Public Protector of South Africa on its 2016 Annual Performance Plan

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Justice and Correctional Services

07 April 2016
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

Public Protector South Africa Strategic Plan contains 17 strategic objectives and the budget for 2016/17 is R263.3 million. Its key challenges are poor funding and inadequate human resources, which manifest in a backlog of cases. The emerging risks it faces are operational sustainability through financial constraints, reputational risk through poor systems and processes, reputational damage through inability to finalise investigations timeously, distractive litigation against the Public Protector, and the limited access to the Office of the Public Protector.

Committee members welcomed the presentation. However, some of them sought clarity on the PPSA’s plans for mobile clinics, the Public Protector’s Trust, its relationship with other Chapter 9 institutions supporting democracy, differences between regional and provincial offices, the feasibility of a clean audit, and exemplary leadership, ‘other income’ earned by the PPSA last year, and high allocations for staff development training.

Several Committee members expressed concern over the PPSA funding model, cost effectiveness of hiring consultants, disproportionate budgets for provinces, the ambit and propriety of donations to the PP Trust, duplication of functions by Chapter 9 institutions, the financial feasibility of mobile clinics, criteria for choosing cases in the light of case backlogs, and the large number of acting personnel in critical positions.

Members engaged in several sharp exchanges arising over the impeachment debate of the President that week and about the Nkandla judgement given by the Constitutional Court.

Responding, the Public Protector explained the PPSA organogram. The decision to start the Public Protector Trust arose from public suggestions. She expressed awareness of the risks of crowd-funding and willingness to receive ideas on how this can be done with integrity. She explained that the proposal for consultants is for 2017, promised to use consultants cautiously, and expressed willingness to discuss modalities for using consultants.

Meeting report

The Public Protector, Adv Thulisile Madonsela, introduced her team as the Deputy Public Protector, Advocate Kevin Malunga, Acting Chief Executive Officer, Mr Lufuno Reginald Ndou, Acting Strategy Support Senior Manager, Ms M Mothiba, Parliamentary Liaison Manager, Ms Benita Young, Chief Financial Officer, Mr Kennedy Kaposa, the Public Protector’s Representative for the Western Cape, Ms Sune Griessel, Spokesperson and Acting Chief of Staff, Ms Kgalalelo Masibi, and her secretary, Ms Sibongile Phoswa.

Mr W Horn (DA) raised the scalding comments on the failures of Parliament made by the Constitutional Court in the Nkandla judgement. He called on the Committee to apologise to the Office of the Public Protector for its unbecoming attitude over its perceptions of the status of the Office of the Public Protector’s remedial actions. An apology would help to normalise relations with the Office of the Public Protector.

The Chairperson pointed out that the President and Parliament appeared before the Constitutional Court, not this Committee. Also, the judgement never mentioned the Committee. Therefore, this forum is inappropriate for an apology to the Public Protector. Other forums such as the Chief Whip’s Forum or Parliament should engage this matter so the Committee can proceed with its business.

Mr S Swart (ACDP) insisted that the Committee owes the Public Protector an apology over the manner in which it treated her. The National Assembly Speaker has regretted the hostile manner in which the Committee treated the Public Protector. The need for an apology is evident in the Chairperson’s statement in Parliament that the Public Protector’s Report had misled the nation.

Mr M Maila (ANC) stated that it is improper to deviate from the matter before the Committee today.

Ms C Pilane-Majake (ANC) stated that there is no need for an apology because the Committee has more pressing issues to handle.

Mr Swart clarified that the Speaker merely ‘regretted’ Parliament’s attitude, not apologised.

The Chairperson stated that the Committee must face only the issues before it. He called on the Public Protector and her team to make their presentation.

