

Ms Madonsela listed some of the recurring matters that were investigated. Service failure was a major problem, and it could range from indifference to systemic problems. She had discussed indifference in some detail in April, and she reiterated that this implied an official not caring whether s/he handled a matter properly, including making people wait for service delivery. Examples of systemic failure included poor planning, deviation from procedures and systems collapse, or failure to implement the findings from a forensic audit. More elaboration was found in the Annual Report. The second category related to conduct failure, and this covered non-compliance to corruption and would include tenders. A new phenomenon was “scope creep” where a project would escalate hugely, often because it was under-quoted in the first place.

Ms Madonsela repeated that the PPSA had become more accessible, primarily through outreach; it was not possible to become physically accessible because of budget constraints. PPSA had heeded advice from this Committee and it had shifted its emphasis from opening more offices to instead having more mobile offices and more outreach initiatives, as well as agency agreements with organisations such as the Post Office, where there was agreement in principle just awaiting signature of a Memorandum of Understanding (MOU). 

The RDP Investigation was a systemic investigation into RDP housing, after a flood of complaints had been lodged about the housing maladministration. Public hearings were held in July and August 2012, and this gave a greater opportunity for engagement and allowed the PPSA to solve some problems immediately without even having to open formal files, because it could engage directly with key stakeholders. There had been hundreds of complaints, and key fault lines included maladministration, poor planning, procurement problems, incorrect allocation and post-allocation practices, including provision of title deeds and sale of houses. PPSA had held fruitful engagement with the Portfolio Committee on Human Settlements, which had agreed to integrate the PPSA observations into its oversight, and with Cabinet. Although it was receiving new complaints, it had hoped that the old ones would not recur. The PPSA had engaged with premiers and legislatures, and indicated that it would be an indictment on them if the systemic problems continued, and one province had thereafter literally gone and counted houses, to check on contractor numbers and quality. Others had not done much other than tightening their administration, but regrettably some matters were still falling through the cracks. She was hoping to have the provisional report by year-end.

Another systemic investigation had been commenced into health. A systemic investigation had been concluded on child mortality, with pilot projects in Free State and at Baragwanath hospital. PPSA was aware of the concerted efforts of the Department of Health (DOH) to deal with issues, and the DOH had agreed to partner with the PPSA to try to integrate its observations into the work already done. Public hearings took place between July and September and there were fruitful report-back sessions with legislatures. It had not managed to engage yet with the legislature of North West, nor with the whole legislature in Gauteng. Spot checks on some health facilities by the portfolio committees there had revealed similar problems. The systemic investigation would deal only with maladministration.

Public Protector Rules had been finalised and adopted by Exco of the OPP. They would be submitted to the State Law Advisers for gazetting and they would be brought to Parliament before they were issued.

Mr Themba Mthethwa, Chief Executive Officer, PPSA, spoke to the resources. The workload had increased over the years, as indicated in the attached graphs. A full table set out the cases by province, and the numbers of cases handled by each investigator. Ideally, for complex investigations, six to nine investigations per annum should be handled, and 15 to 25 cases per month on early resolution (ER) matters, but it was actually closer to 200. PPSA had a vacancy rate of 3.7%, far below the norm, but of the 556 positions in the structure, 295 were under-funded, which was an indication that PPSA was actually under-resourced.

He set out tables of annual budget and expenditure (see attached document). The PPSA had received an unqualified audit opinion, with matters of emphasis on the case management system and supply chain matters and on compliance on tax clearance certifications. Note 29 in the Annual Report reported a misstatement on figures, but this had been corrected. There were also some problems with the lease figures, and that resulted in the decrease of R5.8 million in the accumulated surplus.

PPSA had achieved 76% of targets, and the 24% not achieved were related to the strict time limits that the PPSA had set for the turnaround time on cases. PPSA was engaging with the unions because staff felt that these targets were too high, but PPSA wanted to abide by its commitment to the people. Case management also affected targets.  Additional funding to increase investigative capacity was requested from National Treasury. There had been concerted engagement with the staff.

Mr Mthethwa said that the tax clearance certificate finding led to a finding on compliance, but he would not go into this in detail. Management Action Plans had been drawn, that envisaged training to officials implementing supply chain management, and the PPSA would be reviewing and monitoring compliance.

Ms Madonsela gave her closing remarks. In relation to PPSA not meeting all strategic objectives, she wanted to explain that there had been suggestions, including by the Auditor-General (AG) that the time lines should be extended, and although that had been done with the ER cases, she had been very reluctant to do so. For them to have any impact on the public, certain cases needed to be swiftly finalised. Some investigators had objected to signing performance agreements because they felt that the timelines  for finalisation within 12 months were impossible. In all fairness, the staff carrying the good governance fairness and integrity investigations could probably only complete six of these cases per year. PPSA had, in this year, employed trainee investigators, which had made a huge difference, but was experiencing a very high turnover as it could not pay them much. Part of the PPSA request for funding was in order to increase their salaries.

She set out some key priorities on which PPSA requested immediate intervention. It was vital to address the budget constraints. During the budget plan discussions earlier in the year, the Committee had become a little side-tracked and had not really examined these issues in full. She asked that perhaps two Members of the Committee (one from the ANC, one from the opposition) and a technical expert from the Office of Institutions Supporting Democracy (OISD) should perhaps come and spend time in the PPSA offices to see the workload. A more scientific assessment was needed on what the office was doing, apart from a focus on ER matters only. In 2010, Parliament had approved the structure and agreed to additional resources, but in 2011 there had not been so much focus on what resources were needed. PPSA probably needed double the staff that it had at the moment. Support was also needed on Occupation Specific Dispensation (OSD) and the expansion of the PPSA footprint.

On a conservative estimate, she asked that PPSA be awarded an additional R31.8 million, broken down into upgrading salaries of existing personnel, to bring them to levels commensurate with their responsibilities, upgrading of other administrative posts (R3.2 million), OSD (R11.5 million) and new posts (R17.02 million).

