Public Protector on 2015 Strategic Plan

Meeting report

Public Protector presentation
Adv Thuli Madonsela, Public Protector, said the Office of the Public Protector cherishes this opportunity to engage the Members of the Committee. The presentation would consist of a short overview by herself; the main presentation of the strategy by Dr Maria du Toit, Chief Executive Officer, and a brief presentation of the Office’s human resources and budget by Mr Kennedy Kaposa, Chief Financial Officer.

The Chairperson informed Adv Madonsela that the Committee had set aside two hours for the meeting, dedicating an hour to the presentation and discussion respectively and asked her to bear this in mind.

Adv Madonsela thanked the Chairperson and said the Office had tried to get in contact with the Committee in advance to prevent the presentation being ended prematurely.

The Chairperson said this is not the first time Adv Madonsela has presented before this Committee and he had only wanted to prevent a reoccurrence of the last meeting which was felt to have been cut short.

Adv Madonsela said this engagement is the closest that the Office of the Public Protector has to a budget vote and it is taken very seriously. This opportunity should be used not only to engage with the Members, but also to account to Parliament in terms of section 181(5) of the Constitution. It should be remembered that Parliament represents the people of South Africa and this solemn opportunity should be used to engage with the people of South Africa.

Adv Madonsela noted that the Public Protector Strategic Vision 2020 remains the anchor of the institution and has been adopted by the previous Committee in 2010. After a long process of consultation with the Office and the public to determine the nature of the Office and how it should discharge its responsibilities. This vision is “to be an effective, accessible and impartial organisation that rights administrative wrongs and promotes good governance in state affairs”. The organisation purpose remains “to be the conscience of the state and to act with integrity and fairness”. The Public Protector’s strategic focus is to balance accessibility, rigour and speed and aims to ensure thoroughness in its investigations to achieve just and relevant outcomes. All in pursuit of its constitutional mandate derived from sections 181 and 182 of the Constitution.

Strategic Overview
Adv Madonsela said around five days ago a student had approached the Public Protector and said they had been wronged by an institution in state affairs, asking for its assistance. Without the assistance the student would not be able to write a test that coming Saturday and if they did not write that test they would essentially not be able to graduate as the test was in a course they had failed the previous year. The reason the student could not write the test was because the university had indicated that if they were not going to write the test they should have been informed within three days of the test. The student had been under the impression that they had been suspended for non-payment of fees and they were away from the university because they were avoiding being physically suspended and embarrassed. The fees were paid by a municipality and this municipality did not pay the fees timeously. The previous year this had resulted in a member of the university administration physically removing the student from the campus in front of their colleagues. Before the test the university had informed the students that their fees had not been paid and if they were not settled by the start of the next week, they would be suspended. The student assumed that the university would be aware of the suspension and know that they would obviously not be able to write the test. The Public Protector then immediately engaged its early response team and contacted the relevant faculty dean.

The Chairperson interrupted asking whether the report being given was appropriate to the type of sitting.

Adv Madonsela interrupted asked for the Committee to allow her to present as she deemed fit and the point will be made. She sincerely asked for the Committee to allow the Office, as Ministers are allowed, to finish its report in one hour.

The Chairperson said this would be allowed and what is being given is a report which could be given in writing and if this diminishes the allotted time the Committee is not to blame.

Adv Madonsela again asked to be allowed to present as she deemed fit. When the Ministers speak about what they have done on outreach or the President speaks about an interface he has had this is allowed and she was only asking for the same.

Mr B Bongo (ANC) said it was not correct to equate this meeting with those with Ministers or the President, because this meeting has been called for a specific purpose. Stories which were not in line with the mandate may waste time.

Adv Madonsela said she would finish the story and make the point regardless.

The Chairperson said the meeting should be conducted in an amicable manner and no one was going to hinder her. All that was being said was that the report being given could have been submitted in writing and this may result in time running out, which is trying to assist her.

Adv Madonsela continued saying that the early resolution team was immediately engaged and the dean of the faculty was very helpful and a written undertaking that the student would be allowed to write the test was given. The reason she had told this story was because the approach taken was an example of the strategic objective and organisational purpose in action. The vision is to right administrative wrongs of the state while promoting good governance in state affairs. At present the early resolution effort was completed, but the second phase is where the Public Protector seeks to determine what the systemic problem in government is that leads to students facing problems with having state institutions pay their fees. How many students are deregistering because of similar problems? She had spoken to a student who was forced to sleep in a public toilet until the state institution responsible for their fees paid these. Lastly, once the specific instance of non-payment is fully investigated, the focus turns to identifying whether this money was in fact used in an unplanned manner and recovering these funds. 

Adv Madonsela said while the Public Protector’s vision and purpose remain the same it has realigned and reengineered its business processes to achieve more with less. Mr Kaposa would be speaking to this. From her side she could say the Public Protector was rolling back its public outreach and instead of doing broad stakeholder consultations the Office is moving towards social media and leveraging stakeholder events to speak on platforms created by others. The Office has also focused on direct engagement with stakeholders and government. Also resources have been channelled towards building internal complaints resolution mechanism within government. The Public Protector has written to Cabinet asking it to allow each government department to have a dispute resolution mechanism which is the Office’s representative, who will be trained by the Public Protector. This would ensure that in the case of the student spoken about above, they would not have to phone to a far off office and this would be avoided by having an internal dispute resolution mechanism similar to an ombudsman to resolve these problems. Lastly, the Public Protector’s own business structure have been re-engineered to ensure more synergy, for example early resolution and service delivery are now one branch overseen by the Deputy Public Protector. While she focused on the non-ombudsman functions including ethics, integrity and anti-corruption, under the good governance and integrity branch.

Adv Madonsela said the Public Protector feels confident it can reach the next level is because of the achievements and challenges experienced during the re-engineering process over the past year. The strategic objectives inform the Office’s activities and performance highlights are the following. On accessibility which is a constitutional imperative, approximately 19 million people were reached. The challenge is ensuring the service is accessible when required. The Office has rolled back provincial offices and is focusing temporarily on mobile offices. On investigations, the PPSA concluded 21 170 cases against a workload of 29 303 cases. This is less than last year, but many of the cases concluded were systemic in nature or were multiple investigations. The focus is not only help with the case at hand, but trying to address the patterns of conduct in state affairs. Currently it has been noticed that there are undue delays, unlawful prejudice and at the tail end corruption, improper enrichment and unethical conduct. On good governance, the Office has noted fault lines with regard to executive privileges. A common interpretation of the Executive Members Ethics Code needs to found and a dialogue has been opened up. Thus far a Cabinet committee of seven members which was assigned to deal with the matter, has been engaged.

