The Public Protector of South Africa presented its Annual Report, including a brief exposition of the work done by the Office over the year including the number of cases received (26 195), finalised (24 642), referred (3 072) and the staff complement (314, with 100 trainee investigators) which handled the cases. The presentation included an insight into the sources of the complaints received and the types of typical and systemic cases dealt with. The trend of resistance to the remedial action prescribed by the Public Protector was highlighted to the Committee. The performance against indicators showed that the Public Protector’s outreach efforts were achieved well beyond the targets. Resource constraints had limited the resolution of cases although the Office managed to completed 50% of early resolution cases within three months. The Public Protector’s performance this year up to August 2014 displayed a similar trend to that of the previous financial year, with outreach efforts over-performing and the resolution of cases hampered by under resourcing. The presentation identified the largest challenge to the Public Protector as a lack of both financial and human resources. A plea was made to Parliament that the organogram approved by the Minister of Finance and Department of Public Service and Administration be funded. It asked for assistance in redressing the anomalous instances of non-compliance with the Public Protector's proposed remedial action.
The Chairperson opened the discussion asking what the relationship is between the institutional independence guaranteed by the Constitution and accountability to Parliament, also a constitutional requirement. The response in brief was that the independence of the Office entails both decisional and institutional independence, allowing the Public Protector the freedom to investigate at its own instance and without interference from any quarter. While, accountability entailed revealing its activities to the Committee, including its actual and financial performance.
Further, concerns included some Members raising concerns about the Public Protector receiving awards and whether the trips to receive such awards were private or work related and if there was any possibility for influence as a result of prize money attached to such awards. Several Members inquired into the audit findings made by the Auditor General who had flagged R14 million worth of irregular expenditure and an amount of fruitless or wasteful expenditure, although producing an unqualified opinion with findings.
Adv Thuli Madonsela, Public Protector, responded that the trips had been combined with benchmarking exercises which had been in the pipeline before the awards were announced and that the only prize money was R100 000 which she had not accepted, but had indicated that a trust dedicated to autism would be the recipient. Further, that the irregular expenditure was explained as non-compliance with the procurement procedure, having not complied with the 90/10; 80/20 principle. While the fruitless or wasteful expenditure was declared as having arisen several years prior in the form of the acquisition of a case management system which the Auditor-General had written off at purchase.
Towards the end of the first sitting the Chairperson asked the Public Protector whether the Office was technically insolvent, i.e. the Office’s liabilities exceed its assets. The Public Protector replied that this was the case, however she was not able to give a full response, past indicating that the reason for this was the strained financial position the Office was in due to the increasing caseload, which had not been accompanied by an increase in the budget allocation. The remainder of this answer was relegated to a written response.
The Chairperson began by asking the Public Protector to speak to the report which had been tabled, in addition to the summary as presented, because he felt that the manner in which the Annual Report dealt with the issues was very good and that the presentation was too superficial and general.
Public Protector on Annual Report 2013/14
Adv Thulisile Madonsela, Public Protector, replied that the presentation is a synopsis of the Annual Report and has been extracted from it. However, she was in the hands of the Chairperson and would follow the presentation, speaking to the Annual Report where pertinent.
Adv Madonsela said that the Office of the Public Protector South Africa (PPSA) had handled 39 817 cases by March 2014, with a carry-over of 13 622 previous cases and 26195 new cases and, of these PPSA managed to resolve 24 642. She noted that the focus had been on dealing with the backlog of cases, which has resulted in new backlog cases. She noted that 3 072 cases were referred to other institutions such as the Public Service Commission and Military Ombuds. The biggest generators of cases were the Municipalities (31%), Department of Human Settlements (13%) and the service branches of the Department of Justice and Correctional Services (12%). The PPSA did this with a budget of R199 253 000 and a staff complement of 314, with 100 trainee investigators.
Adv Madonsela then explained the manner in which the PPSA approaches its work and the triaging process which filters out cases. The PPSA continues to balance universal accessibility in line with section 182(2) of the Constitution, with promptitude and rigor in the pursuit of justice. It focuses on the bread and butter cases the PPSA terms “Gogo Dlamini” cases, which form the bulk of its cases. The triaging process determines whether the complaint has merit, whether it is within the mandate of PPSA and whether this should be referred to a more appropriate institution. Upon acceptance of a case it is decided whether it is a rudimentary Gogo Dlamini case which should be sent through the early resolution process for alternative dispute resolution (ADR) or if it requires investigation. Subsequent to the completion of the relevant processes either a closing report, in the case of early resolution, or a formal report, following an investigation, will be produced. If the complainant is unhappy with the outcome the PPSA has a customer service division which will refer the case to the Public Protector.
Adv Madonsela noted that on page 29 of the Annual Report a situation analysis is given of the fourth year of implementing the Public Protector Vision 2020, adopted in 2012 and this has saw the revised Strategic Plan of 2012. This enjoins the PPSA to align its finances and human resources to the five strategic objectives. However, she said there have been enormous challenges in resource alignment. Accessibility, which is a constitutional injunction, is central to the strategy of the PPSA and the Office has made various initiatives towards this end. An example is the outreach programme which aimed to reach 10 million persons and managed to directly and indirectly reach 30 million people.
The PPSA deals with service failure, delayed, denied or dissatisfactory, through the “Makhadzi” ethos of “whispering truth to power” and hence focuses on alternative dispute resolution (ADR), with investigation and remedial action being pursued only where the ADR efforts have failed. She outlined some case studies which demonstrate how the PPSA deals with rudimentary cases in the fight against maladministration. These included conciliation efforts which have led to things such as a grandmother finally receiving her pension from the Department of Health which had been contested since 2007. The dispute had centred around her period of service and through mediation by PPSA, Mrs N received her pension. The PPSA also deals with systematic service failure and has produced reports including on the impact of systematic service failure on peace and security (The Children Shall Pay) and on human rights (Learning Without Books). The PPSA has also dealt with several cases of excesses in executive benefits and related procurement irregularities were uncovered and remedied. Adv Madonsela also said the Annual Report identifies the fault lines in supply chain, including unnecessary procurement, over billing, false billing and obscene project cost escalation.