Ms Madonsela reflected on the lessons learned. There had been a significant increase in the number and complexity of complaints. This included overcharging, overbilling, tender rigging, corruption and systemic failure. The complexity of cases often required teams of investigators to be set up, which took them away from other work. She believed that productivity levels had increased. However, there were continuing challenges on balancing swiftness and accuracy. PPSA was constantly trying to improve its own skills and finding better ways to work.  It was assisting municipalities, provinces and affected national departments, and most reports had been implemented, but in one case the report was not implemented for fear of opening the floodgates. The parties had agreed that there had been an injustice, but the question was how to avoid negative results.

From its oversight work, the PPSA had realized that systemic administrative difficulties mostly related to lapses in compliance. She recommended that Parliament should look into the level of indifference. When people abused money, people had to be held accountable and the same should apply when they had abused fellow human beings. There had been some improvements – for example, in the South African Social Security Agency and Department of Home Affairs – but duplication of ID documents had dire consequences for individuals and poverty. Problems around corruption and tender rigging were endemic and enormous. Local government was a particular problem, not only because of human behavior but also due to policy gaps and the South African Local Government Association was being asked to assist with a municipal toolkit. Government had been requested to tighten its ethics framework and to have training to reach a common understanding on ethics, and she was appreciative of the Parliamentary Ethics Committee willingness to engage with the PPSA. There was still not enough consistency in the application of disciplinary action.

Ms Madonsela suggested that the Committee and PPSA needed, at some future date, to discuss section 182 of the Constitution, read with the relevant sections of section 181. She made this recommendation after engaging with SCOPA; there had been engagements around a common vision of the right way to deal with the matters, including enforcement. This would avoid debates on when to “red card”. PPSA wanted to ask for the Committee’s support, should it encounter any failure to implement remedial action; this had not happened so far, other than delays caused by seeking clarity, but this had later been resolved with the Premier taking responsibility for the matter, together with the MEC for Local Government. She would also like the opportunity to discuss and finalise the Public Protector Rules. Lastly, she requested Parliament as a whole to support the African Ombudsman and Mediators Association (AOMA) and the African Ombudsman Research Centre (AORC) centre that had been created in Durban, which was doing research on the Ombud institutions in Africa, as part of the solution to good governance. A summit would be held in December.

Finally, Ms Madonsela thanked this and other Parliamentary committees for their support and opportunities to engage, the Speaker of the NA and Chair of the NCOP, the four presiding officers, other Chapter 9 and 10 institutions, her staff, and the people of South Africa. She hoped PPSA was contributing to a state that was thoughtful, acted with integrity and was fair.

Discussion
Audit findings
Ms M Smuts (DA) said that one of the challenges was the adverse audit findings by the Auditor-General. For the first time, there was a finding on procurement process. This was very unfortunate, particularly given the position of PPSA  in finding against other people –Helen Zille had been lambasted for poor management with the procurement process. PPSA had now done something remarkably similar and that could not be allowed to pass. She wanted more comment on what exactly went wrong.

Ms D Schäfer (DA) asked for more comment on the Annual Report page 197, which she felt had been glossed over. The money owing by the Constitutional entity was not always paid in 30 days. There was fruitless and wasteful expenditure. Leadership did not monitor fully and although it was stated that leadership developed a plan to address internal and external audit findings, the implementation of that plan was not monitored. She wanted to know what the plan was, and why PPSA felt that it should be entrusted with extra money if the PP was not monitoring.

Ms S Shope-Sithole (ANC) said that the question of leadership was vitally important in the PPSA’s own office. She was not happy to note the Auditor-General’s comment that leadership had not exercised proper planning and monitoring and this had led to fruitless and wasteful expenditure. Ms Madonsela would have to take that responsibility herself. This Committee had the job of holding the executive to account, and in this case this meant holding Ms Madonsela to account. She would like her to take greater charge of what was happening and not delegate this to her staff.

Ms Shope-Sithole was also concerned at the fact that non-compliance could have been prevented if matters had been properly reviewed and monitored. Especially since the PPSA was checking on compliance with others, it should be above reproach in that regard. She noted that the Management Action Plan said that there would be training to officials, that the office would implement supply chain management and review and monitor compliance. However, there was nothing said on consequences. She believed that training was not sufficient and insisted that consequences had to be imposed.

Ms L Adams (COPE) noted that there had been fruitless and wasteful expenditure by PPSA of R13 million on the case management system, a substantial amount. She asked about the reasons, who was responsible for that and if it was recovered.

Ms Madonsela responded that the R13 million related to a case management system purchased in 2008. She had indicated earlier that she was appointed in September 2009. For her first three years there had been constant engagement on the problems of that case management system, whether it could be fixed, but the AG had now decided to impair it and make a finding that it was fruitless and wasteful expenditure, from the start. The PPSA was now looking at replacing it.

The poor planning took place between 2007 and 2009. When the AG’s IT team was paid to audit the system as an independent expert looking at whether it was properly built to certain specifications, the team found that it was actually a data management, and not a case flow management system. There was a fault, therefore, in signing it off. She explained that a case management system should be able to monitor cases from start to exit in the system, and this system had not been able to do that, ever, although she was not sure that she would have impaired it, as it had some benefits as a data capturing system. SARS had been asked to look into the system and the supplier, SAPS, and had concluded that the fault essentially lay with the appointment of an incorrect implementing partner who lacked capacity. The entire cost f the system was impaired, because of the inherent inadequacy against purpose. The PPSA had now secured a process engineer, with assistance of SARS, to look at business processes and a tender had been issued. PPSA hoped to install a proper case management system – perhaps following Commission for Conciliation, Mediation and Arbitration systems, or using models similar to the Ombuds’ offices in UK and Singapore – shortly.

There were also some other issues raised in the audit report, but she assured the Committee that they did not translate to much money. Some suppliers were not paid within 30 days, and some were paid when there were no tax-clearance certificates. This was something that related back to previous years and PPSA had not appreciated that copies of tax clearance certificates may not be used. There were no cases of money being spent inappropriately. The PPSA was trying to make savings in order to be able to refer more money to the investigations. The only area where it had tried to spend more – was salaries to try to retain staff. The Chief Financial Officer and Supply Chain Manager had already been poached away by other entities.