Strategic Plan and Annual Performance Plan
Dr Maria du Toit, Chief Executive Officer, thanked the Committee for supporting the mandate of the Public Protector, because it is clear that there have been a number of highlights for the country in its approach towards maladministration, anti-corruption and impropriety.  The Office is committed to its three fold mandate: to investigate allegations of impropriety in state conduct and administration of the different sphere of government, to report on such conduct and lastly to take remedial action. Internal reflection on this mandate is important for the Office to know how it is to go forward with the present vision. The Public Protector Act was a great assistance in focusing the revision of the Office’s priorities, how it can focus its efforts and streamline its processes. She specifically highlighted the investigation of maladministration, the abuse of power and state resources are all highlighted in the Act. Importantly how the Office is to resolve or at least attempt to resolve disputes, either through remediation, negotiation and conciliation. There have been a number of successes mandated by this view. The Public Protector is not an island and it may derive autonomy from the Constitution, but it supports the national priorities of the government. The President’s State of the Nation Address spoke clearly to the anti-corruption attempts introduced in the country. The Office is linked to the National Development Plan’s, particularly the emphasis of zero tolerance to corruption. Citizens need to be empowered to hold public officials to account, for this to happen it must be ensured that the Public Protector has the resources and credibility to investigate any allegation. Further, when the investigation is concluded that there action is taken.

Dr Du Toit said under Programme 1: Administration the Public Protector aims to create an effective and efficient organisation, to ensure optimal performance. Once it has been decided that there are multiple priorities necessary for dealing with the social concern within the country, one will always deal with a restrained budget. This generates the need to try and align a credible implementation of mandates and an accountable system of processes. Programme 2: Investigations, is the core business of the Public Protector  and aims to ensure prompt investigation of allegation of improper conduct or prejudice in public administration and to promote good governance. The Members would remember that Parliament and the consultation process with stakeholders supported Programme 3: Outreach, however in the running of any outreach programme it is important that the basis of the objective is actually achieved. In the case of the Public Protector it all boils down to access and this can be achieved through a number of a ways including, the excellence of the investigation itself, the righting of a particular instance of negativity, national and regional support provided to the regional offices. Importantly that the outreach programmes can be capacitated.

Dr Du Toit moved on to the Annual Performance Plan (APP). She wanted to align it with the following thoughts, emphasis on operational efficiency, the optimal utilisation of human resources and an integrated approach to service delivery. The existing human resources capacity at the Public Protector is constrained and what is need now is a fresh approach to how the needs in investigation can be addressed. While investigators are qualified on a specific skills base, how integrating these process is important for optimal utilisation. Cooperation between the Public Protector and other Chapter Nine Institutions, which have a similar autonomous mandate. On the involvement of Parliament, it is important to allow the opportunity for advising the Committee and Parliament generally to assist in the discharge of its duties. So that the tool created by the nation can make use of other oversight structures to help with the implementation of the outcomes of its reports and other ideals.

Dr Du Toit then dealt with the specific projects under Programme 1: Administration for 2015/16. The Public Protector is doing everything it can to obtain an unqualified audit opinion. The necessary checks and balances are being done, especially with internal financial controls. For the Public Protector to be effective in carrying out its core business, a funding model needs to be developed, balanced with an appropriate investigation load management model. Looking at the actual performance management and development system, the alignment of the internal processes to address performance failures and successes will be important. Mr Kaposa and herself had undertaken the review of internal business processes. She stressed the importance of developing a proper record management system, to guide policy making and the consistent application thereof. The total budget for the programme was R67.62 Million.

Dr Du Toit said under Programme 2: Investigation three key strategic objectives have been identified being: prompt justice including remedial action and the promotion of good governance in the conduct of state affairs. The reporting format and the manner in which the implementation of those reports is taken forward is also important. Under the first objective, the need to develop a case load model for the Public Protector is noted. Not all cases will require the same amount of resourcing and there needs to be focus on the identified priorities to ensure there are sufficient resources for those investigations. There is an increasing backlog and stringent measures are being put in place to meet the 30 December 2015 target for dealing with all cases. She clarified that this would include cases outside of the Office’s jurisdiction and it does advise clients where there is a more appropriate body to deal with their case.  There is a need to enhance referral methods and the Office needs to responsibly tackle priority cases brought by the normal citizen. Looking at access it is not only about reaching out, it is about finalising those cases which the institution has not fast tracked to the best of its ability and these will be the focus. The Public Protector has experienced litigation challenges recently and more litigation is anticipated, it will be important for a panel of legal experts to be appointed. A quality assurance manual will be developed to be able to track an investigation. On good governance, the Public Protector will continue to report on cases under the Executive Members Ethics Act. The Office is attempting to finalised four quarterly reports on the implementation of its remedial action. She reiterated that the establishment of complaints resolution mechanisms at selected state institutions would also be pursued. It will be important to ensure there is an understanding and respect for the respective roles in a state institution and the Public Protector will be assisting the facilitation. All options for procedures and mechanisms to enhance this process will be explored. The total budget for the programme is R170.8 million.

Dr Du Toit said Programme 3: outreach focuses on accessibility for all persons and communities. It is paramount to ensure the Office does not over promise and underperform. For the Public Protector to be able to deliver what it promises a significant increase in funding is required, but the Office is also refocusing its approach. An example is Managing mobile offices, which gives the obvious benefit of mobility and does not incur the overhead costs of a fixed building, not to say that this comes without costs. This will however enable the institution to reach out within the regions and provinces. The development and implementation of a comprehensive outreach is planned to engage complainants, stakeholders. This will facilitate collaboration in dealing with matters of national interest. The total for this programme will be R7.6 million and she asked for the Members to reflect on this figure.

MTEF Budget allocations
Mr Kennedy Kaposa, Chief Financial Officer, said he was glad to be presenting the budget of the Public Protector and hoped to highlight some of the resource constraints, so that the Members can be cognisant of challenges of the challenges faced. The Public Protector has a budget of R246.1 for 2015/16, from a baseline of R218.1 million in 2014/15 with the increase being due to an additional allocation of R15 million and a cost of living adjustment of R12 million. He expressed the Office’s gratitude to Parliament for the additional funding, however this is far from meeting the resource needs. Specifically capacitation of the approved structure and operational costs. The budget allocation will reach R280.5 million by 2017/18, following two additional allocations of R20 and R25 million per year. This is allocation is for litigation, retaining the trainee programme and leases. With an additional R3 million in the outer years for capacitation of the approved structure.  The breakdown of the allocations per programme over the MTEF grew from figures presented by Dr du Toit to R R75.38 million for Administration, R196.48 for Investigations and R8.6 million for Outreach by 2017/18.

Mr Kaposa said the budget priorities and some highlights include the budget mainly being dedicated to investigations with R170.8 million allocated in the current year. Funding of service delivery points, including the head office and nine provincial offices, amounts to approximately R14.5 million, He highlighted that the major constraint is that the Office is not funded adequately to carry out its mandate. Especially regarding funding for capacitation of the approved structure and some operational costs which the Office would like to undertake.  In terms of the approved structure, which was approved in 2009, the Office has 598 approved posts and yet only 322 are funded. There are 142 investigators and 180 support staff. The unfunded posts are a staff complement of 276, requiring an estimated budget of R160 million. This demonstrates that the Office is constrained from implementing this structure.  His last point was that the unfunded operational costs would be capacitation of the call centre requiring R2.1 million, litigation requiring R10.5 million, R12 million to implement the case management system. To improve the Office’s footprint R14 million is required. Therefore, altogether the Public Protector requires R39 million for these operations. If the Office is to implement the structure which was approved by Parliament, following consultation with the Department of Public Service and Administration (DPSA) and the Minister of Finance; and the operational costs the Office requires R200 million to carry out its mandate. 