She said that PPSA seeks to make an impact by leveraging oversight and stakeholder collaboration. These efforts include memoranda of understanding regulating referrals to other relevant institutions supporting democracy. Encouraging the establishment and support of sectoral ombuds offices such as the Military Ombud. The PPSA is also involved in the Forum for Institutions Supporting Democracy (FISD). The PPSA has also experienced a change in the profile of cases, with the number of maladministration cases growing and those in sectors with more appropriate agencies dealing with maladministration decreasing, such as Correctional Services and the SAPS.
She noted that there has been a sudden increase in resistance to findings and remedial action proposed by PPSA, consequently leading to injustice. An example of this is the initial decision by the then Minister of Home Affairs Dlamini-Zuma to implement the findings and remedial action contained in the report Unconscionable Delay. This was withdrawn by the subsequent minister who is disputing the validity of these and has instituted review proceedings.
Adv Madonsela said that the PPSA has five strategic objectives: accessible and trusted by all persons; prompt justice including remedial action; promotion of good governance in the conduct of state affairs; an efficient and effective organisation and optimal performance and service focused culture. Performance information starts on p61 of the Annual Report, but the presentation would focus on the highlights.
1. Accessible and trusted by all persons
Here there were 1 971 mobile clinics, while the target was 1 728. The target for people reached through the PPSA’s outreach efforts was 10 million but 37 million were in fact reached.
2. Prompt justice including remedial action
The PPSA managed to exceed the target of resolving 50% of early resolution cases within three months, however there are challenges in finalising all cases within six months.
3. Promotion of good governance in the conduct of state affairs
The PPSA achieved 100% technical compliance with the requirement of the Executive Members Ethics Act (EMEA), which means the Office advises the Presidency if a matter will not be completed within 30 days. The challenge in meeting the requirements for substantive compliance is the fact that the PPSA does not have the personnel to achieve this. The Good Governance Week and Conference was successfully hosted in October 2013.
4. An efficient and effective organisation
The PPSA achieved an unqualified audit with reduced matters of emphasis and an action plan have been developed to deal with these problem areas. Further, the information and communications technology strategy has been developed and implemented as planned. However, the case management system is still a work in progress.
5. Optimal performance and service focused culture
A human resource plan was developed. An employee satisfaction survey was carried out and the outcomes of the survey implemented. Four benchmarking visits were conducted, primarily to benchmark investigation techniques and the results integrated into operations.
Public Protector on Performance from 1 April to 30 September 2014
1. Accessible and trusted by all persons
Here four million people over the 1 million person quarterly target were reached through outreach efforts. 482 mobile clinics were conducted, above the 144 quarterly target.
2. Prompt justice including remedial action
60% of early resolution cases were dealt with within three months, 10% over target and significant progress has been made in finalising cases older than a year.
3. Promotion of good governance in the conduct of state affairs
EMEA investigations were conducted as planned and the project planning for the Good Governance Week has been completed. Draft reports on systematic investigations have been submitted to Head Office.
4. An efficient and effective organisation
The compliance function was established and in the second quarter the post filled. The Auditor General’s recommendations are being implemented. Cost saving measures are being implemented on a continual basis. Further, a business process engineer has been appointed to work in tandem with the State Information Technology Agency (SITA) to re-engineer PPSA business processes.
5. Optimal performance and service focused culture
Recruitment for the post of senior manager was undertaken, with efforts aimed at internal sourcing although this was not successful. The training needs of staff have been identified and management is developing programmes pending the availability of funds. A retention strategy has also been developed, but implementation has been hamstrung by financial constraints.
Adv Madonsela said that the PPSA’s primary problem is a lack of resources, which has been a persistent problem since she became the incumbent Public Protector. An organogram comprising 446 had been approved by Parliament in 2009, however this was never implemented. Despite it not being implemented the amount and complexity of the work of the PPSA has increased. The Minister of Finance approved another structure in 2012 comprising more than 566 posts and it was taken through a rigorous assessment by the Department of Public Service and Administration. This was never funded by Treasury, which said that PPSA must reallocate its budget. Presently the PPSA has 344 posts, including 100 trainee investigators. The PPSA only received funding for trainee investigators once, through supplementary funding in the last quarter of 2013/14. These costs are now eating into the budget. The PPSA has implemented cost cutting measures including refocusing the good governance week onto electronic platforms and using the invitation into a particular province to engage stakeholders simultaneously. The inadequacy of resources has led to decreased efficiency and complaints from people wishing to make use of PPSA services. The second major problem is the resistance to implementation of remedial action as dictated by the PP. The pursuit of prompt remedial action and justice is part of the Strategic Plan as approved by Parliament in 2012.
Request for Support
Adv Madonsela drew the Committee’s attention to the fact that the National Development Plan has indicated that the PPSA and other institutions supporting democracy would be strengthened as part of the maladministration and anti-corruption mandate. She asked for this to be invoked by the Committee to leverage National Treasury to grant the full R24.3 million supplementary funding for 2014/15 and the R61.1 million for 2015/16. She emphasised that the funds are key, because given the previous year’s deficit, with the present financial constraints even if the PPSA were to cease all but office based telephonic work the deficit would still persist.
The PPSA also welcomed Parliament to join hands in seamless oversight, by supporting the Office's efforts by ensuring implementation of remedial action and cooperation during investigations. This was most important in the Gogo Dlamini cases, where a vulnerable person approaches the Public Protector for redress and is the least able to pursue a remedy by other means. However, compliance with remedial action is not the norm and there is non-compliance.
The Chairperson assured the Adv Madonsela that the Committee supported her Office, not as a favour, but under the constitutional imperative to do so. The Committee fully supports the independence of the PPSA, however the concept of accountability to Parliament needs to be unpacked more. He said this, seeing as the Annual Reports states that more than 20 000 reports have been compiled by the PPSA, yet the Committee has not seen a single one. Further, given the request for assistance, the nature and status of the remedial action prescribed by the PPSA needs to be explained, because it is necessary that there is a common understanding for the Committee to assist the PPSA within the bounds of constitutional democracy.