Public Protector’s briefing on the 2016-2021 Strategic Plan and 2016/2017 Budget
The Public Protector, Adv Thulisile Madonsela, stated that the budget for the Office of the Protector (PPSA) is R263.3 million for 2016/17. She sought approval for this budget, as well as the organisational plan of the PPSA. She restated the mandate and vision of the PPSA, which is to protect the people from improper conduct and promote good governance. The programme and budget to be submitted today has five key goals: prompt service, access, efficiency, impact, and influence. The proposed budget will pay for the following flagship activities: investigation and alternative dispute resolution (ADR) services provided in 20 service centres by 369 permanent staff including 39 Assistant Investigators and mobile clinics, implementation of an Electronic Case and Customer Relations Management System to assist with management and monitoring of complaints, and efficiencies (estimated cost R50m), dealing with the case backlog to allow for prompt justice, focus on promotion of ethical conduct in State affairs (has implications for responsive action by leaders when problems are brought to their attention in line with the NDP and reduction in costly and unnecessary reviews, expansion of constitutional injunction to be accessible to all persons and communities beyond physical accessibility to include access to substantive justice through timely investigations and remedies, and strengthening synergies with ombudsman institutions.

The Public Protector called on the Acting Chief Executive Office, Mr Lufuno Reginald Ndou, to present the PPSA’s 17 strategic objectives.

Mr Ndou explained the Office of the Protector’s 17 objectives as:
•  Adherence to turnaround time in investigations
•  Implementation of remedial actions following investigations
•  Speedy resolution of cases through stakeholder management
•  Ease of access
•  Awareness of the PPSA programmes
•  Operational efficiency
•  Transformation of human resources for internal competencies
•  Transformation of the ICT to support needs
•  Financial stability
•  Strategic restricting
•  Clean audit
•  Promotion of good governance
•  Exemplary conduct to obtain clean audit
•  Capacity building of HR
•  Development of the Ombudsman functions in South Africa and beyond
•  Ethical leadership
•  Influencing government and legislation.
The bulk of the 2016/2017 budget goes towards funding the following:
Investigations – R183.4 million (approximately 61% of budget)
Funding of service points (1 Head Office, 9 Provincial Offices, and 10 Regional Offices) – R14.5 m
Funding of stakeholder engagement programmes.

The realistic budget excludes the following which can increase the deficit:

- Funding of additional regional offices (approximately R20 million)

- Case management system and security (approximately R54 million)

- Increased capacity especially interns (50) and trainee investigators (100) (approximately R11 million).

The Deputy Public Protector presented the Office of the Protector’s key challenges as:
• Human resources: only 59% of the approved structure is funded.
• Of the 556 approved posts, only 329 are funded.
• Trainee investigator programme cannot proceed as originally conceived (39 Assistant Investigators are paid with no budget allocated to them)
• Electronic Case Management System requires about R50 million (Public Protector Trust to be explored)
• Increase in the number of reviews without consultation (18) since the Supreme Court of Appeal clarified the powers of the Public Protector, which is likely to increase.
• Case backlog of critical complex cases and struggle to balance rigour and promptitude
• Organisational foPPSArint is currently on hold.

The emerging risks faced by the Office of the Protector are:
• Operational sustainability – through financial constraints
• Reputational risk – through poor systems and processes
• Reputational damage – through inability to finalise investigations timeously
• Litigation – through state organs taking the Public Protector to court
• Limited access to the PPSA, especially by rural communities

The Deputy Public Protector called for Parliament’s support in approving the proposed budget, urging Treasury to provide requested additional funding, supporting the Public Protector Trust initiative, and collaborating in ensuring remedial action as envisaged under Section 182(1) of the Constitution is implemented without undue delay.

The Public Protector clarified that the Office of the Protector has cleared its budget deficit.

The Chairperson welcomed the presentation. He asked the Public Protector to shed light on the content of its 648 mobile clinics, the Public Protector’s Trust modelled on the Constitutional Court Fund, progress made in the Forum of Institutions Supporting Democracy, which are supposed to deal with the duplication of mandates, and how the PPSA manages differences between provincial and regional offices.