Conclusion
Adv Madonsela reiterated that the Public Protector remains anchored in Public Protector Vision 2020, with the same strategic objectives, but with tactical changes to ensure greater efficiency, accessibility and that it can provide the people of South Africa prompt justice. She said the budget is as presented by Mr Kaposa, but in addition the Office is requesting Parliament to consider asking treasury to give the Office a baseline increased by R200 million. Mainly based on the structure approved by Parliament consisting of 598 posts, of which only 322 posts are funded. Of the R15 million additional allocation, R7 million was for litigation and R8 million was for the trainee programme which could not afford to retain the full 100 trainees and was reduced to 80.

Discussion
The Chairperson said he had said at the outset that information should not be given which could be given in written reports. He noted that this did not sit well with Adv Madonsela, but it was an attempt to avoid the team taking 53 minutes to present, yet everything which was said has not addressed any of the issues raised by the Committee in last year’s sitting, nor in the Auditor General’s (AG) report. What has happened is that the Committee has been reminded of the need to fund a structure, which it had been told previously. Which means that this session has become meaningless and what the Office has really been doing is to motivate for more funds, using the same motivation as the previous year. Mr Kaposa also informed the Committee of plans about how things should be done, in addition to arrogating additional responsibilities to the Office regarding assisting Parliament and creating dispute resolution mechanisms in government, before addressing the internal issues of the Office. The critical things which the Office had addressed include.

Mr W Horn (DA) rose on a point of order and said under the Rules of the National Assembly the Chairperson was abusing his powers. The Public Protector presented as she deemed fit and the Chairperson is presenting view on behalf of the Committee which he had not consulted it on. Personally he differed from the opinion that the Public Protector has not addressed the issues raised previously, as he had specifically noted a number of changes have been spoken of by Dr du Toit and Mr Kaposa. He did not think it was the purview of the Chairperson to take the Public Protector to task, he was to chair the meeting and allow Members to engage with the Public Protector.

Ms G Breytenbach (DA) seconded Mr Horn’s submission.

The Chairperson said Members would be given time to speak and the same should be given to him. All he was saying is that the Public Protector is entitled to address the Committee, but it must also address the concerns raised by the Committee which has not been done.

Mr Bongo said what has been raised by Mr Horn is simply a waste of time and the Committee should proceed. If Mr Horn was referring to rules he must quote specific rules and not make blank statements. Which rule says a Chairperson cannot give an overview of where the Committee is coming from. He felt this was out of order and the meeting should proceed as if nothing had been said.

Ms Breytenbach said it is not for Mr Bongo to dictate how the Committee should be run.

The Chairperson said Ms Breytenbach should not address Mr Bongo.

Ms Breytenbach replied that she was not and was expressing her view.

The Chairperson interrupted saying Ms Breytenbach should “just behave”, because he always gave her time to speak. Mr Bongo had correctly said rules are being referred “the numbers of which you don’t know”  and he takes the same view.

Mr Swart aligned himself with Mr Horn and Ms Breytenbach, because the presentation deals with the strategic plan and budget. The Chairperson had asked no other institution to reflect on last year’s report and why is he asking this of the Public Protector. The Office has presented a strategic plan and a budget; this is the purpose of the meeting and he would ask that the Members be allowed to engage. He was concerned with the amount time dedicated to the Public Protector and South African Human Rights Commission.  He reiterated that he fully aligned himself with his colleagues and the Public Protector should be given its due opportunity, because it has due to time constraints not gone through the full presentation.

The Chairperson said he would have agreed with the point, had Mr Swart not aligned himself to people who are out of order. He had said what he said because the presentation boils down to asking for more money and if a bigger budget is to be managed there must be evidence that the institution has the capacity to do so. To prove this capacity the Office should have addressed the issues raised last time. If this is not done how is the Committee to be persuaded that it will be able to spend the money.

Ms C Pilane-Majake (ANC) said there is something foreign about the Committee today and she did not understand why there seemed to be a move to defend the Public Protector. They are here to present and will be able to talk for itself. The Members should be allowed to express their views.

The Chairperson interrupted saying that the meeting should be conducted mindful of self-respect and respect for others. If Mr Horn and Ms Breytenbach wanted to be respected, then they ought to have respect for other Members. He had only recognised Ms Pilane-Majake to speak, not anyone to heckle.

Ms Pilane-Majake continued saying the Chairperson was giving his comments and observations about the report. The Members should have the opportunity to comment on the report, whether we are of the opinion that the comment is wrong or not. This is why she is saying that what is happening is foreign to the Committee and it has never seen Members barging into the comments of the Chairperson to have him stop and claiming he is accusing people. If the Chairperson is out of line, he should be allowed to continue for the sake of having a meeting with order. She asked for the Chairperson to be allowed to continue, whether he is right or wrong, and then other Members would be able voice their opinion.

Mr L Mpumlwana (ANC) said he agreed with Ms Majake and added that Members need to respect themselves, particularly in front of the public. The Chairperson is not only a Chairperson, but is also a Member of the Committee and has the right to express himself.

The Chairperson said Mr Swart had been correct to say the Chairperson had not asked other institutions the same as what had been asked of the Public Protector. The reason is that the Committee had wanted the Public Protector to take effective steps to prevent irregular expenditure, incorrect procurement processes and to take disciplinary action where necessary. Further, to put in place proper information technology processes and address the fact that the Office was technically insolvent when the Committee met with it in October last year. If answers to these concerns are not gotten, how can the Committee agree to support the request for an additional R200 million, before it is persuaded that it will be able to administer it correctly. He therefore suggested giving Adv Madonsela an additional 15 minutes to address matters the Committee had raised in the last meeting.

Mr Swart said when the BRRR was conducted in October, the Department of Justice responded to the issues in January and perhaps institutions ought to be asked to respond earlier. He was not disagreeing with the Chairperson’s suggestions and it should be up to the Office whether it wishes to respond. However, he was concerned about time for this meeting generally. The Committee only meets with these institutions twice a year and yet they all want more engagement.

The Chairperson said a valid point is being made and the difficulty is that a budget proposal is being discussed. There are certain preconditions which would enable the Committee to consider the request and this is why he is giving more time to allow them to speak to the real issues.

Mr Bongo said the Chairperson is correct, because these issues have been raised last time. He was tempted to say the Public Protector should come back next week, having prepared properly.

Mr Swart said what was allowed for all other institutions was that if there was no time for answers or if it was unprepared that it was allowed to answer in writing. He would ask that the same be accorded to the Public Protector.

The Chairperson said this is a different matter, because the report does not address the essential issues to be dealt with in the present meeting. This is why he is tempted to agree with Mr Bongo that the Office be given more time and the Committee can assist in identifying the areas where it needs further explanation. The report defeats the purpose of this meeting.

Ms Breytenbach aligned herself to Mr Swart’s point that every other institution has been allowed to respond in writing and only last week the National Prosecuting Authority (NPA) was sent away despite reams of unanswered questions and time to have them answered. She would prefer that the Members be allowed to put questions to the Public Protector, to determine which questions they are unable to answer before they are sent away.

Mr Bongo said the difference with the NPA is that the NPA was not given a set of targets by the Committee.  The report does not address any of the issues which were previously raised and this is a different matter from all other institutions which have presented to the Committee.