Ms M Pilane-Majake (ANC) asked for the Deputy Public Protector to answer the questions, because there is sometimes the notion that the Public Protector is an individual, but it in fact is an Office.
Mr W Horn (DA) said that this is a highly irregular request and no such request has been made of any of the other accounting institutions. Further, while the PPSA is obviously an Office, the Public Protector is also an individual and it is not within the ambit of the Committee to silence the Public Protector in favour of her deputy.
Adv Kenneth Malunga, Deputy Public Protector, replied that the FISD had had a discussion on what accountability means and he would be willing to provide Members with the determination which came out of that engagement. Parliament has a comprehensive document which explains what its oversight role is and what this entails. What the PPSA understands as accountability is not as a fourth arm of government, but is part of the system which engages in oversight over government. The arrangement is therefore cooperative and for seamless oversight. Like any other organ of state, including the Chapter Nine Institutions, the PPSA comes to Parliament to explain how the money it has allocated is being spent and to show that it is working within its mandate. If an organ is working in areas dedicated to another entity or not functioning as it is supposed to, then Parliament has grounds to intervene. The independence of the PPSA is non-negotiable and is clear in law. The FISD discussion had brought out the potential contradiction of working independently, but still having to account to Parliament which leads to the need for a delicate balance between working without fear, favour or prejudice and accounting to Parliament.
On remedial action, the Deputy Public Protector said this is contested terrain and a court is likely to settle the debate. The problem that ombuds institutions face is that they have a power which is softer than that of court of law which can order compliance. Usually it is in the best interests of the impugned persons to act on the remedial action, because it is well reasoned. While presently there is a lot of hype about the politically sensitive issues, generally the PPSA deals with small cases, which do not have media coverage or deal with politically sensitive issues and in the majority of these cases there is no problem with implementation of remedial action.
Adv Madonsela agreed on reporting, as this accountability to Parliament is clearly regulated by section 181(5) which states that “these institutions are accountable to the National Assembly and must report on their activities and the performance of their functions, to the Assembly at least once a year”. Tabling of reports is regulated by section 8 of the Public Protector Act and this section gives the Public Protector a discretion to table these reports. The system which has operated for a while is that only formal or special reports are shared with the National Assembly and the PPSA has not failed to do so. Therefore, perhaps there is a problem with reports reaching Committees from the Speaker. The only reports which do not get tabled in Parliament are those dealing with the Executive Members Ethics Act, which must be submitted to the President who is tasked to submit that report to Parliament within 14 days with comment and an indication of what the Executive intends to about the report. On remedial action, following the wording of the Constitution and Public Protector Act, she would differ on using the word 'recommendation'.
The Chairperson interrupted asking if she was differing from the Deputy Public Protector.
Adv Madonsela replied that she was focusing on the law and did not wish to personalise it. The drafters of the Constitution had determined the powers of the Public Protector after careful consideration. The Constitution grants the Public Protector the power to “take appropriate remedial action”. Further, the Public Protector Act characterises a recommendation as one of many options available to the Public Protector. The PPSA does make recommendations and these are contained in the reports which do not come to Parliament. In the Gogo Dlamini cases, the PPSA will recommend, negotiate and conciliate. If the recommendation is complied with, then no formal report will follow. Where a formal report is written the PPSA is making a determination of the wrongfulness of the actions and a finding is made. There are even cases where part is conciliated and the rest is submitted to the powers of the Public Protector to adjudicate. The matter of the powers of the Public Protector is before the courts. However until such a determination is made, then the Constitution must be interpreted in line with section 39 of the Constitution. In the interpretation clause it implies that a purposive approach needs to be taken when reading legislation.
The Chairperson said that the question has been answered. All that remains is that seeing as the Public Protector Act enjoins the PPSA to submit reports to Parliament where the matter is of public interest, which is the case where organs of state do not comply with the remedial action prescribed, why are these case reports not referred to Parliament.
Adv Madonsela replied that each report is submitted to the Speaker, but not necessarily for debate, because the initial expectation is that the remedial action will be implemented. When the organ does not comply, then this is when PPSA writes to the Speaker to request that Parliament debates the issue. What is emerging is that all reports are not reaching the Committee. She will request that copies are sent directly to the Chairperson and PPSA will indicate when this is merely for noting.
Adv Malunga said that the PPSA has picked up from the British Ombudsman that where there is non-compliance, then she will forward the report to the relevant parliamentary committee. That committee will then summon the state organ which is not cooperating. There are challenges such as where Telkom refuses to submit to the jurisdiction of the Public Protector, despite the Public Investment Corporation being the majority shareholder. His view is that in future that there be a direct line to Parliament and this should help matters.
The Chairperson agreed and said that this is a better approach than issuing deadlines for compliance with the PPSA recommendations. This is better than engaging in a battle with the non-compliant entity and he hoped this would be the approach in future.
Ms G Breytenbach (DA) said that many of the PPSA targets were not met, largely because of being under-resourced and she would like to know if this is the main problem. The staff is over-burdened and she would like the PPSA to flesh out the concerns, particularly as additional funds have been requested in the past and now staff are going to have to be let go due to lack of funds. She asked if the location of the budget of the PPSA within Cabinet affects the budget and requests for additional funding. As she understood section 8 of the Public Protector Act, the PPSA can refer a report to Parliament if it is deemed necessary. She viewed this as a last resort measure, because there are other dispute resolution mechanisms available and she would like an elaboration on the process of exhausting these first.
Adv Madonsela replied that it is true that the targets were not met due to resource constraints. The targets that were achieved were through great efforts by staff. This has led to problems with performance agreements and staff taking leave for problems such as depression. She therefore appealed to the Committee to support the PPSA as the staff is extremely overloaded. Exit interviews have demonstrated that staff leave because of the overload, if not because of better offers. The Johannesburg office had a highly motivated team, however they were struggling under more than 2 000 cases. Where cases are finalised as not having any maladministration, when in fact there was, this means that justice is not done. For integrity management and good governance, a maximum caseload for complex cases is six cases per year. There has been an increase in requests for reviews by the PPSA, particularly as the public has learned of the standard of investigation which the PPSA is capable of achieving.