Ms Madonsela conceded that, despite these comments, she accepted that she had of ensuring that the office was functional. There would be training done for those staff who had violated supply chain management rules. The training would ensure that people would remember what had to be done and putting new policies in place was another part of the solution. She was in the process of employing a compliance officer, this should have been done by June but the competency test results for this person were not satisfactory and the post was still being filled. There was a small supply chain office and capacity would be improved.

Non-compliance on targets
Ms Smuts said that the AG had said that the reason for missing targets was not that the targets were too high, but because targets were not suitably developed during the Strategic Planning process. The answer was not just more money. If achievement of targets was not monitored continuously, she did not think that giving more money would necessary help.

Ms Schäfer said that the PPSA surely knew that the targets were too high in relation to the staff available, and questioned why they were set in this way.

Ms Madonsela said that targets not achieved related to the turnaround time on cases. The AG had advised that the deadline dates be changed, to ensure that they could be met, but she herself, overruling her team, had been reluctant to do this. Her team asked why she was still insisting on the time lines. She understood that a person handling 100 files could not be asked to complete all investigations in one year but it was difficult to set the targets. Eventually there was agreement to negotiate with the Union and to look at new targets. Business process engineers were being seconded from SARS to look at the systems and perhaps the decision would be taken to give some investigations a much longer time frame. She had been trying to insist that ER matters be settled in three months and others in a year. The public still expected to have matters finalised earlier rather than later. In other countries, with more staff, the ER matters were finalised within one month and difficult matters within six months, and in some countries the deadlines were stated in days. It must be remembered that the more matters aged, the more difficult to get them finalised.

Ms Schäfer said that the PPSA had admitted that it was not even meeting the current targets, so changing the targets would not be the only solution. Perhaps some time frame between the AG suggestions and her own might be acceptable.

Ms Madonsela emphasised again that there was a problem  with the performance agreements. PPSA would have to revise its strategy until it obtained more resources, despite the fact that it had been trying to benchmark against other countries.

Scope of powers of PPSA: Constitutional and statutory powers
Ms Smuts welcomed the request for a discussion on the scope of the powers of the PPSA. She wondered why Ms Madonsela had quoted Dame Mellor. Nothing in the PP Act prohibited matters being discussed in Parliament, and she did not believe this quotation was apposite. She would not be alluding, in this discussion, to a matter relating to another committee, as the Chairperson of that committee was not present. This Committee routinely raised questions on matters handled by other Chapter 9 institutions, and challenged why certain matters were taken on. She repeated that the PPSA was accountable to Parliament, and the PPSA must justify the performance of functions.

Mr S Swart (ACDP) appreciated the good work being done already the PPSA, and agreed that whilst the PPSA and Committee might differ on remedial activities, it was important to look at this, and the resources at the disposal of the PPSA. He asked if, in principle, the PPSA could fairly be expected to carry out its mandate without sufficient resources, which led back to the question of where they were being allocated.

Ms S Shope-Sithole (ANC) thanked the PPSA for the good work that was being done. She was particularly impressed with the initiatives to speak to Premiers, Councillors and Chairpersons of Committees, because no matter how any institution was being supported by its own staff, it would not be effective unless leadership was doing its work and she believed that the right approach was being adopted.

Dr M Motshekga (ANC) said that, as a new Member of the Committee, he was taken aback to hear that there was still, four years after Ms Madonsela took office, some confusion on what the PPSA was supposed to be doing. Twenty years into the democracy, South Africans should understand the Constitution. He agreed with Ms Smuts that a definition was needed on “state affairs”. Secondly he wondered what “higher purpose” meant – was the PPSA the conscience of the State or the people and what was the difference between the State and people? This related also to the question of resources. If there was not clarity on the mandate, then there was a problem also in deciding whether fewer or more resources were needed. He thought that there were governing principles in the Constitution that should assist, but apparently they had not.

Firstly, this Office was to “strengthen constitutional democracy” He believed that strengthening did not imply substituting, and if strengthening meant taking over functions of the other institutions the mandate would be broader than envisaged. Secondly the body must be independent and act without fear, favour or prejudice. He thought that it was complying with this. A third principle was that there should be no interference with the PPSA work and he believed that this as not happening. The PPSA was entitled to assistance from other state organs, but he was not sure if it had been well-assisted, because if it had been, he would have expected there to be more common understanding on the scope of the work. However, another important point, as made by Ms Smuts, was that the PPSA was accountable to Parliament and had to justify its definition of the scope of the work, as well as justify the request for resources. The amounts requested might be justifiable but if the scope was not agreed upon, then there was a problem. The scope must be settled first before determining the amounts. Finally, he pointed out that, if after this dialogue it was decided that the path followed to date was wrong, then the question was how to undo the 30 years of work.

Dr Motshekga was puzzled by Ms Madonsela’s statement that the PPSA exclusively derived its powers from the Constitution. His reading of the Constitution was that it did indeed give power, but it also empowered Parliament to further regulate that power with national legislation, which included giving the additional powers in the PP Act. He questioned her conclusion that powers came exclusively from the Constitution.

Ms Adams noted that there was much discussion around the powers and where they were derived. She noted that a very important interpretation of that was found in the Supreme Court of Appeal case of PPSA v Mail and Guardian, which set out clearly what the powers were and how broad they were.

Ms Madonsela answered that the Dame Mellor quotation was not really about accountability: she was noting that the UK ombud was appearing for the first time before her Parliamentary committee. She agreed that the PPSA, and other Chapter 9 and Chapter 10 institutions were indeed accountable to Parliament and there was no debate on that. She had quoted the UK statement for a different reason.

Ms Madonsela said that she wanted to refer to section 9 of the PP Act, which was about contempt.

Ms Smuts said that this was not relevant to the current discussion.