The Public Protector responded that the 648 clinics aim to bring justice and awareness closer to rural people.
The Public Protector Trust is the PPSA’s solution for mobilising direct funding from the public. It emerged from suggestions made during public consultations on crowd-funding, and is similar to the funding model of the Constitutional Court Trust. The PPSA has written to the Minister of Finance asking him to note the decision to set up the Trust, requesting him to set up a separate account for the Trust, and requesting him to advise on the ethics of getting funds from the public. The Trust will only fund infrastructure and training programmes, not investigations. The PPSA’s training programme was commended by the Minster of Education. If the Trust takes off successfully, the PPSA will be able to have 100 trainee investigators, rather than the 36 who are covered by funds.

The Deputy Public Protector stated that the difference between regional and provincial offices is a question of access to marginalised communities. The PPSA participates actively in the Forum for State Institutions Supporting Democracy and has a healthy relationship with the Office of the Speaker.

The Public Protector clarified that the PPSA runs on a three-tier structure. Other than the national office, there are nine provincial offices, with regional offices in each province. Were it not for funding, there should be a regional office in every district. Some regional offices have been closed due to funding constraints.

The Chairperson called on Committee members to respond.

Mr F Shivambu (EFF) congratulated the Public Protector for the Nkandla judgement given by the Constitutional Court. The Public Protector had taken a principled and consistent approach despite criticisms and insults. The judgment set a valuable precedent on sound constitutional principles for future South Africans. Some issues arose in the debate over the impeachment of the President of the Republic....

Mr L Mpumlwana (ANC) interjected and raised a point of order on deviation from the matter before the Committee into political questions.

The Chairperson noted the limitation of time for the presentation and advised Members to stick to the matter before the Committee so that all Members can make an input.

Mr Shivambu asserted that political questions are often involved in presentations by the PPSA. He sought clarity from the Public Protector on the sentiments expressed by the Deputy Minister of Justice during the impeachment debate where the ruling party seems to be under an impression that the Public Protector was confused about her powers, and that is part of the justification as to why the President violated the Constitution. Secondly, when a person fails to uphold the Constitution, does that amount to a violation of the Constitution?

Mr Maila raised a point of order on Mr Shivambu’s request for the Public Protector to comment on matters outside her knowledge, as this could spark a debate that will make the Committee deviate from the matter before it. He stated that Mr Shivambu’s request is not relevant.

The Chairperson stated that no single political party is challenging the judgement and the ruling party has agreed to implement the judgement. So, there is no need for the Public Protector to comment on it, nor is this the forum for such comments. The Committee needs sufficient time to address the Public Protector’s presentation.

Mr Shivambu insisted that the Public Protector should comment on the judgement. He asserted that the Chairperson cannot restrict his freedom to speak. The Public Protector is free to answer the question or decline.

The Chairperson called on Mr Shivambu to play by the rules of the Committee. He reiterated that no political party has opposed the Constitutional Court judgement, and that it is inappropriate for this forum to be used to discuss the judgement.

Mr Shivambu rejected the Chairperson’s assertion that no party opposed the judgement. He stated that part of the misinterpretations that had been happening in Parliament specifically arose from what the Public Protector said about her functions. This is on record, and the Public Protector needs to clarify it so as not to cause confusion. The Chairperson should not defend wrong things.

Ms Pilane-Majake raised a point of order on mutual respect by members. She advised Mr Shivambu to address the Chairperson – and everyone present – with respect. The Chairperson deserves protection (from attack) in the same way he protects members.

The Chairperson called for members to stick to important issues raised in the presentation by the PPSA. The other issues are important but should be left for another forum to handle.

Mr Shivambu called on the Committee to deal with the funding model of the PPSA in a substantial way to enable it discharge its functions effectively in every district in the country. He sought clarity on whether the PPSA has received complaints and is investigating the corrupt Gupta family, which has captured the (ruling) political party and run it like a private shop.