On Cabinet determining the PPSA budget, she said that in other countries similar institutions present their budgets to Parliament which decides if it is rational and then it is for the executive to allocate. On posts, she said that Parliament decided that the Office required 432 posts five years ago and recently agreed to a new organogram, approved by the Minister of Finance, for 566 posts. That organogram was produced not taking into account the increased workload and was simply a refinement of the one previously approved. She indicated that the decision was up to Parliament, however according to the Van Rooyen judgement, finance is an important aspect of independence and one has to prevent it being used as a leveraging point. On whether submitting reports to Parliament is the last resort against non-implementation of remedial action; she said that this Committee had in the past asked the Public Protector why it was not exhausting its own powers in pursuit of implementation. This process was similar to that applied by the Ethiopian Ombudsman, which attempts to leverage the executive itself before approaching Parliament as a last resort. She continued, answering a later concern of Mr B Bongo (ANC), that the system for following up on remedial action is not new and is evidenced by the Nandoni Dam case under Adv Mushwana, which had clear timelines for the implementation of the remedial action. Further, that it would be difficult to leave implementation of all remedial action to Parliament as the volume would require a dedicated committee. The procedure on remedial action was approved by the Committee when the PPSA presented its Strategic Plan.
Mr S Swart (ACDP) said there is a quote on page 14 of the Annual Report from a Supreme Court of Appeal (SCA) judgment which warns that if the PPSA is undermined then the nation loses an important constitutional guarantee, because this is a bastion against maladministration and malfeasance in the public administration. He then asked whether the PPSA feels that the office is being undermined at all and whether the institution is faltering, particularly in light of the budgetary constraints. With the Public Protector having indicated the criminalisation of contempt for the public protector, whether processes are underway regarding the Deputy Minister of Defence and Military Veterans. On the Nkandla report and the SABC report, he wanted to discuss principles. It was of great concern to the ACDP that the Minister of Communications has obtained a legal opinion that she could differ from the remedial action prescribed by the Public Protector, which is now subject to litigation brought by the DA. He felt that the essence of the debate was section 182 (1) (c) which states that the Public Protector is to “take remedial action”. He felt that the answer was clear, but in light of the differences of opinion in Parliament, could the PPSA unpack its stance further. He felt that where the Public Protector takes remedial action, this is binding until set aside by a court. The problem with forwarding things to Parliament is that, it may also disagree with the remedial action prescribed by the Public Protector, despite being obliged as organs of state to support the Public Protector. His stance was that the law and Constitution were very clear, but a court’s decision will be helpful to bring finality to this.
Adv Madonsela appreciated the quote from the Nugent JA as this would give guidance to the weight of the actions of the PPSA. It must be kept in mind that the PPSA conducts complementary oversight and the last slide of the presentation was to show that the majority of state departments not only respect the Constitution, but are compassionate towards the victims of maladministration. However, there is an emerging threat and in the case of the Department of Minerals and Energy, the Minister has said that they have exercised their executive powers and the decision is final. This is tantamount to refusing all administrative criticism and denies that where power is public, it is necessarily supervised. The PPSA has had to call upon all the past Presidents of the Republic to implement remedial action and this has been cooperated with. The Public Protector has even made findings against Parliament which have been implemented. Therefore, it is only a few persons who have not complied. The persons who take the PPSA to court are entitled to do so. She said that contempt proceedings have been invoked against a particular Deputy Minister and the PPSA is trying to determine the adequacy of the compliance. She emphasised that it is in no one’s interest that a fight ensue, because the true enemy is maladministration. On the principles which Mr Swart asked about, she indicated again that section 39 of the Constitution gives principles for interpretation. In interpretation, the starting block is the plain meaning of words and to her mind section 182 should not be read as a gate to nowhere, because this would contradict the words of the SCA. Former President Nelson Mandela has stated that even the most benevolent countries falter and that even he has been found to have acted wrongly by the PPSA and complied with the remedial action.
The Chairperson asked whether this means that when a report is before Parliament, it is bound.
Adv Madonsela replied that the findings are not binding on Parliament; it is binding on the impugned organ of state. The Fourth Parliament procured a legal opinion when the Independent Electoral Commission matter was live, which indicated that Parliament could not change the findings of the Public Protector. This lead to Parliament not acceding to what was contained in a letter, but it left the report intact.
The Chairperson asked when a report is before Parliament, must it simply “rubber stamp it” and it cannot change it.
Adv Madonsela answered that if the PPSA is to benchmark itself against the United Kingdom or Canada, then it is important to look at their wording. In the Canadian ombudsman’s case, virtually all of his findings are implemented, despite that statute specifically stating that that the office produces recommendations. What is common to all countries is that where a report is submitted to Parliament, the offending institution is called to explain its noncompliance and if it is claimed that the ombudsman was unreasonable, then the ombudsman is called to explain its actions. When the Chairperson speaks of rubber stamping, she reminded him that Parliament’s powers are the same with regard to all Chapter Nine Institutions. If it is said that Parliament can review the findings of the Public Protector, the same would apply to the Auditor General and the Independent Electoral Commission.
The Chairperson interrupted saying that Adv Madonsela was opening up a new debate.
Ms Breytenbach interjected that she did not agree.
Mr Swart said that the Public Protector has answered his question, but the binding nature was an important topic, in which all Members were interested. He would like her to complete her comment and then he would be satisfied.
Adv Madonsela said she had begun along the route because the Chairperson had asked whether she wanted Parliament to rubber stamp the Public Protector’s decision. In directly responding to this statement she had wanted to indicate that as they arise from the same chapter of the Constitution, all Chapter Nine Institutions are to be treated the same under section 181. She noted the Van Rooyen judgement of the Constitutional Court deals with institutional independence and that the Public Protector is guaranteed decisional independence. Where the PPSA investigates a matter, Parliament is to become the Public Protector’s partner in enforcement. Where Parliament investigates the same matter, it can come to its own conclusions. Standing to be corrected, she could not see that once a decision has been made by the Auditor General that Parliament could say to that institution that its findings were incorrect and replace them with its own findings.
The Chairperson said that these should be left as open questions to be debated in an appropriate forum.