Ms Madonsela added that section 9(2) was part of section 9, but believed that she and Ms Smuts would differ on the necessity to refer to this. It would not be “contempt” of the PPSA if Parliament wanted to discuss matters with her, although she would normally be able to get a contempt order against any other body questioning matters investigated.

Ms Smuts agreed on that point.

Ms Madonsela then wanted to link this to accountability. Engagement with Parliament was provided for in section 8, and she would be willing to provide a booklet summarising the PP Act to the Committee.

Ms Smuts took exception to this and said that she did not need to have this, as she had been responsible for the drafting of legislation.

Ms Madonsela sought the protection of the Chairperson.

The Chairperson answered that she would be protected, but, in all fairness, wanted the same protection to be extended to Members of his Committee, who felt that some of the things that she was suggesting were bordering on insults, including the offer of booklets, workshops and quoting British statements, as this was not the first time that they were considering PPSA matters.

Ms Madonsela continued that section 8 said that the PPSA may make known any findings, point or view or recommendations. Section 8(2) said that reports should be tabled in writing on the activities of the office, in the NA, and that the PPSA shall upon request at any time submit a report on the findings of a particular investigation. In other words, the PPSA could bring a matter to Parliament if PPSA deemed it necessary, in the public interest, if it required urgent attention, or should do so if requested to do that by the Speaker of the NA or Chairperson of the NCOP. These were the standards. She fully accepted that there was accountability – it was merely the manner of accountability on which there seemed to be some debate.

Ms Madonsela noted that the Ombud was an old institution and gave some background, before noting that this was relevant because the various Ombuds benchmarked against each other, and shared their experience, expectations and results.

Dr Motshekga said that he was not sure what had to be done to remedy the difference of opinion, but commented that any document must be read as a whole, not certain sections taken out of context. He noted the reference to section 8 but said that that had to be read with section 9, which said that nothing prohibited a matter from being investigated; it was not correct to suggest that unless the PPSA approached Parliament, Parliament would have no say over its work. This interpretation clearly had to be clarified.

Ms Smuts asked Ms Madonsela to deal with section 181(5).

Ms Madonsela answered that section 8 did not say that the process must be initiated by PPSA. The last two options gave Parliament (NA or NCOP) the power to initiate.

The Chairperson said that the feeling seemed to be that Committee Members felt that this was probably not the time to engage in this debate. Input from both sides was needed. There was room for discussion on the powers. Section 9(2) was very relevant, but so was the Mail and Guardian case. He also referred the PPSA to section 55 of the Constitution. At the moment, the Committee did not agree with Ms Madonsela’s interpretation.

Ms Madonsela wanted to reiterate that there was no debate on the point that PPSA was accountable to Parliament. She merely wanted to discuss how it should report, in line with sections 8 of the PP Act and 181(5) of the Constitution. She would have no problems with accounting to the Speaker.

Ms Smuts said that the Speaker was not an officer of Parliament, nor the “boss” of the MPs.

Ms Madonsela countered that it was not her place to decide how Parliament was structured and she would prefer not to comment on that remark. However, administratively she did not account to the Committee, but to the Speaker. When she took leave she had to inform the Speaker; it was not possible to account administratively to a Committee. The Kader Asmal Commission spoke about the PPSA having to report to the whole Parliament, but then the Office for Institutions supporting Democracy (OISD) was created, and she would, administratively, work through that.

The Chairperson corrected Ms Madonsela that it was a Committee, not a commission, that had been chaired by Kader Asmal, and in fact Parliament had not accorded any status to the report it produced. That was entirely due to the inaction of Parliament, but there were some who held very firm views about the proposals and recommendations of that report, which had not been accepted or adopted by the NA or NCOP. He cautioned her against quoting it.

Ms Madonsela said that she had heard that there was a decision at Cabinet to “detach” Chapter 9 institutions from any linkage with government departments.

The Chairperson agreed that there was a move to ensuring that the Chapter 9s would obtain their budget directly from Parliament, which would greatly expand their independence, and the Determination of Remuneration of Office Bearers Bill said that remuneration and benefits of the Chapter 9 incumbents should be determined by an independent Commission, so that would be a form of detachment from government.

In answer to Dr Motshekga’s referral to assistance or cooperating from the state departments, she said that there was cooperation from various organs of state and the stakeholder consultations had opened more challenges. There was good cooperation in places where the Premier had stopped in. There were not many problems in Western Cape, or KwaZulu Natal, and other Premiers had stepped in to enforce the remedial action.

Ms Madonsela also agreed with Ms Adams that due weight was attached to the Mail and Guardian case. Its definition of “state affairs” spoke to following the money right through to wherever it had gone. She also agreed that the relationship was hierarchical and she accepted that PPSA did not have any sole right to oversee matters.

After the lunch break, Ms Madonsela noted that, having googled an enquiry, she had discovered that justice matters accounted for 14% of the complaints received by the PPSA in 2007. Section 6 of the Report of 2006/07 related to specific investigations, and the first was an investigation against the National Assembly – for alleged failure to comply with the Constitution and Parliamentary procedures on the Constitution 12th Amendment Bill. She reiterated that she had changed nothing and this whole debate on jurisdiction had only started recently and was never questioned prior to that.

State affairs” definition: can the PPSA investigate Parliament?
Ms Smuts noted that the section 182 of the Constitution said that the PPSA had the power to investigate “any conduct in state affairs or in the public administration in any sphere of government” that was alleged to be improper. Public administration was essentially Chapter 10 which dealt with civil servants. She asked what the PPSA defined as “state affairs”. Everything would revolve around this. She wondered if PPSA had taken any legal opinion to support its definition. She believed that it would be “bizarre” if PPSA had intruded on the work of another Committee of Parliament by writing to the Executive to say that a committee of Parliament was taking too long to decide on a very complex matter. The NA consisted of 400 MPs and each Committee was an organ of those. The executive and Speaker had no authority over Parliament. She did not understand how it was possible to intrude on that work. She thought that surely “state affairs” meant the executive not the independent emanations of the State – Parliament and the Chapter 9 institutions. All institutions outside government should have a naturally symbiotic and mutually supportive role.