Mr Swart thanked the Public Protector for her good works in light of the termination of her tenure this year. He urged the Committee to request additional funding for the PPSA from the Finance and Appropriation Committees, especially following the Constitutional Court judgement, which stated that the Public Protector requires funds to effectively execute her constitutional mandate and breathe life into her remedial powers. Given that 18 cases are pending for review from departments of state, which are funded by taxpayers, there is an important need for taxpayers’ monies to fund the PPSA. He sought information on anticipated legal costs for the 18 pending review applications. He queried why the Public Protector cannot have a funding model that allows departments to co-fund reviews. He sought to know to what degree the Forum of Institutions Supporting Democracy are assisting the Office of the Public Protector in meeting remedial actions.

Mr Horn asked if there is now a normalisation of relations between those in the Forum of Institutions Supporting Democracy and assistance to the remedial actions of the Public Protector. He sought clarity on the legal experts’ panel, feasibility of a clean audit, cost effectiveness of hiring consultants, disproportionate budgets on provinces, and the Public Protector’s lessons from abroad on the Gupta scandal.

Mr Bongo congratulated the delegation for its presentation. He queried the proliferation of acting executives in the PPSA, and the listing of Ubuntu as one of the PPSA’s values, rather than the cornerstone of values. He sought clarity on case backlog because it is related to funding and an overlap in investigation of cases. He noted that funding has been incrementally increasing for the PPSA, and wondered whether it is not appropriate to wait for the incoming Public Protector to implement new funding requests, given that he/she may have a different vision from the Public Protector. He requested the view of Treasury on the Public Protector’s Trust.

Mr Maila welcomed the outcome of the Constitutional Court judgement for bringing closure to many uncertainties. He wondered why there is an increase in the number of consultants engaged by the PPSA in the face of budget constraints. He requested clarity on the interface between ombudsman institutions and the private sector. He sought to know if the PPSA is better placed to investigate a National Assembly member who propagates illegal occupation of land simply because he is unhappy with section 25 of the Constitution.

Ms M Mothapo (ANC) thanked the Public Protector and her team for the presentation. She expressed satisfaction at the clearance of the budget deficit and asked about the PPSA’s plans to achieve clean audit and exemplary leadership. She expressed concern on the financial feasibility of two mobile clinics per province, the software tools bought by the ICT Unit, and the high number of acting personnel in critical positions. She asked the criteria for choosing cases in the light of the high number of backlog cases, and the organisational structure of the PPSA with respect to investigations.

Mr Mpumlwana thanked the Office of the Public Protector for its good work. He sought an explanation for ‘other income’ earned by the PPSA last year, the ambit and propriety of donations to the Public Protector Trust, which could hamper the Public Protector’s independence, and the duplication of functions by Chapter Nine institutions. He praised the clarification on ‘remedial action’ by the Constitutional Court and the Court’s clarification of several grey areas that had escaped the courts, the Public Protector and others.

Mr Shivambu called for a point of order, calling Mr Mpumlwana’s speech as un-coordinated, confused and casting aspersions. Ignoring calls for ‘point of order,’ he queried why Mr Mpumlwana should be allowed to continue his mediocre speech.

The Chairperson asserted that he has the right to allow members to express themselves, and members must respect the different manner of this expression.

Mr Bongo raised a counter-point of order on the ground that Mr Shivambu has no grounds to raise a point of order, because he is not used to attending Committee meetings.

The Chairperson called for an end to political squabbling and requested Mr Mpumlwana continue. He warned that it is dishonourable for Members of Parliament to threaten each other with violence in a parliamentary meeting.

Mr Mpumlwana requested clarity on the R2 000 000 allocation for staff development training, and queried the cost of hiring consultants to give advice to lawyers.

Ms Pilane-Majake welcomed the presentation of the PPSA. She advised the Public Protector to resist temptation to wade into inappropriate debates. She welcomed the Constitutional Court judgement as a celebration of constitutional democracy. She stated that extending the ombudsman’s reach beyond South Africa is good for access to justice. She requested the PPSA to make maximum use of its resources, and expressed concern at the duplication of mandates by Chapter Nine institutions. She also expressed concern on the financial implications of the use of consultants by the PPSA. She expressed support for making departments co-fund the reviews.