Mr B Bongo (ANC) echoed the Chairperson’s sentiments that the Committee supports the PPSA. He said the debate around the implications of section 181 of the Constitution would be better placed elsewhere and is generally academic, but he was of the opinion that the PPSA should not be involved with implementation and should submit its reports to Parliament and leave Parliament to carry them forward. Turning to page 137 of the Annual Report, he asked about the failure of the PPSA to follow due process when appointing an external investigation panel and he would like clarity on the nature of the undue expenditure. In light of the King Report on Good Governance he asked where the PPSA accounts for and seeks approval for things such as travel itineraries. He was also concerned about the 26% increase in the cost of goods and services and would like an explanation grounded in good governance. He also asked if the awards that Adv Madonsela had recently received relate to the work of her Office or are personal. If there is any monetary award attached, whether proper declarations are done. Having heard the PPSA's lament about resources, he asked about the status of unfunded posts and the financial implications of outsourcing the work of the PPSA. Lastly, the Public Protector is on record saying that her son had had an accident with an official vehicle and the Public Protector informed the public that she was to pay the costs personally. He would like to know if and when these monies were paid. He welcomed the focus on the Gogo Dlamini cases.
Adv Madonsela replied that she noted Mr Bongo’s views on section 181 and said that her views differ. The Nandoni Dam report by Adv Mushwana had prescribed particular remedial action. When she assumed her position, the remedial action was already being followed up on. On irregular expenditure, the PPSA has been cited based on the 90/10 and 80/20 principle, which requires a bidding committee to be set up for procurement and this was not done. She has indicated her discomfort at the finding to the Auditor General, but until the decision is changed, it will be respected. At the last meeting with the Auditor General, they undertook to go back and review the decision and they would respond.
The Chairperson interrupted saying that an account of the negotiations with the Auditor General will impede the Committee and result in the Committee not finishing its work. He thought Mr Bongo’s questions were straightforward such as whether the flights abroad were personal or work related.
Adv Madonsela continued on the itinerary matter, saying that the Office of the PPSA plans its itinerary and this has been done for the past 19 years. The matter is motivated to the CEO and a decision is made. All the trips she had taken were official and she has not taken any personal trips. As a former public servant, she had felt uneasy that her predecessors did not inform Parliament and she has changed the system slightly so that the PPSA now notifies the Speaker of Parliament and Deputy Minister of Justice. The letters indicate where the Public Protector is going and why they are going. The international awards she had received were the Transparency International Award and the Time 100 Most Influential People award. The former had been paid for by that institution and the latter was combined that with a benchmarking exercise to New York. The only award that had financial implications was the South African of the Year Award, which had R100 000 attached. There had been a request for an account number in which to deposit the money, but she had indicated that she was going to form a trust dedicated towards autism. The money has not been received, because the trust has not yet been created. She had no intention of using the money personally. Together with her office, she had also contemplated using the money to fund an award for the top investigator, as these have been postponed due to lack of funds. The procurement of independent investigation consultants is the expense which the Auditor General has flagged. This had been approved and funded by Treasury to deal with the backlog cases. She attempted to answer the question about her son and the motor vehicle accident.
Ms Pilane-Majake interjected that the very matter is before the OSID and should not be dealt with until that forum reaches a conclusion.
The Chairperson agreed that Adv Madonsela should not have to account for the same thing in two different fora.
Ms Mathapo (ANC) said that PPSA is supposed to be the body with the highest integrity in the country but its Annual Report speaks of fruitless or wasteful expenditure of approximately R13 million, irregular expenditure of R4 million and the amount of R540 700. As the integrity body of the land, how is the PPSA to ensure this is rectified? Specifically why the amount was written off and what in her line of work constitutes unrecoverable expenses. Having heard of the low morale in the PPSA as evidenced by the resignation of CEO and COO, what is the Public Protector trying to do to lift the morale of staff. She asked if the PPSA receives donor funding, if so how often, and does the PPSA approach donors or do donors approach the PPSA? Further, she asked about the approach taken. Lastly, she asked how many cases have been accounted for this financial year and has the PPSA referred some of these cases to sister organisations such as the Special Investigating Unit and South African Human Rights Commission (SAHRC).
Adv Madonsela replied that the fruitless expenditure relates to the impairment of the case management system. This system was purchased in 2008 and an improper process was followed. The Auditor General red-carded the expense in 2009 resulting in the Public Protector appearing before the Standing Committee on Public Accounts. The Auditor General decided that it would be better to impair the system at purchase, despite the fact that some value came from the system. Therefore, this fruitless and wasteful expenditure happened in 2008, not in the year under review. She added that the appropriate person to ask about the audit notes would be the Auditor General. She said the CEO did not resign because of low morale, but rather, as another Member had mentioned, because his term had expired. His contract was only renewed for one year, under specific conditions such as requiring a clean audit, due to representations to the effect that the five year term had not been reached because of a suspension. The matter was brought into the system and it decided that the contract be renewed. The former CEO however then received an offer to be the ombudsman for private housing schemes, which resulted in his leaving. On the low morale of staff, various efforts are made, including interacting with staff and expenditure on things to benefit staff such as cellphone allowances and addressing security concerns. On the existence of donor funding or any trusts, the social responsibility trust that would be set up, would be the first. She noted that R15 million had been reallocated from goods and services to personnel, which lead to a snag in operations.
Mr M Maila (ANC) said that while there are indications of the PPSA not performing due to a lack of resources, yet looking at the report for the first quarter of 2014/15, the PPSA outreach campaign had intended to reach 1 million people and in fact reached 5 million. He noted a further example and asked if this is not a case of under targeting or does it have no impact on the human resources of the PPSA? He asked how many offices the PPSA has and what the current status is of the leases.
Adv Madonsela replied that the over-performance in the outreach campaign is because media provided coverage beyond expectations. The Public Protector spends no money on advertising and even the Good Governance Campaign and Week were cancelled this year, because of funding constraints.