The Chairperson said the report from the Public Protector is substantially deficient of what needs to be addressed and because it is an important institution the Committee wishes to give the Office time to make proper representations. It is not a question of filling the gaps as with other institutions, here the substance of the report does not meet the expectations for the present session. So what is wrong with giving them time to prepare and remedy what is deficient in the report?

Mr Horn said the presentation differs in no substantial manner from presentations the Committee has accepted during the budget cycle. Instead of after the fact carefully crafting points, the ANC must “come clean here and now as to what is deficient”. It is clear that it is unfair to make this a BRRR succession report, because this is not the aim of the present meeting. He had already picked up a number of changes effected in the institution to address what was raised previously. The appointment of a Chief Executive Officer and Chief Financial Officer is already a successful conclusion of some of what was raised. Unless the ANC Members can show presently what is missing, there is no reason to send the Public Protector away “like naughty school children”.

The Chairperson said not as a member of the ANC, but as the Chairperson he had been indicating the shortcomings and he had offered an additional 15 minutes to address these. This was labelled as wrong and now Mr Horn is requesting members of the ANC to do what he had been doing, wasting half of the 15 minutes offered. This is taking the Committee backwards.

Ms Pilane-Majake said the Committee does not operate as the ANC or the DA, but as a Committee of Parliament comprised of all political parties in Parliament. If party lines are to be taken then Members must identify themselves as members of particular parties. When other entities have presented the names of political parties were not mentioned, because they had come to a Portfolio Committee. For whatever reason the Members feel the need to align themselves with their parties, before commenting on the operations of the Public Protector, this baffles her. The Committee must decide what line it is taking on this matter. It is contentious that the Public Protector has not dealt with matters raised previously. She remembers requesting a list of the types and number of cases the Office handles so that she could understand the operations of the Office and how cases are prioritised. Her point is that the Public Protector is here and to move forward it needs to be decided whether the Committee will continue to engage on the present report or is it so deficient that the Committee is not able to engage with it. She noted the aim was to determine whether it will support the budget request or not. It needs to be determined whether the Public Protector has responded to what was queried previously and responses were not provided. They could have been made part of the present report. The Public Protector should be allowed to decide whether it is in a position to respond presently and if not, by when will it be?

The Chairperson said he is not the chairperson of the ANC, he is the Chairperson of the Committee and Ms Pilane-Majake is right that the Members are sitting as Members of the Committee. Everyone is free to express their opinion and these will be dealt with on their merits. It is clear that there is a view that more information is required from the Office to enable the Committee to deal with its request and there is another which would have it treated as other institutions were. He then offered the Public Protector ten minutes. Would it not be a benefit to the Public Protector to have time to look at the concerns raised last year and prepare responses, because these responses will help the Committee to seriously consider the request. There was also a request by Ms Pilane-Majake for a comprehensive report of the types of cases handled. The Office has not complied with these basic requirements, which would help the Committee assist the Office.

Adv Madonsela said on 14 April 2015, shortly after receiving a letter from the Chairperson she replied saying that “in order maximise our engagement and avoid not having ample time to respond to important questions by honourable Members of the Portfolio Committee please could you indicate how much time I will have to present on 29 April 2015 and how much time would be dedicated to the discussion. If there is any specific structure the Committee prefers to the strategic plan, I would appreciate your thoughts before I submit the power point presentation. To ensure there are no discomforting changes on the day of the presentation”. She did this, because three times while in the middle of her presentation there are interruptions and there are preferences aired.

Mr Bongo attempted to call for order.

The Chairperson indicated that Members should be tolerant and perhaps there is more merit in what Adv Madonsela is saying than what the Members have raised.

Adv Madonsela said that she had been Public Protector for six years and appears before Parliament for two events. For five years there have been no issues and these problems have started last year and she was trying to avoid this by writing to find out what preferences the Committee had. Her understanding was that she is here to present a summary of the strategic plan; it is not the Annual Report which would be presented in October. Shortly after her last appearance before the Committee the Office replied to the Committee, answering the October questions, because it was asked against its wishes to submit answers in writing. No response has been received from the Committee stating that the response given were inadequate. All the answers required are contained in the full strategic plan and the Office is prepared to engage on issues of insolvency. Mr Horn had also indicated that the budget has been tweaked to address just this. On whether the Office has addressed the structural deficiencies which lead to procurement irregularities, the answer is yes and most of the answers are in the Strategic Plan. The point of the meeting was to engage with that Strategic Plan in summary form.

The Chairperson said the request to indicate the time that would be allocated to the Public Protector sought to have the Committee treat it differently from other Chapter Nine Institutions and he was not aware that the Constitution places one Chapter Nine Institution above any other. Parliament has time constraints and cannot dedicate the whole day, but he was prepared to say that the following week three hours would be dedicated to the Public Protector. It should prepare well and then present, because the Committee takes the Public Protector very seriously. It is a very important instruction, with wide powers to assist government and therefore decisions should not be taken in a hurry. He asked whether Adv Madonsela accepts the offer of three hours the following week.

Adv Madonsela said she had indicated that she and her team have all the answers if Members have specific questions, but if the Committee wants to grant three hours she would be happy with this. Also, she had not sought to have special treatment, and she had engaged the Committee with a view to assisting. She was not aware of the situation with the other Chapter Nine Institutions and she was being specific to what had occurred previously in her experience.

Ms Pilane-Majake supported the view that the Public Protector should be given more time to respond, but her response was that the responses to questions previously raised were sent to the Committee and this needs to be followed up on. She asked for the document which dealt with these responses. At the same time the Committee would follow up on the “allegation that the responses were sent”.

The Chairperson said he had not seen the responses, but the Committee Secretary should find this correspondence and share it.

Mr Mpumlwana was not sure why Members were attempting to protect the Public Protector. He said when the Committee offers more time, it should simply be taken. There is no need to say this is not important, nor to say it is unnecessary. He felt it would be more respectable to simply accept.

Mr Bongo said he had thought the Chairperson was about to close the meeting and he would caution that the Committee support staff should be able to give their analysis to the Public Protector. To further continue the meeting would allow for “grandstanding and may expose why the DA is protecting the Public Protector so much today”.

The Chairperson said this is helpful and the Committee would furnish the Public Protector with an analysis by the Committee support staff and any other concerns which the Committee feels should be addressed. This is all done to assist the Office, because the success of this office is the success of the Constitution.

Mr Swart said he was totally opposed to this suggestion. Firstly, against the meeting being postponed, there was still an hour and a half available for the meeting. This could allow Members to engage and if there are outstanding issues the Public Protector can respond. Further, the Public Protector has already responded in writing to the issues raised last year and if the Committee has not had sight of this, the fault lies with the Committee. Now the Office is being asked to fly down again, when it is already dealing with budgetary constraints. He would suggest the Members be allowed to engage and if there are outstanding issues the Public Protector respond in writing as was done with other institutions. His concern was that postponing the meeting casts at negative light on the Public Protector.