Mr Horn asked the Public Protector to comment on the correctness of media reports that she is being investigated ‘by the Hawks’ for asserting that her decision-making powers are binding. He stated that, if true, this is unacceptable. He asked the Public Protector to clarify the enforcement of her decisions, but the Chairperson overruled this as a question that falls outside the agenda.

The Chairperson requested the PPSA to revisit the Public Protector’s Act. He wondered whether donor funding to the Public Protector’s Trust would not fuel a perception that the rich are influencing the PPSA. He remarked that most of the nation’s problems arise from moral degeneration. Solutions to these problems require a restoration of social values, of which Ubuntu is the chief. He noted that land dispossession has produced the triple challenge of poverty, unemployment and inequality. He urged the Public Protector to pay closer attention to land claims.

Responding, the Public Protector welcomed the request to revisit the Public Protector Act because of the problematic interpretation of the Public Protector’s powers. For example, some people still mistake the Office of the Public Protector as an entity within the Department of Justice. The decision to start a Public Protector Trust arose from public suggestions. The PPSA is aware of the risks that crowd-funding can bring and is open to ideas on how this can be done with integrity. The Minister of Finance has been written to for advice on the ethics of this Trust. Donor funding comes from a tiny slice of the funds donated to the Department of Justice. The PPSA has only had a few consultations. The proposal for consultants is for the coming year. The Good Governance and Integrity Office learnt valuable lessons from Singapore. The team was displeased with its lack of resources, when compared with what they witnessed in Singapore. The powers of the Public Protector must be exercised by law. The Office of the Public Protector put Ubuntu in its values in furtherance of the Constitutional Court’s judgement in S v Makwanyane. There is no discord between the Office of the Public Protector and the Minister of Justice. Until now, the PPSA has not been able to adequately engage with the land issue because of the huge number of cases it is handling. There was a request to investigate corruption in land allocation and the PPSA was willing to investigate. It is also willing to include land as one of its thematic issues. The Public Protector has never been confused about the ambit of her powers. The Office of the Public Protector made the powers of the Public Protector the subject of a good governance conference in 2011.
The PPSA’s approach to additional funding is allied to the Constitutional Court’s model. Perhaps, the best way to improve funding is to make it clinical by appointing a commission similar to the commission on the salaries of public servants. The PPSA has a functional organogram, to which it invites Members to examine it in their spare time. The advert for a new Public Protector needs to go out as soon as possible to ensure a proper hand-over.
Reviewing the funding model of the PPSA is an excellent idea. There is need for an PPSA plenary with Parliament. It is constitutionally wrong for the Ministry of Justice to speak on behalf of the PPSA. There is really no strained relationship between the PPSA and Ministry of Justice. The PPSA will use consultants cautiously. PPSA staff work hard and do not pass on work they can handle to consultants. However, the PPSA is open to discussions on modalities for using consultants. The PPSA has been offered pro bonos.

Adv Madonsela referred to the APP and said that PPSA had not wanted to change the Strategic Plan because it was already printed. For the team, each branch came with its own target which they had moderated. She replied that North West was a historical problem and as a result had always received a lion’s share of the budget. It would take a while to deal with that historical issue. If the province needed money on a day to day basis, since Public Protector SA is not an executive authority, the transfer budget was a mechanism they could use for now.

The Public Protector's Office had learnt a lot from Singapore and would like to share the specific report. It was amazing from the point of view of improving the quality of investigations. She added that part of the Pubic Protector approach was the timeliness of investigations.

She replied that they had gone beyond the Auditor General's requests and set up mechanisms. She was confident the Public Protector's Office would get a clean audit in 2016/2017.

She requested that the Committee approve the budget and the principled agreements. She assured the Committee that in terms of the other funds, the Public Protector Office did not take just any funding. She said that they could engage with the Committee on a different day in managing departmental overlaps. They would also love to engage the Department of Justice about the Special Investigating Unit (SIU).

The Chairperson said that the Committee and the Public Protector's Office would have a session where these matters could be dealt with and recommendations could be made.

Meeting adjourned.

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