Ms Pilane-Majake was concerned that the report is not being presented informatively, because there should be more in depth information, such as the types of cases handled, the time they took and the success of measures taken. She emphasised that it is important for the Members to be “brought into the office” so that they can understand what is done in the Office. She was concerned about the sweeping statement made regarding the ongoing cases contained in the report. On the funding request and the approved structure growing from 432, there is no indication of who these people are. She could not recall the Committee approving the structure of adding 100 position to it. It is important for the Office to get the go ahead from the Committee so that they stay on the same page. She reminded the PPSA that Committee had advanced it an additional R90 million and this placed a large budgetary gap between the PPSA and other Chapter Nine Institutions. She warned the PPSA not to proceed contrary to the austerity measures which National Treasury was imposing. On the money from Time magazine, she asked if the PPSA had a disclosure system, particularly as these were personal funds. She asked if the Public Protector had disclosed the funds so that the Committee could be aware of any third parties which could be active within the PPSA. Page 94 of the Annual Report indicates that three additional positions were approved, that of a senior manager, a provincial representative in Mpumalanga and a business engineer. She asked if these positions were budgeted for in the financial year under review and if the Human Resources officer was aware of this. She sees that a high number of mobile clinics were conducted, but there is no information as to who staffs these or what they do. She asked if these were the only positions approved but not budgeted and, if not, what were the others.
Adv Madonsela replied that Time Magazine had not given her any money and certainly not USD$100 000. The trip to New York was combined with a trip to the World Bank, and Albany and Harvard Universities which had already been planned, but postponed for financial reasons. She emphasised that no money had been deposited into her account by anyone, although prize money had been offered by ANN 7 for being South African of the Year. The Public Protector had responded in writing that the she was in the process of forming a trust which would accept the money. The PPSA does not receive donor funding, although GIZ does fund activities but this comes through National Treasury.
Ms Pilane-Majake interrupted asking for a definitive answer as to whether the Public Protector makes declarations of donations.
Adv Madonsela replied that she was getting to that and would like an to be allowed to answer all the questions. The R100 000 was disclosed because the notification had been received although the funds were not transferred. A hardcopy notebook exists which contains disclosures of everything ever received by PPSA.
The Chairperson asked the Public Protector to agree that there is limited time and certain questions simply required a yes or no answer, without explanation.
Adv Madonsela said with respect that there had been a context surrounding the question which she had needed to clarify. As perceptions are the only reality in people’s minds it would be unfair to allow statements which created an impression, unintentionally, to go unanswered. As the prize money had not yet been received she would welcome suggestions about what it should go towards, although she had identified issues around mental health.
Adv Madonsela pointed out that the PPSA was not running as though it was business as usual and it had cut itself to the bone. She drew the Committee’s attention to Mr Andries Meyer who had admitted at a good governance conference that the PPSA had been treated unfairly about funding and indicated that in 2009 the budget of the PPSA and SIU were the same but it had grown to a R450 000 differential. Where commissions such as the Marikana Commission are running out of funds, government grants these, yet there is no equal treatment for the PPSA. She said that the PPSA would be submitting an evidence based comparison of how sister organisations have been treated over the last five years compared to the Public Protector. Ms PIlane-Majake had drawn a comparison with the South African Human Rights Commission and Adv Madonsela invited her to compare the number of cases handled in total and on a monthly basis. The organogram consisting of 432 posts had been approved by Parliament, before Adv Madonsela had assumed office. The structure containing 566 posts had been approved by the Minister of Finance, after it had gone through a rigorous testing process by the Department of Public Service and Administration (DPSA). DPSA had indicated that the PPSA was administration heavy and operations thin. The Acting CEO had identified that the staff in the financial division are inadequate and the PPSA is found wanting because the CFO is not in the office. The next most senior position is a senior director, recently promoted from a deputy director. She added that in this period of belt tightening, section 237 of the Constitution still applies, which requires constitutional matters be given priority.
The Chairperson asked Adv Madonsela to stick to the contents of the report, rather than speculate about what other institutions are getting or what the PPSA could have done had it had the funds.
Adv Madonsela replied that Ms Pilane-Majake had indicated that the PPSA had been treated better than other Chapter Nine Institutions and she was responding to this narrative of comparison.
Ms Pilane-Majake raised a point of order, saying that the question has been answered and the unequal treatment had come in with the R90 million supplementary funding received by the Office. This funding was what had created the gap between the PPSA and other Chapter Nine Institutions and this had sparked her concern.
Adv Madonsela answered that the advantage is not substantive, because one must look at the percentage in growth of the caseload of other organisations as compared to that of the Public Protector. She later added that PPSA does refer cases and this was presented and is in the Annual Report. The institutions to which cases are referred include the SIU, even though the Unit requires a presidential proclamation to investigate there have been instances where the PPSA has requested the attainment of such. Although the presentation has not indicated the exact division of how many cases are referred to which institution, this can be done. On the triaging process, this was included in the presentation and the previous Committee had asked for the triaging document to be tabled, which was done. This document is circulated in the PPSA and it indicates how many cases were received, how many referred, how many rejected for lack of jurisdiction and how many accepted. She gets involved in this process through spot checks, with the size of the Office being a restriction and the provincial offices having to do this on their own. The success of the triaging process is evidenced by the decline in cases where a sector receives its own ombud, such as the South African Revenue Service and Correctional Services.
Mr Mpumlwana said that he had said in the past that it seems that the organisation is an investigator, prosecutor and judge, he would therefore like an explanation “in simple Zulu” of what the PPSA understands remedial action to mean. Does the PPSA pursue criminal charges like the South African Police Service and Special Investigating Unit. Who is this remedial action taken against and is this binding on organs of state, Parliament? Although the Deputy Public Protector has denied it, it seems as though the PPSA is indeed a fourth arm of government. While the PPSA is seeking additional funding, which may be a good thing, it has conceded that it shares responsibility with most Chapter Nine Institutions and yet investigators are being procured where the cases could be referred to organisations with capacity. He asked how many cases have been referred by the PPSA to sister organisations and what types of cases these were. He asked how many offices the PPSA has throughout the country and what the status is of the lease at the head office. The CEO’s term had expired, yet they continue to retain the position, despite the audit having findings against this. He would therefore like reasons for the CFO and COO leaving the organisation. He did not see a disclosure of donations in the Annual Report and would like to know if any other donations have been made. He was also concerned that the presentation did not clearly indicate how the PPSA determines which cases it is to retain, particularly as it has indicated that it shares its mandate with other organisations.