Ms Breytenbach said she aligns herself completely with Mr Swart's suggestions and opposes any suggestion that the meeting is not to continue as it was supposed to. The Chairperson kept referring to “we”, “we have decided to give you three more hours” and she wanted to know who we is, because the Committee has not been consulted. The Chairperson has clearly seen the correspondence from the Public Protector about a structure for the meeting, because he accuses Adv Madonsela of seeking special treatment. The Committee has not seen it and she would like to know why there has been no consultation towards a position of consensus. The fact that the written responses not having been seen by anyone is a major cause for concern, because these should have been received months ago and the Committee should have discussed them. “To now suggest that this meeting should be postponed she found ludicrous”.

The Chairperson said he had suggested the Public Protector be given 15 more minutes and thereafter Members can engage. Where does the suggestion come that the meeting was to be closed? The DA caucuses while others speak and does not listen, it continues to talk and waste the time of the meeting.

Adv Madonsela asked whether the Committee was proceeding, because as she had indicated the Office had the answers ready. She respectfully disagreed with Mr Mpumlwana’s opinion that the extra time should simply be taken, because as the CEO had indicated the fault lines were identified.

The Chairperson, wanting to conclude the matter, said the Committee holds the Public Protector as a very important institution and it has a duty to support the office. Therefore, where the Committee feels the report is inadequate it should not waste time discussing inadequate reports. Rather, time should be given the following Wednesday to discuss the matters which the Committee would point out to the Office. Adequate time should be given to the Office to allow it to produce a proper report.

Adv Madonsela noted that she would not be available on the following Wednesday, due to another engagement, but the Deputy Public Protector and Chief Executive Officer would be present.

The Chairperson said the work of Parliament should take precedence over the other engagements.

Mr J Selfe (DA) on a point of order asked whether the Chairperson was proposing to adjourn the meeting.

The Chairperson said he was.

Mr Selfe wanted his opposition to this proposal to be noted and he requested a vote. Further, if this is the route taken, he will move that the Committee has no confidence in the Chairperson.

The Chairperson said Mr Selfe may take whatever action he deems necessary. The bottom line is that he proposed giving the Public Protector an additional 15 minutes, the option was not exercised because of the actions of Mr Horn and Ms Breytenbach. He felt what should be done is for the meeting to be adjourned and time given for the Public Protector to prepare itself properly. If Adv Madonsela is not available to motivate, the Committee will make its determination on the basis of the facts before it and if this is not favourable, the Committee should not be blamed.

Mr Swart said in the past other institutions have been allowed to present where the head of the institution has been unavailable. While he opposes the adjournment, he believed there is enough time at present. Further, the Committee still is not in possession of the written responses. He emphasised that it would be unfair to not allow the proposed meeting, merely because the Public Protector has indicated that she has an overseas trip. Especially where there are representatives who could fulfil her duties. He therefore pleaded with the Chairperson to be fair, as there was time to continue.

The Chairperson said he would now give Adv Madonsela the 15 minutes promised.

Supplementary Briefing by the Office of the Public Protector South Africa
Adv Madonsela said as had been indicated the key questions raised by the Chairperson drawn from the previous engagement relate to the irregular expenditure picked up by the Auditor-General (AG) and its remarks that the Office could be technically insolvent. On the irregular expenditure, much of this related to one issue which she addressed the Committee on orally. This was the R4 million for the sourcing of consultants to be temporary investigators. This was a once off event and she had indicated that the AG and Public Protector could not agree whether this was irregular expenditure. The AG had agreed to review this finding. The key to this issue was that the AG had indicated that different quotations should have been sourced. This was not done, because the Public Protector determined the price and it was not market related. There were two other ways of determining the price: first, based on section 217 of the Constitution, read with the preferential procurement policy, the Public Finance Management Act and National Treasury regulations which stipulates that the procurement process must be competitive to ensure the best price available in the market. In this case the Public Protector did not have the money for competitive pricing. The option to take then is to go with the hourly rate stipulated by National Treasury, this again was going to be too expensive. The Public Protector therefore decided to predetermine the price and stipulate that each project would cost a particular amount. This is why the Office was red carded by the AG. This has been corrected and the CEO has indicated that advertising for a panel of legal experts is underway. Despite not agreeing with the AG, that office is the authority on regulatory conduct in state affairs. The Office had previously advertised for the positions, but only appointed as the need arose. Therefore, this irregular expense has been corrected.

On the question of procuring on the basis of duplicate tax certificates, the Public Protector’s policy was silent on this and the government policy is that procurement must be done with original certificates. The CFO will speak further on this and she noted that at present a person has been suspended under this head. The Office had indicated to Parliament that there had been structural deficiencies in the capacities of its finance and procurement unit. The structure was funded on an experimental basis and DPSA has indicated that as the organisation grew, government should have reviewed the funding of the structure. The structure however is not experimental and has been approved by Parliament following quality assurance by the DPSA. The finance and procurement unit is to be better resourced under the structure. During the term of the interim CFO and CEO, things which had not been budgeted for were picked up, for example the gratuity she was to be paid at the end of her term.  Austerity measures were put in place before the new team took office, including the rolling back of the provincial offices with some being closed. Money was reprioritised and put aside, meaning the insolvency was technical rather than actual. At present the Office has roll over funds from 2014/15. This was the contingency money which the AG had urged the Office to put aside and this started during the term of the interim management team. The acting CFO had also identified that there are weaknesses in the financial structures of the Office. The current CFO has picked up further challenges and the Office has put the extra money into beefing up corporate support. The CFO is currently acting in two capacities, the second being Head of Corporate Services. The permanent management team has been in place since March and the Office had pursued this, because it was correctly identified that the Strategic Plan needed to address structural deficiencies in its business processes. The shifting of funding talks to this, with items such as the budget for travel and for provincial offices having seen reductions. The Office was fully aware of what led to the position of the previous year and has addressed it in its strategic plans and this would translate into its operations.

Dr du Toit said she would comment on the specific concerns of the Chairperson. On matters such as irregular expenditure, she was glad to say a close cooperation has been established with the AG and that the Office has implemented the agreed action as reflected in its Annual Report. In 2013/14 the Public Protector had a budget deficit of approximately R26 million. Due to the internal controls and stringent measures regarding budget measures and realignment there is now no budget deficit. Aside from the R300 000 accounting deficit which is necessary due to the leave provisions regulating such an institution. On IT policies, she said it was important to note the IT governance framework and she was in a position to approve those policies in the last month. She was 100% convinced that while the ICT infrastructure is expensive, such as the electronic case management system , at least there was the necessary policy support and procedures to align the Offices structures to the IT governance framework. On disciplinary action, there is a zero-tolerance policy not only for external impropriety, but also regarding unprocedural procurement. This had led to a number of intense interventions by executive management, including close oversight scrutiny.

Discussion
The Chairperson said the Committee is happy, as it had wanted the Public Protector to fill the gaps it identified. There were only two remaining gaps, one being the low staff morale and secondly the comprehensive report on the nature and number of cases. His last point was that South Africans and Parliament respects the judiciary and all judges. He was taken aback to hear Adv Madonsela addressing a public meeting, saying that the judgement of Judge Scheepers was a 'cut and paste' judgement. The effect of this is to say that South Africa has judges which are not competent to carry out their duties. Why in addition to noting an appeal did Adv Madonsela go on to say that the judgement was merely a 'cut and paste', because this may lead to the public rejecting future judgements saying they are cut and paste. Is this not eroding the integrity of the judiciary? Adv Madonsela signed an affidavit, but later reneged saying that what had been signed had been an oversight done in a hurry, leading to two contradictory affidavits being submitted before the court.  As the Office was respected, its representatives should respect the judiciary. If a judge makes a mistake we are all free to appeal, but this should not entail going to campaig before the public.