Dr Motshekga thought that the interpretation of the ‘state” may be wider than envisaged by the Constitution. His own reading was that the PPSA may not investigate court decisions. Parliament was not specifically mentioned. However, on reading the section as a whole, he came to the same conclusion; that there was a vertical relationship and that accounting to Parliament meant not investigating or encroaching on the work of any committee of Parliament.

Dr Motshekga thought that the interpretation of “higher purposes” may also be broader than what the Constitution envisaged. He thought this was a prohibition on excessive powers by the Executive, at all spheres. He thought that the PPSA had the right to oversee what the branches of government did, and also investigate, but did not have the sole right to do so, as there were other oversight bodies. It could be argued that there had to be some complementarities. The PPSA could not decide, overnight, to investigate the whole of government, regardless of whether other bodies with concurrent powers could do that. He wondered if the PPSA had considered whether sources or areas of investigation should not be identified. Parliament had more than 30 committees overseeing government and producing reports, which could assist the PPSA in identifying and prioritising what must be investigated. The AG’s reports could also assist. The Department of Monitoring and Evaluation (DPME) would be useful, as well as the corruption watchdogs. He wondered if the PPSA really had to listen to all complaints and act on them, or if it should look at other reports, listen to the complaints and then prioritise. The PPSA could not do everything. The lack of prioritisation could lead to the scope being extended so far that the resources were also ever-expanding, which would not necessarily have been the case had it limited its approach.

Ms Madonsela said that she had been working with the Committee since 2009 and there were never issues about the mandate prior to this year. She suggested that it might be useful for investigating bodies, including the AG and Standing Committee on Public Accounts (SCOPA) to discuss, in a non-reporting and brainstorming environment, issues around the mandate. She maintained that the stated mandate had not changed since Adv Selby Baqwa was heading the PPSA, and he had investigate all three levels and branches of government, with no problems being raised. PPSA was, clearly prohibited from investigating after the court had made a decision, but it had interpreted that more widely to preclude investigations into judicial matters at all. Her office had always respected that.

Ms Smuts interjected, “Once I told you so”.

Ms Madonsela continued that delays in courts may have been investigated, and systemic problems in the Maintenance Court and Master’s Office were also investigated by former PP, Lawrence Mushwana. In April this Committee and she had discussed whether the PPSA should be dealing with labour matters, but, having gone back and checked on that, she found reports on labour issues investigated by PPSA prior to her time. Whilst she did not have time to go through the graphs from previous reports, a Google search would show that Mr Baqwa submitted reports on labour, so the mandate had not changed.

Ms Madonsela said that this was the first time she had been hearing that the Chapter 9 institutions were excluded from investigations also; an investigation had been done, prior to her time, on the Commission for Gender Equality, and no comments on what had been investigated had been raised by the Auditor-General. There were ongoing questions about the breadth of mandates and she believed that there was a need to look into them further. Nothing new was being done by her office now that had not been done before.

Ms Madonsela added that she did not agree with the interpretation that “state affairs” would exclude Parliament being investigated, provided that it was investigation into how it was acting administratively. In the same way, the Auditor-General was not excluded from investigating Parliament. She noted that in the previous week she had received a request to investigate, which she had actually declined because the complainant did not give sufficient information to follow through. The complaint alleged that there was maladministration in the Parliamentary Language Section, but the compliant was anonymous, had not given any documentary evidence, and merely asked the Speaker to follow it up. She reiterated that the question to be asked was whether any of her predecessors had investigated maladministration in Parliament and the other Chapter 9 institutions, and said that the answer was that they had. Similarly, although she was not happy when “red-carded” by the AG, the PPSA accepted that.

Ms Smuts said that this was not quite on point: the question was what “state affairs” constituted, and whether there was a legal definition?

Ms Madonsela responded that she understood that “state affairs” meant conduct within the State in its entirety. The PP Act spoke to which institutions it could investigate – which was basically organs of state as defined in the Public Finance Management Act (PFMA). This consideration was used by her assessment team when deciding whether to investigate.

She noted that certain issues around Judge Semenya had been referred to her, but her understanding was that the PPSA would not investigate judicial matters. She had written to the Chief Justice to notify of the request, and the fact that the PPSA would not be investigating.

Mr Motshekga said that Ms Madonsela should not feel defensive or assume that she was under investigation by the Committee. The questions around interpretation were being asked precisely because there was no consensus on whether past interpretations had been correct. He had not intended any personal attack, but raised these points to note that there was a problem with the interpretation. So far into democracy, it should not any longer be necessary to ask about the powers and functions, but rather to worry whether the institution was effective. 

Ms Madonsela said she agreed, and that was the reason why she had mentioned again the matters of concern when she had taken office. She reiterated that her understanding of the Constitution was as set out earlier, and she not believe that she was deviating from the principles of her predecessors.

In respect of the question around “higher purpose”, Ms Madonsela said that this was a different angle and looked whether the PPSA should represent a conscience of the State or the people. She reiterated that she was aware that the PPSA was not the only institution dealing with these matters – which was why “a” and not “the” conscience was quoted. She said that she had referred to conscience of the State, because it was the State who was being assisted by the PPSA to do the right things. The ombud institution was introduced by the King of Sweden about 204 years ago, when he became aware of loopholes in the political triad, and the Ombud was supposed to be a buffer between state and citizen when communication had broken down. Her powers related to administrative actions, but each Ombud had its own powers – for instance, the Swedish Ombud could review judges (when sitting as part of a board), and the forthcoming Summit would discuss whether the South African Ombud was adding value. PPSA was set up to ensure that the ordinary citizen would not necessarily have to go to court in order to render the State accountable. The PPSA would right the administrative wrongs of the state. She added that the vision of “a conscience” had not been finally decided upon but was an indication of what her team recommended and she would welcome other input. The words had been chosen to focus the PPSA on the fact that its work was not, however, administrative, but meaningful in making sure that the state operated with integrity, and that it rendered assistance to those who needed it.