Adv Madonsela replied to his concern about being both investigator and judge saying that this is true. This is a civil law approach to ombuds and in our common law system this seems strange. In countries such as Nigeria, Uganda and countries in continental Europe with a more civil law grounding, this is the norm. The SCA judgement Mail & Guardian v Public Protector, describes the nature of the Public Protector’s powers which lead from an independent investigator to the determination of wrongfulness. The PPSA does refer individuals for prosecution, where evidence of criminality is found during investigations; however the Office does not determine criminality itself. The Public Protector being empowered to refer directly to the National Prosecuting Authority, as opposed to the SAPS, implies that it is tasked with investigating crime. On the binding nature of the remedial action she said that if Parliament had been investigated it would be bound by the remedial action taken. However, if the PPSA is investigating the executive, then the remedial action would bind the institution. The PPSA does not invoke the sheriff to enforce its remedial action, if there is non-compliance it is followed up culminating in referral to Parliament. It is for Parliament to question the non-compliant institution. On the PPSA acting as a fourth arm of government, she asked in what way the Public Protector acted in anyway different to any other Chapter Nine Institution exercising its institutional independence. Alternatively, how was it acting contrary to section 8 of the Public Protector Act. If Parliament wants to be operationally involved this must be with the leave of the Public Protector and she was not aware of any occasion where the Public Protector has refused this participation. An example of this is the Vhembe Pension case and Parliament had requested the PPSA to present, despite the fact that the report was provisional and upon realising this the Committee cancelled.
Mr Redelinghuys asked about the approved staffing structure, which had been approved four years ago and as yet has not been funded; specifically for the main reasons for the denial of funds aside from the austerity measures provided. He commended the PPSA for not paying any performance bonuses paid to anyone at the PPSA, which is an indication of austerity measures. He asked if this policy would continue going forward. He appreciated the deep insight given in the Annual report from pages 31 to 57, particularly having given details on investigations conducted, a breakdown of the 10 offices of the PPSA, the number of cases dealt with including the 6000 referred or declined and where the main fault lines are in the organisation. He also asked about the percentage of increase in the caseload, compared to the increase in budget. He then looked to the case dealing with the RDP housing under the Department of Human Settlements in Mpumalanga, because there seemed to be difficulties with cooperation, if not contempt, at play. He was aware of multiple complaints of maladministration and would therefore like a copy of the report illustrating this. He understood that an MOU had been concluded with the Department and remedial action was being followed up on. Further, what had been learned from this experience which could be replicated, particularly as this was a provincial department and not a person.
Adv Madonsela said that the PPSA’s workload had doubled while its budget had not increased correspondingly. She added that it was correct that the Annual Report contained an explanation of the work done by the Office, including what was contained in the Learning without Books report.
Mr Bongo again appreciated the prioritisation of the “Gogo Dlamini” cases, but noted that resources also affected these early resolution cases. Therefore, what help has the PPSA gotten from institutions such as SITA . He also asked about the irregular expenditure, particularly with the CEO having been exposed to allegations of financial misconduct. On the trips abroad, he said that this bordered on irregularity, as in other organs of state a Cabinet memorandum is required accepting the alignment of the trip with government priorities. He had also not been answered on the issue of the procurement of consultants at a cost of R90 000. He felt that this too could be an instance of maladministration.
Mr Redelinghuys interjected, saying that it is for the auditor general to determine whether there has been any maladministration and this office has issued its opinion. Further, that it was not for a Committee Member to make such serious allegations.
The Chairperson said that the Members have studied the reports and they will obviously take different views and there is no need for debate. Members should be tolerant and allow each other to express their views, and if the Public Protector feels questions are unfair it is able to defend itself.
Ms Pilane-Majake reiterated that this was not necessarily about the Public Protector herself and any of the people on the delegation could make representations on behalf of the Office.
The Chairperson assured the Public Protector that everybody has the right to freedom of speech in the house and that she had his fullest protection, if anyone was unfair he would defend her.
Ms Breytenbach said that she hoped the Chairperson would remember the ruling when the Committee next sat with the National Prosecuting Authority.
Mr Bongo continued turning to page 135 where reference is made to fruitless and wasteful expenditure, around the legal opinion sought by the CFO. He would like to know how much was involved, because he felt “a lot was being concealed”.
Adv Madonsela said that the notes on the financial statements are the words of the Auditor General and that PPSA was not concealing anything. If the Committee sought more information the Auditor General should be asked for this. On the need for cabinet approval for trips abroad, she reiterated the need to have a single principle operating and if this is to apply to the Public Protector it must equally apply to Ministers and other officials. As she had indicated, all trips were undertaken properly.
The Chairperson concluded by observing that the PPSA has indicated that it plans to run contempt proceedings. He wondered whether when reports are completed and released to the media this contributes to non-compliance. When matters are put in the public domain people may be tempted to misinterpret the applicable law. He said that the PPSA had not indicated in the report which remedial action has been defied and therefore the Committee is not placed to be of assistance. Regarding complimentary oversight and Parliamentary oversight, he said if both institutions respect these concepts it will reduce the tension. The PPSA is tasked with complimentary oversight and if the PPSA reports to Parliament, then it will be able to relieve it of the burden of getting the departments to comply. The Committee is willing to assist, but needs information to be able to do this. He stated that the Committee respects its institutional and decisional independence, however the relationship with the Committee needs to be worked on in order to further the common objectives. On the high number of resignations and low morale he suggested that this could be a symptom of a lack of democracy in the office, because if the staff was engaged in prioritisation of the work and formulation of the programme this would aid controlling the amount of pressure on staff. Regardless of whether they are not involved in good faith, this may lead to a dysfunction office which he thought was the case at present. The approved structure seems to him to be a bloated structure and felt the assistance of the Committee would be required. He said that the Public Protector Act may be unclear and making life difficult; therefore perhaps the Act needs to be checked for consistency with the Constitution. Lastly, he said his reading of the Annual Report the PPSA’s assets are R1 million and debts close to R40 million, meaning the PPSA is not a going concern. Also that salaries exceeded the budget by R19 million and how can this be justified. Surely this boils down to an indication of an inability to manage the budget. He has learned that positions were filled, even where there were no funds and contrary to the advice of the CFO and their deputy. There is also the question of outreach and dialogue, how are these expensive activates undertaken when the budget is so strained. He therefore reiterated that there seems to be a problem managing the budget and consultation with actors such as the CFO. Lastly, he asked for motivation as to whether the requested funds are really to deal with the insolvency or if it is to address the concerns which have been identified in the Committee. Even when one deals with the needs, there is a question of prioritisation, because if the whole world’s problems are taken on board without consideration for capacity this will not be good for the institution. He therefore felt that the PPSA needed more help than the Public Protector herself believe, because such an important institution being insolvent was bad for the reputational image of the institution. He said for the Committee to properly support the institution a full disclosure of the problems must be made.