Adv Madonsela responded that she thought Judge Scheepers would really appreciate that a Member of Parliament is prepared to bring this issue into focus, even at a meeting such as the present. This means the independence of the judiciary is really respected and protected, even if it is not the occasion to do so. She wished she had the same protection when a Member of Parliament’s staff writes an article calling her “St Thuli Madonsela” and accusing her of all manner of things. In the same speech she had specifically indicated that she respects Judge Scheepers and five days ago another judgement was issued which she did not agree with, but went in public to sincerely congratulate him on an excellent judgement. On cutting and pasting, there was a context to that and if it offended Judge Scheepers or people who felt offence on behalf of Judge Scheepers, she apologised.

Ms Pilane-Majake asked whether the Committee is satisfied with the answers and information given, to a point where it is able to engage with whether it supports the budget or not.

The Chairperson said there is a saying that one can take a horse to the water, but one cannot make it drink. The Public Protector has been given an opportunity and has indicated that what has been presented is enough. It is for the Committee to make its own determination, which will influence the stance it takes. Personally he felt she still needed to provide information on the low morale of the staff and a comprehensive breakdown of the cases. This response can be sent in writing and for the present purposes the Office has given everything it wants to provide.

Mr Swart said he felt reason has prevailed and further written submissions will be able to satisfy and supplement the information requested by Ms Pilane-Majake. It should also be investigated what had occurred with the October response, which will avoid next week’s meeting. At that point he felt the Committee would have enough information.

Mr Bongo said Parliament had acceded to the call raised by the Public Protector around budgetary constraints, given that an increase is seen. The increase has been granted, but it has not been indicated how the money is being used and instead the Public Protector wants more money. It is important that the increase is used in a manner which would avoid this. On the legal costs, the Public Protector seems to be doing a lot of litigation and using senior counsel, which is costly and which of itself could help reduce spending. The report presented did not show the Committee its steps on how it is dealing with irregular expenditure or the improper procurement procedure picked up by the AG. It is unthinkable that a body concerned with high standards of morality is the one with irregular expenditure and following improper procurement patters, yet it is investigating these same things in other institutions. How is the Public Protector dealing with this, because it casts doubts on the activities of the Office. What the CFO has said about zero-tolerance will be monitored very closely by the Committee. The Office has identified performance management as a risk and yet it does not provide the Committee with a turnaround strategy. A critical matter, at the core of their operations, is something which the Office is not telling the Committee about, namely the case load and management thereof. This has been requested to see how far the backlog goes and how it is being dealt with. All that has been seen so far is posturing about certain cases. The report indicates a total number of cases handled, but gives no indication of how they were resolved. Another issue sharply raised by the Committee is the overlap with other institutions. In the affidavit spoken about, the Public Protector indicated that it has the authority to run a case in concurrence with any other state institution. Despite the spirit of the Committee being that the state needs to provide a unified front. The Public Protector should not litigate to assert its jurisdiction over certain cases and then complain that it does not have the funds to carry out its mandate. This is a matter of overlap and the Office would do better to see how it could provide other support, rather than litigating the point. There must be a turnaround with these issues, including the funding of the structure. These things have not been taken care of, yet it is business as usual in the Public Protector and practical solutions need to be presented. Seven minutes had been spent speaking about "a child in a university", which is not strictly relevant and what the Committee wants to deal with is constraints in the budget and how its work can be made more efficient.  

The Chairperson interrupted saying that Mr Bongo was addressing Adv Madonsela and yet she was speaking to her Deputy. This could lead to the same issues being canvassed in future and he asked for her to listen.

Mr Bongo said Adv Madonsela was behaving like the Democratic Alliance and how are answers to be given.

Mr F Shivambu (EFF) raised a point of order, saying he did not know how this Committee ran but it could not be right to have Members say the Public Protector was acting like the DA.

The Chairperson said had Mr Shivambu raised his hand timeously he would have called Mr Bongo to order and asked Mr Bongo to proceed.

Mr Bongo said another matter of public interest was the nature of the Public Protector’s remedial powers. To what extent has this affected the finalisation of cases, what are the turnaround times. This matter has also caused a lot of litigation, with the Public Protector litigating rather than focusing on its core business. He would like to know what the consultants are doing in the Public Protector. He wanted to know what levels the cases are at and what their status is. He doubted whether the Committee was wrong to request such information and for the Public Protector to say all the information has been given, this needs to be dealt with perhaps at another level. As the Committee’s role is to do oversight, therefore proper information should be given.

Adv Madonsela said the case of the student was supposed to demonstrate that not only the individual case was dealt with, but it also dealt with the systemic concerns as an example of how the Public Protector operates.  On irregular expenditure, she did not feel more of the same was being presented. The written Strategic Plan and extra oral submission were not more of the same. She had indicated the steps taken to address the irregularity and the CEO had augmented this. It was even said disciplinary processes have been instituted against the senior manager responsible for facilities management. The provincial offices have been rolled back, which was a footprint approved of by Parliament. It is therefore difficult to appreciate how one can say this is more of the same. On what is being done with the additional allocation, she said this had been stated in the present meeting. The baseline was expanded by R15 million and this was ring-fenced with R7 million for litigation and R8 million for trainees. There was no option and this was done.

Ms S Shope-Sithole (ANC) said the country is in bad economic times and more needs to be done with less. When the Committee asks for more information this for them to be able to support what is being requested. Otherwise it will be difficult for the Committee to motivate to the Standing Committee on Appropriations that a certain amount of money is required for the Public Protector. Where a functionary makes a statement, it does not have the same status as when the Public Protector of South Africa makes a statement. The Public Protector’s status demands that whatever they utter be responsible at all times, because the people take what is said seriously. It is not enough for the Public Protector to one day say a judge is cutting and pasting, only to later praise a later judgement. She therefore asked for Adv Madonsela to refrain from making certain statements, because talking was the domain of politicians.

Adv Madonsela said the Public Protector is trying to do more with less and the whole Strategic Plan speaks to this. She would ask that instead of accusing Members the Office they should read the Strategic Plan. This was alluded to in the strategic overview of the presentation and it is appreciated that this is bad economic time.

Mr Mpumlwana said he had been partially covered by Ms Shope-Sithole and would further suggest that she publically apologise, because as an advocate Acv Madonsela should understand that “nothing bad can ever be said about judges”. He would also suggest that instead of saying that she will not be available a different date should be suggested. This would help the Committee support her, because to simply say she has a prior engagement could give a negative impression which may not be in the interest of the Office of the Public Protector.   

Ms Breytenbach said she was a little taken aback by the personal attack being made on Adv Madonsela and she assumed it was made in a personal capacity rather than on behalf of the Committee. She requested the written response which was sent by the Public Protector and for some indication of what went wrong with the process leading to Members not receiving this. She was surprised that information had been requested about the nature and extent cases, as when similar information was requested from the Special Investigating Unit this was ruled out of order. Why is the Public Protector’s information treated differently, she could not imagine. Concern was raised about donor funding at the previous meeting and she would like more information. On litigation, it had been mentioned that R10 million was required for legal costs. While clearly there were matters it was in the public interest to litigate, and a head of legal services was required, but she asked for elaboration.