Ms Madonsela said that the PPSA fully accepted that it was not a substitute for other bodies, nor of the State. She had said, when meeting with the Premier and mayors, that the PPSA did not want to take matters back to Pretoria but wanted to leave them with the relevant local bodies to finalised. The Ombud was supposed to highlight blind spots of government, then ideally should step away and let the functions resume normally. 

Indifference, culture and ethics
Dr Motshekga referred to the PP’s comment about indifference. He thought this may arise from problems of culture – lack of work ethics and proper application to the work - and wondered whether this was really something that the PPSA could successfully investigate and prevent. He believed that without developing national ethics, it would be impossible to solve the problems of indifference, and the main issue was where to start and who was responsible.  He cited the problems around land claims, which were a very serious national question, and noted that even those instituted in 1995 had not been finalised, and that questions asked elicited no clear answers. There was, however, provision for mediation and settlement and this could usefully be used to address the question of indifference.

Ms Madonsela gave some comments on land claims issues later.

PPSA requests: assistance on remedial actions
Ms Schäfer(DA) commented that whilst that the PPSA had requested that Parliament support it in the even that there might be failure by state departments to take remedial actions, she wondered what would happen where Parliament did not agree on the remedial action.  The Constitution gave the PP certain powers.

Ms Madonsela said that a universal approach was that there was no debate on findings. All Ombuds had powers to make findings, and then powers to order remedial action. In Kenya, the Ombud had the power to take immediate action. In the UK, it could recommend action, which meant there would have to be a further decision. It was not usual that Parliament would debate the findings of the Ombud. The Ombuds would generally share their practices.

Dr Motshekga asked what the meaning of “remedial” was and said someone should enforce the decision.

Ms Madonsela said that this might lead to another debate. As she understood it, remedial action was something that created a remedy. Recently, the PPSA had written a report where it engaged with an organ of state, and essentially it required it to fix what was broken. However, this must be distinguished from the court orders. She cited a recent case where a failure to issue an ID led to a person not being able to take up a scholarship, and in the UK the remedial action would be that such a person must be awarded an equivalent scholarship. The person affected must be put back in a position as close as possible to the original position, if possible – clearly a department of home affairs could not be expected to bankrupt itself, but payments might be ordered in some cases. In the Equitable Life case in the UK, government had to pay money to pensioners because it failed to regulate properly. When a finding was made, it was very difficult to challenge it other than by getting a determination that the Ombud was irrational.

Members asked who would make that decision.

Ms Madonsela agreed that because the Ombud could not become its own judge or own review authority it should be taken to another authority. She said that perhaps she should approach Parliament for a debate whether there was proper implementation. Perhaps this should be taken through to its ultimate conclusion.

Rules
Ms Schäfer asked why the rules had taken so long to finalise.

This question was not addressed.

Caseload and complexity
Ms Schäfer asked if Ms Madonsela had any idea as to the reasons behind the increasing complexity of cases.

Ms Schäfer asked to what extent the PPSA referred matters on, including to the Hawks or SAPS. Corruption was a crime so she hoped that these matters were referred for prosecution. She asked also if the PPSA would monitor what happened to cases referred elsewhere, and if there were any figures on how many referred were taken to court, and convictions obtained.

Ms Madonsela referred to earlier remarks by Dr Motshekga around complementarities. One of the reasons for introducing the Good Governance week was to bring together all role-players and have framework for collaboration so that different institutions were not trying to do the same thing. Before starting investigations she would try to find out if any other body was doing something similar, and try to electronically link up. If the SIU, for instance, was already dealing with an investigation on a particular matter she would not start one, and vice versa. However, it would be incorrect for government to tell her that PPSA should not do an investigation, because another body should do it instead, or to order another body to investigate. It would also be incorrect if one Minister asked another to halt an investigation. If that ever happened, she would ask for strong support from Parliament.

Dr Motshekga noted and agreed fully with the point that nobody should tell the PP what to investigate, but thought there should be a rider that if one agency was investigating an issue, another should have to await conclusion before commencing its own investigations.

Ms Madonsela said that if there was clear divisibility of issues, the NPA, for instance, might agree, when a matter was brought to it, that the PPSA could proceed with already-ongoing findings only in respect of maladministration (not criminal conduct) and make a finding limited to that aspect.

The Chairperson said that it would be inappropriate if ministers wanted to enter into the middle of an investigation; PPSA must then go back and tell the institution concerned to await the outcome of the investigation

Ms Schäfer thought that the point about dialogue was important. However, that also had the potential to be problematic, for issues might take far too long and this could be used as a delaying tactic.

The Chairperson said that if a case was being unduly delayed, Parliament must exercise its powers and step in.

Ms Shope-Sithole raised the point that the PPSA had requested more budget but if it was using its current budget to do investigations that could have been pursued more correctly by another body, for instance such as the Inspector General, she would not be inclined to support the budget request.

Ms Madonsela said that the assessment team, not she herself, decided which cases to take on, and she would rarely depart from their assessment. There were two points to bear in mind – firstly the jurisdiction, secondly the discretion. Her team was generally happy to refer matters on to another agency. The PPSA had Memorandums of Understanding with other agencies and she rarely, for instance, investigated anything to do with correctional centres or police. Matters had been referred to the Military Ombud and PPSA was supporting other institutions to grow their own investigative branches. This was in line with a suggestion by the Auditor-General that synergies needed to be strengthened. None of this, however, would prevent her from helping someone who came to the office off the street with a life issue.