Ms Pilane-Majake said that there are still unanswered questions, such as the list of cases that was requested to give an idea of the types of cases handled, the number, how cases are prioritised and what causes the backlog. This information has been requested for some time and has not been provided. On the disclosure she said that a notebook is insufficient and the norm is to have forms which are filled out and signed, committing the individual to the disclosure; as is done in Parliament. She wanted a simple indication of the existence of the system. There had also been indications that regulations were to be developed by the office and the Committee had requested that these be shared with the Committee, so that it can be part of the approval of these. On risk management, the gap in positions between the CFO and next most senior financial employee should have been identified long ago by risk management or internal auditing processes. As this is not the case she was concerned about the state of the internal audits conducted within the organisation, as this is a serious risk area. A question was asked about filled positions were budgeted for and the same for the external investigation panel. Further, what type of work the external audit panel conducted.
The Chairperson said that it appears that there have been many requests for information and this has not reached the Members. Given the obligation for the Members to support the PPSA and their willingness to do so, the Committee should do an audit of all the requests made to the Office and the corresponding information supplied, so that it can inform interventions that the Committee needs to undertake to assist as required by the Constitution. He said this so that the Public Protector did not feel constrained to answer all the questions before it.
Adv Madonsela said that the best way that Parliament could help would be to honour the decision made five years ago regarding the funding of the approved establishment. The second thing which the PPSA is asking the Committee to respect the fact that DPSA as professionals have scrutinised the request for posts, have reorganised the organogram and only once their rigorous standards have been met will the structure be approved. This lead to the Decision of the Minister of Finance and National Treasury to approve the organogram consisting of 566 posts. There were worries about the numbers of technical posts, investigative posts and outreach posts. The outreach officers do two things they inform people about the activities of the PPSA, in line with the Constitutional injunction, and try to resolve complaints in the field with advice instead of formally taking on the case. On the risk of having junior people in the finance department she said that this risk has been identified a long time ago and the post of deputy director of finance has been created to help alleviate. She said it should be remembered that to fill posts, funding is required. An additional measure to alleviate the risk was requesting an organogram where the CEO is a director general, which would lead to a higher ranking for all posts under that. However, because of financial constraints this was not possible and the CEO was placed at deputy director general level. It does not take “rocket science” to understand what the problem is within finance and no CFO in the past five years has served more than one year; one having died, one shifted aside due to problems and the other leaving for a better position. A further aspect of concern was that the reporting was being done manually and this is now automated. The position of risk manager was created, but the position is unfunded and could not be filled. On Ms Pilane-Majake’s concerns about the internal audit committee, she said that this was currently being outsourced and the service is excellent, however it is not the same as having an internal audit which can pounce at any time. There has now obtained a compliance officer, whose job it is to ensure compliance in areas such as procurement. The post of the Mpumalanga provincial officer and whether this was done contrary to the advice of the CFO, she said that the memorandum reflecting this decision did not indicate that the Deputy CFO was against the filling of the post. The CFO said that the PPSA did not have money in the financial year under review and therefore the position was filled with effect from 1 April 2014. At that stage the advice did not indicate that there would not be money in new financial year. This is the first time that she had heard about the Deputy CFO being against the business process engineer. Further, these services will be required in the development of the case management system, to avoid the problems experience in the past. An objection which she had been aware of was, that a member of staff had advocated the appointment of a compliance officer, because this was a greater aspect of risk management. On the assistance to be given to the PPSA by the Committee, she said that this would have to be done bearing in mind the institutional independence of the Public Protector. She said that the PPSA is not operating as though it was business as usual and it has scaled down its activities as a result.
The Chairperson interrupted saying that if anything further was to be answered it should be the question of whether the PPSA was solvent or not.
Adv Madonsela answered saying that the Annual Report had indicated that the Office’s liabilities exceed its assets.
The Chairperson asked what this means in law.
Adv Madonsela replied that this meant that the PPSA was technically insolvent, if it is not given money to deal with the shortfall it has. She emphasised that a glib answer in this respect would be problematic, as an accusation has been levelled. She explained that the outline from the Auditor General explains the issues, for example the Public Protector’s allowance not being budgeted for, as had been done in the past.
Ms Pilane-Majake interrupted saying that in the interests of time the remainder of the answers should be delivered in written form.
Adv Madonsela said that even Adv Mushwana had complained of accusations being made publicly and then the responses being provided in private via written responses.
The Chairperson raised a point of order, saying that Adv Madonsela had correctly indicated that the organisation was technically insolvent, unless further funds came in. This answer the Committee was happy with and accepted.
Adv Madonsela continued saying that she was trying to explain the components, because if the bare statement is run with then there will not be true clarity.
The Chairperson said this clarity can be made in the written responses agreed to.
Adv Madonsela argued that the Committee is a public platform.
The Chairperson said that he felt this had been a good engagement and assured the Public Protector that this was not the end of the relationship with the Committee which would entertain the explanations in the future.
Mr Redelinghuys interjected that it had previously been said that the Public Protector is one of the highest integrity body in the country and yet Members are more concerned about their lunch. The Chairperson has made serious allegations of the Office being dysfunctional and insolvent, but the Committee and the public is being denied an explanation.
The Chairperson said that Members should not get emotional as this is a meeting of Parliament.
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