The Chairperson said the Special Investigating Unit situation is not comparable with the present situation.

Adv Madonsela said the litigation budget is a fair concern, but the Office does not seek to litigate.          It was then decided that legal services should be appointed, to have a person within the Public Protector doing the work.

Ms Pilane-Majake said she was baffled about statement made by Ms Breytenbach, because she was not aware of the Committee attacking the Public Protector. Perhaps Ms Breytenbach is trying to gain the favour of the Public Protector. Where favours are solicited this leads to corruption and she asked for Members to engage the institution as Members of the Committee and not to grandstand. Members had raised issues about statements made by Adv Madonsela - this was raised because of the importance of the office she holds. She did not understand why a political party would want to play the role of her defender and what was sought by this approach. She encouraged Members to engage with the report and the Office, because the responsibility of the Committee is to deal with what it requests to be funded in the coming financial year.

She said her concern would be the outstanding responses and if the report has been submitted, Members should receive it. So that these matters can be resolved, because when the Office presented last October this was subsequent to information having been requested in the Fourth Parliament. It is also unfair to say the past two sittings have been the first where the Public Protector has had problems, because in the Fourth Parliament a robust debate was had around the Office’s accountability to Parliament and its ability to review the decisions of the Public Protector. Eventually, the Public Protector was shown that the Public Protector Act clearly states that the Office is accountable to Parliament. More money is being requested and reference is made to a report adopted by the previous Committee, she requested that this report be attached. As  the report implicates the Committee in approval of a certain staff establishment and the Committee must understand where the previous Committee was coming from. From what she knew, approvals by National Treasury have to be motivated for through the MTEF and there is nothing which can be approved for the future, because this is dependent on the fiscus. Ms Shope-Sithole had indicated that the request will still have to go to the Standing Committee on Appropriations and the requests are supposed to be in line with the resources the country has. Presently the situation is difficult and austerity measures are being applied. Where a budget projects increasing Estimates of National Expenditure, there is concern that institutions do not understand the country’s financial situation. Together state institutions run the country and a common understanding of what the country can and cannot afford is needed.

Mr Horn said he did not think it would get the Committee anywhere by accusing fellow Members of wanting favour with the Public Protector and he wanted to put on record that what the opposition had fought for was a fair process.

The Chairperson interrupted asking whether Mr Horn wanted to go on record that people were making accusations or observations.

Mr Horn continued saying that Ms Pilane-Majake had certainly made the accusation that opposition Members wanted favour with the Public Protector and it needs to be made clear that what was sought was a fair process. The fact that only now the Committee is getting to engage on the presentation is a clear indication that this is what the opposition’s fight was about. He had three questions for the Public Protector. Firstly, the presentation indicates that it planned to roll out 43 mobile units, however the budget for travel and subsistence has been decreased substantially from R9.4 million to R2.1 million and he would like an indication of how this is going to be done with the reduced allocation. Secondly, there is the issue of 70 trainee investigators, yet there is also a decrease in the training budget from R2.1 to R550 000. Practically, this did not make sense to him. Lastly, he wanted to note that while the Committee has been critical of the Public Protector today, it is important to note that there have been 21 000 matters finalised and only 15 000 new matters. This means the carryover has been reduced from around 9500 to 6000. This clearly indicates effectiveness in finalising matters. However, the question is what was the result of the customer service surveys which were previously planned by the Public Protector. There has been no feedback to the Committee and there is also nothing in the presentation, so perhaps the Committee requires more information.

The Chairperson said he was happy that Mr Horn agrees that additional information is required.

Adv Madonsela said the effectiveness of the Office has been affected, for the first time since the SABC judgement there has been an organ of state which has not bothered to submit an implementation plan within 30 days. This methodology was not invented by the Office and was taken from other ombudsman institutions. Despite what may be said the Supreme Court of Appeal has made a decision that the Public Protector is more than an ombudsman institution and this was the correct decision to make. The Public Protector Act, which is similar to ombudsman legislation, gives more responsibility than an ombudsman. For example no ombudsman institutions deal with conduct failure.

Mr Swart said he was grateful for the opportunity to engage and to the Chairperson for allowing the meeting to proceed. He wanted to know what its relationship was like with Office of Institutions Supporting Democracy (OISD) located in the Speaker’s Office and Parliament could clearly improve its relations with Chapter Nine Institutions. In his time at Parliament there had been continual complaints about the lack of regularity of meetings between Chapter Nine Institutions and Parliament and the OSID could assist. He wanted to know what the impact of the surrounding litigation has been on the powers and functions of the Public Protector. Specifically, whether the present interpretation of its powers has impeded its work and if there has been an impact on turnaround times. He wanted to know about the cooperation with the executive, because there have been complaints form Chapter Nine Institutions in the past about state institutions not responding or implementing remedial action promptly, and whether the Committee could be of assistance.

Mr Shivambu said he had to come to this Committee, because the EFF Member who had sat in the Committee is no longer a Member of Parliament. As the Chief Whip of the EFF, he had the responsibility to ensure that the views of the EFF are expressed on all platforms. He agreed with the statement on the last page of the presentation which read: “Let it never be said that indifference, self-interest and expedience prevented us from building a formidable partnership against maladministration, in all its forms from indifference to corruption. The pursuit of the constitutional promise of an improved quality of life for all demands that we work as partners in ending maladministration, by helping the people exact accountability in the exercise of state power and control over public resources.” He felt this was an important principle which should guide all political parties, but he did not get this from the ruling party. He felt the ruling party was ganging up on the Public Protector in an unsophisticated way. Even to the extent that there is petty oversensitivity to the delegation conferring. This happens daily in Parliament and what is wrong with the Public Protector conferring with her Deputy on an issue which is being raised, causing the Chairperson to reprimand her. Further, it should not be in the name of the Committee that the Public Protector is intimidated from making her observations on judgments which have already been passed. The law protects this and the principle is when there is an ongoing case Members of Parliament and state functionaries are prevented from commenting because the matter is sub judice and the comments may influence the decision. Once a judgment has been passed, people are free to say they do not feel it is correct as there may be several interpretations of the same judgement. To say the Public Protector cannot say certain things, this means that people should be restricted from questioning the judiciary. President Jacob Zuma criticises the judiciary on judgements he does not agree with and he signs off on the appointment of those judges, which the Public Protector does not do. There nothing wrong with the Public Protector making her observations and saying in her opinion the judgement was cut and paste or not properly processed. Therefore, the apology cannot be accepted, because there is nothing to apologise for and no rule or constitutional obligation has been violated. To come back to his original point, the Committee needs to leave behind the childish and unsophisticated ways of attacking the Public Protector and entertain the deeper detail of what is presented. What is happening is simply a ganging up and where has this happened before. The Committee needs unashamedly to protect the Public Protector, because it manifests the hopes of the people of South Africa and the Office has been very courageous in tackling the instances of corruption, even those involving the President of the Republic. This is why the ruling party is harping on everything and trying to “rubbish an institution we all have a duty to protect”.