Specifically in relation to whether matters were referred to the Hawks or SAPS, Ms Madonsela said that the Constitution empowered the PPSA to investigate report and take appropriate remedial action. This was always read as an open ended matter with discretion. She agreed that the Constitution should not be read alone, but the Constitution did say that “additional” powers were given by legislation, and that legislation could not limit the constitutional powers.  Similar wording appeared in the PP Act. Section 7 of that Act dealt with the manner of investigation. If issues were raised, PPSA could recommend that certain actions be taken during the investigation. If the PPSA had requested a full tabling of a matter in Parliament, she was requested to read that report and it would be debated, and an agency that was not implementing could be called in. Generally, the PPSA would use its oversight powers to enforce any recommendations, rather than going to the Hawks. However, there was a matter where an internal disciplinary enquiry had cost R5 million; a criminal aspect was not concluded but a joint investigation was done with the PPSA, AG and Public Services Commission (but not the Hawks) and there was follow up to find out what had happened on this.

Extent of corruption, and consequences
Mr S. Swart (ACDP) noted the six statutory mandate areas as outlined in the submission and said that his question would focus on the mandate under the POCA Act. In a previous meeting, Ms Madonsela had said that corruption was “reaching the tipping point” and in this briefing she had again referred to the growing numbers of corruption cases and tender rigging. This was of huge concern, especially given the budgetary constraints and the fact that the Special Investigating Unit had reported that over R30 billion annually was wasted through corruption. He asked if she was still of the view that the corruption was at “tipping point”, or if it had gone beyond that.

Prof L Ndabandaba (ANC) also referred to the growth in tender rigging and corruption and asked if Ms Madonsela had any insight into why this happened. He also questioned if an increase in the budget would enable her to get more insight into that  phenomenon.

Ms Shope-Sithole said that when reports on corruption tended to emphasise the public sector contribution but not so much that of the private sector, despite the fact that the private sector was equally blameworthy, at the least. She did not believe that most civil servants actively approached the companies, but that it was rather the other way around. She thought it was necessary to highlight this as the media was not perhaps putting across the right impression.

Ms Madonsela said that there was no doubt that corruption was increasing; all agencies were seeing this, including the AG, the Special Investigating Unit (SIU) and the Public Service Commission. In the past she had been hesitant to make a statement on that, because she had been unsure whether the increase in caseload was indicative of corruption increasing, but she was now convinced that this was the cause. There was also increasing sophistication in the crime. The corruption could not easily be tracked, and did not take place merely through bribes. Without mentioning cases, she could say that matters linked to corruption included tender rigging, price escalation and unreasonable pricing. Tenders may not violate supply chain rules on the face of it, but some people on the value chain might score all others out in subtle ways to ensure that contracts would be awarded – apparently openly – to the preferred provider. She said that if South Africa did not address corruption, it would overcome everyone.

In answer to Mr Swart she said that perhaps the corruption levels had not tipped over, but corruption was at crisis point.

Dr Motshekga asked how she would quantify this, and whether it was judged on convictions, or complaints. His own experience was that many disgruntled people lodged complaints that may not be truthful.

Ms Madonsela responded that she was not relying on court numbers. There were corrupt people who had never been brought before a court, but at an administrative level they were clearly corrupt. Organs of state often ordered forensic audits, costing huge amounts, and the PPSA did not rely upon prosecutions and convictions. The National Prosecuting Authority (NPA) had been worried about the length of time taken in prosecuting, and it had been suggested that the PPSA thus needed to strengthen its administrative investigations. The question of strengthening synergies had been raised earlier, as well as entities informing each other of cases being investigated. She believed that the real “crisis” was the fact that people were no longer shocked when they heard about corruption because they were so used to it. She fully agreed that it would be very dangerous to assume that every allegation of corruption was true, and it must be accepted that some so-called whistleblowers were acting for the wrong motivation. PPSA’s assessment team had a strict template that looked at what was produced in support of allegations. She repeated that although matters had been raised about the Parliamentary unit, nothing tangible was produced to justify the investigation. When the PPSA did public hearings in the next year it would put people under oath.

In answer to Prof Ndabandaba, she thought that the growth in tender-rigging was probably in large part due to greed, coupled with the fact that failure to ensure compliance opened up the possibilities. Ultimately she appealed to all structures that were involved in oversight to find a way to join hands and deal with corruption.

In answer to the question whether a bigger budget would enable PPSA to get more insight, she said that a bigger budget would certainly allow PPSA to deal with more cases, and to investigate them faster if each investigator’s workload could be shifted, which would then lead to contracts being reversed more speedily and implementation of contracts brought to an end. Where PPSA had been able to act fast, it had sometimes managed to save the situation. For this reason, she repeated her request for support for a greater budget.

Consequences and disciplinary action
Mr Swart noted the slides on lessons learned, and Ms Madonsela’s comment that “without ending impunity, no difference can be made”. This suggested that there were not sufficient prosecutions being done, or sufficient done to bring people to book. The PPSA had also indicated concerns at the inconsistent application of disciplinary actions across government. He asked if the PPSA was engaging with the Public Service Commission to find consistent ways to combat nepotism, corruption and the like.

Whistleblowers
Mr Swart said that he had, earlier in the week, engaged with the National Prosecuting Authority (NPA) on whistleblowers, had asked if there were any programmes protecting them, and, if not, what further steps were needed under the Protected Disclosures Act (PDA). Whistleblowers were very important in fighting corruption. He also indicated that a section in the POCA Act that said that if a public servant was aware of a forensic report, even if s/he may not have been involved in a corruption matter, and failed to disclose or act on that, it was an offence. He thought that this was something that perhaps needed more public awareness and promotion. The country faced severe budgetary constraints, and anything that inhibited wasteful and corrupt expenditure would help in balancing the books and directing more resources in turn to the Chapter 9 institutions. He would be raising the question of corrupt activities also during engagements with the SIU later in the week. He believed that it made perfect sense to increase the capacity of law enforcement agencies to recover funds.