The Chairperson said it is a good thing Members of Parliament are entitled to their opinions and should continue to express themselves freely. He said Mr Bongo had made an observation about the escalating legal costs which results from the disputes about the powers of the Public Protector and he felt the unfortunate statements made about Judge Scheepers flow from this. The law states that the Public Protector should exercise its powers without fear or favour. When a court hands down a judgement which in the view of the Public Protector is incorrect, unless there is a personal interest, the matter is functus officio and it should be let lie. Those with a personal interest should then take the matter on appeal and why should it be the Public Protector with its limited resources to challenge the decisions of courts. He asked for the Public Protector’s view on what is functus officio. Another matter which is before the court, but is in the public domain, is the Home Affairs matter which shows that there are serious overlaps between the Public Protector and the Public Service Commission. Therefore, the overlaps which were a concern last year have not been remedied and there does not seem to be any attempt to address them. It is disturbing to know that the Chapter Nine Institutions have an office located with the Speaker and the Committee had suggested they meet quarterly to address the overlaps and this having not been done, brings about the current situation. He hoped the Home Affairs case would settle the matter of the powers of the Public Protector and remedy the overlaps. There is also an issue with the courts having the powers to review its decision, with the argument being made that only Parliament can review the Public Protector’s decisions, but aside from the Nkandla Report, he had seen no other reports. Therefore, he requested that in future the Committee could be favoured with copies of the Public Protector’s reports. The Public Protector has the power to conduct mediation and better use of this power would assist in not having the large amount of litigation, because this would avoid legal costs and the time of government officials being spent in court. A good suggestion  was made that government departments should have dispute resolution mechanisms and perhaps the Office should have the same, to avoid litigation.

Adv Madonsela said she was grateful that the spirit of the quote read by Mr Shivambu has been accepted and a common ground has been found in the Constitution, the understanding that it would not be persuaded by common interest or friendship and that the Office’s duties would be discharged without fear or favour. She noted that the Public Protector does not litigate and all it does is respond where it has been sued. To suggest that the Office should use alternative dispute resolution, rather than litigation is inappropriate. The Office would never be able to resolve 21 000 cases if it litigated. The key focus is early resolution and ultimately leading up to reporting. She apologised to Mr Bongo for wasting his seven minutes, but she had related the story because she felt this was not a trivial matter. The story shows the common ground around the vision of Office and strategy which informs its work. The reason the Public Protector was established was to have an informal mechanism for the people of South Africa to hold government accountable where they felt wronged, without litigation or ultimately civil unrest. The Office has never taken anyone to court, even where government has rejected the Office’s findings. The Public Protector will wait for another party to sue government and enters the fray only where it has been cited as a respondent and she welcomed the Committee to check the court records to verify this.

On the case which Judge Scheepers decided, initially it was decided that the Public Protector would not become involved and only half way through did the Public Protector become involved where the nature of its powers were raised. Unlike the Chairperson, Judge Scheepers felt the nature of the powers of the Public Protector should be resolved as stated in a recent judgment. He stated the Supreme Court of Appeal should resolve the issue, because people cannot be sure whether the Public Protector is in a position to resolve their issues. She agreed that litigation will not be entered into lightly and will only be done so when necessary. She emphasised that the litigation to clarify the powers of the Public Protector is not a personal matter, as she would only be in office until October 2016. Rather it is about clarifying the powers and role of this Office which will guide her successors. The three mandates: investigating, reporting and taking appropriate remedial action is all contained in the Constitution. Incidentally, Judge Scheepers noted her disagreement with his contention that the Bradley case defines the Public Protector’s powers. Again she apologised unreservedly to Judge Scheepers and if this apology should be made public she was more than happy to do so, because she respected the judiciary. She however agreed with Mr Shivambu that she had not only had a right, but a duty to disagree.  The contradictory affidavit which was filed was admitted to, but the matter of defining the powers of the Public Protector is a matter of law and the law will ultimately decide their nature. She was not the Office, she was merely the incumbent and it would pain her that Members would consider not supporting the budget because of her absence. She said while it is a Member’s democratic right to dislike her, the Members were here in a position of trust and the decisions they make must be made in good faith. Further, she was not the accounting officer for the Office, which the Public Finance Management Act stipulates is the CFO. She would be leaving office the following year and whatever the Members personal issues with her they should treat the Office as a constitutional body. She was disappointed that the Chairperson had accused the Office of still dealing with Public Service Commission matters simply because of the Home Affairs case. She would rather he had inquired, rather than presumed. As the team works hard and it should be remembered that when she is attacked, triaging officers in 20 offices are being attacked. These triaging officers look at cases to determine whether the case is within the Public Protector mandate and if it does, is it the most suitable office. The triaging list was sent during the Fourth Parliament. This list is not a secret, it is prepared by assessment committees and is sent every Friday to the her for comment. The Home Affairs case is an old matter, which is being litigated at the bequest of the Department of Home Affairs. She noted that there was a case of a whistle blower, which was sent to the Public Service Commission which decided it did not have jurisdiction. This case has come back to the Public Protector two years down the line; this will again go to the triaging committee to determine where the case should be dealt with. She clarified that the Public Protector is not setting up alternative dispute resolution mechanisms, rather it had written to Cabinet requesting that an ombudsman like institution be set up in various government departments.  She thanked the Members for the opportunity and noted the Office had never disputed its accountability to Parliament as this is contained in the Constitution. This does not mean that Parliament may review its decisions, because it is subject only to the Constitution and the law.

The Chairperson agreed with Mr Shivambu that no one should seek to intimidate the Public Protector, similarly he asked for the Public Protector not to regard Members comments as attacks on the Adv Madonsela. As this sends an unfounded message to the public that Members of Parliament invite state organs to attack them and this is not correct. He appreciated her answering the questions openly and honestly, quelling the unrest which had seized Members before. 

Adv Kevin Malunga, Deputy Public Protector, said the question of the interface between the Speaker’s Office and the Chapter Nine Institutions has not been answered. He had sent the Chairperson the minutes of the meeting between the heads of the Institutions Supporting Democracy (ISDs) held on 27 February, where the burning issues common to all Chapter Nines were discussed. A number of things were discussed there, including the relationship with the Speaker. The Office was slightly different, because people will generally eventually complain either to the Speaker or the Committee. There was also a strong unanimity that the ISDs should be isolated from the executive, for example the Office of the Public Protector's budget is linked to that of the Department of Justice and Constitutional Development. There was also a complaint about the Bill on the Remuneration of Office Bearers not moving as fast as was optimal. Another burning issue was the implementation of Chapter 9 institutional reports generally.

The Chairperson said the overemphasis of independence should not be taken too far and perhaps the nature of independence should be discussed in future, because if single mothers and orphans were prejudiced because of independence this could not be correct.

Mr Shivambu said he hoped these things were being said on behalf of the Chairperson or the ANC and the Committee should not be brought into that.

The Chairperson said he had said that in this meeting all opinions were to be respected.

Mr Shivambu said as long as it was not recorded in the minutes as being said on behalf of the Committee.

Ms Pilane-Majake said clearly Mr Shivambu has an opinion on independence and it should be expressed at another forum and his comments would be debated in the context of the Constitution of South Africa.

The Chairperson declared the meeting adjourned.