Ms Madonsela agreed that whistle-blowers were not adequately protected. When she had worked with the South African Law Reform Commission, a paper was being planned on the review of the Protected Disclosures Act, to plug loopholes, and to address the fact that the Act currently did not protect suppliers, nor indicate what retaliatory action was. In some jurisdictions there was a provision that disciplinary action against a whistle-blower could be taken only if there was proof that the whistle-blowing was done in order to obviate disciplinary or criminal proceedings. There was no link between the Witness Protection Programme and the Protected Disclosures Act. The AG and PPSA were safe harbours but there was nothing to say that they could assist whistleblowers in getting into the Witness Protection Programme (WPP). She said there should be consideration also of bounty provisions, as in the United States, which provided that whistleblowers who had reported people, for instance, for false billing, and such reports resulted in money being recovered, the whistleblower could claim a portion of the money recovered. Where private prosecutions were instituted successfully a greater proportion was claimable. She noted that auditing or other measures, because of the nature of sampling, might not always pick up abuses in procurement or misuse of funds, and most major investigations were instituted because of whistle-blowers.

Specific matters
Mr J Sibanyoni (ANC) repeated a question he had raised earlier, about the intention to close PPSA offices in certain areas, and commended the PPSA on the initiatives with other institutions, such as the Post Office, as implementing agencies, which was a partial solace if offices were to be closed, to at least ensure a constant presence. He wondered if the visits to hospitals were done as a result of follow ups to enquiries, or on own initiative. There was a hospital at Kwa-Mhlanga where there had been great community dissatisfaction at the level of services.

Ms Madonsela noted that the PPSA had not forgotten about Siyabuswa, which would be getting mobile services, and PPSA was wanting to visit the community, in conjunction with SAPS, to explain how the new service would operate. The hospitals that PPSA investigated were mostly identified by the provinces, but there were a few special requests, such as Orange Farm also and the PPSA could consider Kwa-Mhlanga.

Prof Ndabandaba noted that the PPSA was dealing with Baragwanath Hospital, and asked if it had been asked to intervene in the threatened closure of McCourt Hospital in Durban.

Ms Madonsela said that she became aware of the McCourt matter through media reports, not a direct approach, but had followed up and had heard that services were now running more smoothly because of interventions by the Minister of Health. She would follow up to ask if the Minister of Health was intending also to investigate alleged maladministration.

Mr Sibanyoni asked if the complaints against the Government Employee Pension Fund, which was paying pensions to the wrong person, had progressed.

The Chairperson asked that the details of that case should be brought formally to the PPSA.

Mr Sibanyoni said that he had done so – he was following up as it was in Machadodorp, his constituency.

Ms Adams wanted to know when the provisional report on Nkandla would be produced.

Ms Madonsela noted that this was actually one of the reports that was being done in a remarkably short space of time. These investigations had moved faster than others. She conceded that some people may complain that high-profile cases that attracted significant media attention may be processed faster than others, but it was really a question of trying to balance the interests and ensure that all relevant information was brought forward. The broader the investigation the more it was difficult to move fast.

Ms Adams mentioned the media reports on certain matters that were still outstanding in respect of Ms Madonsela’s own administration. She asked about the role and powers of the Deputy Public Protector and whether there were any problems between the two.

This question was not answered.

Ms Madonsela referred to earlier general comments on land claims, and agreed that these were problematic. The question was raised whether PPSA should have done a study. It was seized with some issues from a maladministration point of view, and virtually every province had isolated some matters of concern. The requests related to delays in the main, although there were other matters also. She had hoped to meet with the former Judge President but had been unable to do so, and had now requested a meeting with the Minister to discuss delays, corruption and maladministration by traditional authorities and the Community Property Associations (CPA). During the Poverty Study and public hearings, land claims programmes were raised as a major concern. Restoring land to the people was supposed to be about giving them resources to generate income for themselves, but all nine provinces had reported that people were still not actually placed in possession of resources that would change their lives. Some allegations had been individually investigated already. In Mpumalanga, the Premier had said that he was aware of the problems but there was also lack of capacity to manage the huge resources. Sophisticated enterprises were required and people had minimum support. He was convening a summit to discuss land restitution but there was a need for a national review overall. The major concern was that people sometimes got their land, but it meant nothing without support.

Dr Motshekga submitted that some of the delays were in fact part of the corruption, because delays often were created in order that others be given prospecting rights, for instance, and by the time the matter was nearing finality, there would be claims that it was not possible to proceed. The whole restitution process became a farce. There was no respect for the African meaning of the word “community” and if certain people had been dispossessed, they would be told to form a CPA but this destroyed the nationhood, and flew in the face of the general understanding of community and the Constitutional requirements, and at the end of the day could even be unconstitutional, because there was a mismatch if the Constitution recognised a community observing indigenous law, but individuals or CPAs were the ones making the application. He suggested that this matter could not wait until the Summit in December.

Ms Madonsela agreed that this summary of the situation reiterated many points raised in the written submissions. She said that the Minister had agreed to a meeting and perhaps she would ask him what could be done in the meantime. However, Mpumalanga’s option for a Summit would allow expression of so much dissatisfaction in communities whose land had or had not been returned.

Training
Prof L Ndabandaba asked which organisations were used by PPSA for training of personnel.

Ms Madonsela said that in the 2012/13 financial year there were 284 officials, although the trainee investigators were not really employees in the full sense as they were not permitted to work alone and were in a state of flux. Training of staff was done through many service providers – for instance, training on fraud was given in a certificate course. Much of the general investigation training was done by the Ombud of Ontario, in the “Sharpening your teeth” programme, as recommended by the International Ombud Institute, and the Ombud had been asked to run a tailor-made course in South Africa rather than trainees being sent overseas. In future, the majority of the training would be done in Durban, by the African Ombud Research Institute, which did research and training for Africa

The Chairperson made the point that if the PPSA had a Memorandum of Understanding with post offices, this must be brought to the attention of the Minister of Communications, as he may have a role.

Ms Madonsela said that a courtesy meeting would be arranged with him, although she had already spoken to him and had a good relationship with him.

Concluding remarks
Ms Madonsela thanked MPs for their encouraging remarks and robust engagement. The PPSA aimed to improve every day and achieve its personal best, as an institution, and as individuals, and was hoping by the next year to have raised achievement of targets still higher. She was grateful that premiers had opened their doors and were listening and giving undertakings that recommendations would be enforced.

The meeting was adjourned.
 

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