The Public Protector, Adv Busisiwe Mkhwebane, in presenting the Public Protector South Africa (PPSA) Annual Performance Plan, focused primarily on the severe financial and capacity constraints of the institution and a request for additional funding. Staff were suffering from low morale due to an increasingly large workload. Approximately R250 million of the R320 million budget goes to staff remuneration. This model is unsustainable. She said the Strategic Plan aims to adopt an impact driven approach to expand the Public Protector footprint to rural and farming communities.
The discussion by Members had a number of recurring themes, expressing serious concern about institutional instability and the high turnover rate of senior staff and the public perception of staff purges; additional funding balanced against the fiscal challenges of the government which meant that all state institutions had to make compromises; the over involvement of the State Security Agency (SSA) in the Office of the Public Protector; the absence of the Deputy Public Protector as part of the delegation for Committee meetings and his skills not being utilised effectively; the inability of the Public Protector to engage proactively on matters of public concern; the rise in litigation; whether the rules for investigations were followed; the ABSA/CIEX review and the allegation by ABSA lawyers that the Public Protector had lied to the Committee during its 6 March meeting; the personal costs order against the Public Protector and her petition for leave to appeal; her omission to investigate political involvement in the Vrede Dairy scandal and her incorrect assertion that she was limited to investigating matters as framed in the original complaint; the failure to keep complainants up to date on the progress of investigations; and the Public Protector’s appointment of a special advisor.
The Chairperson asked the Committee to observe a moment of silence for Dr Zola Skweyiya, an architect of the Department of Justice in its current form and stalwart of the anti-apartheid struggle. Dr Skweyiya had passed away the previous week and a moment of silence was observed.
The Chairperson thanked the Public Protector, Adv Busisiwe Mkhwebane, for attending the meeting at short notice. There are numerous public concerns which the Chairperson felt needed to be urgently addressed by Adv Mkhwebane. He requested she respond to those issues fully. The Public Protector is an Office which belongs to the people of South Africa and which the public relies on for protection. Any negative aspersions or perceptions about the integrity of her Office should be fully dispelled to the extent she was able to do so.
Public Protector South Africa (PPSA) 2018/19 Annual Performance Plan
The Public Protector, Adv Busisiwe Mkhwebane, said that the previous year she had outlined before the Committee the strategic thrust underpinning the Annual Performance Plan, which is known as the Public Protector Strategic Vision 2023. That vision has eight pillars and seeks to expand the reach of the Public Protector to grassroot communities. The aim is the empowerment of local citizens to act as their “own liberators”. The Strategic Vision aims to achieve this goal by the time Adv Mkhwebane leaves Office in 2023. PPSA had refined its strategies in pursuit of that goal. Rural and farming communities had deliberately been focused into that strategy to enhance access to her Office. It is envisaged this will increase the flow of service which in turn will allow for the more efficient provision of services to those communities whilst simultaneously promoting and sustaining good governance in state affairs.
She outlined the performance targets for 2018/19. These include: producing 30 investigation reports per year, finalising 10 systemic investigations which had been previously identified and achieving 100% adherence to turnaround times. Overall, the Office aims to adopt an impact driven approach. The impact driven approach will assist in the realisation of national targets inclusive of addressing poor service delivery, promoting good governance and achieving the objectives of the National Development Plan (NDP).
PPSA will struggle to achieve its ambitious targets – and properly fulfill its constitutional mandate – without adequate funding. Adv Mkhwebane made an appeal to the Committee to assist in sourcing additional funding for PPSA. Due to inadequate funding PPSA has had to devise means to stretch their budget even further. This has included revising various outreaches and other targets to ensure compliance with SMART principles for targets. Memorandums of Understanding have been concluded with various stakeholders. Those MOUs included agreements allowing PPSA to utilise the physical premises of those stakeholders to increase its footprint and save resources. This is because PPSA cannot afford proper Office accommodation due to inadequate financial resources.
Adv Mkhwebane outlined the strategic goals for 2018/19.
• Investigate and promptly finalise reports. Performance indicators include: the number of strategic reports finalised, the investigation and finalisation of systemic investigations and interventions and percentage adherence to turnaround times in the finalisation of cases. Targets corresponding to those indicators include: finalising 30 reports by 31 March 2019, finalising 10 systemic investigations identified in previous financial years and finalising 100% of cases within pre-determined turnaround times. Notably an additional strategic objective under this goal is to hold 10 dialogues with organs of state on systemic challenges by 31 March 2019 and to follow up on 100% of remedial action matters by 31 March 2019.
• Faciliting access to the Public Protector. Performance targets include: conducting 208 outreach clinics and five national events by 31 March 2019 as well as concluding MOUs with the Department of Justice and conducting four radio shows per province per annum. Conclusion of the MOUs is at an advanced stage.
• Developing and implementing information communication technology (ICT) technology, obtaining a clean audit and acquiring Office accommodation and pool vehicles. Targets included: 100% implementation of hard drive encryption, developing and maintaining the approved clean audit strategy and acquiring long term state owned Office accommodation.
• Strengthening the role of ombudsman institutions. Targets included: entering into one bilateral agreement with an ombudsman institution by 31 March 2019, for the Public Protector chair 100% of African Ombudsman Research Centre (AORC) meeting, of which the Public Protector is Executive Chairperson.
In summary, the Public Protector had revised the strategic mandate of her Office to provide justice and accessibility to all South Africans, but specifically in relation to those living in rural and poor communities. The promotion of good governance, exposing maladministration and accessibility to justice remain core values and objectives of her Office. PPSA remains a catalyst for change in good governance. Two original principles had been changed, but the values had been revised to include passion and ubuntu. Ubuntu emphasises encouraging sound leadership without regard to title, promoting efficiency and encouraging staff to be leaders in their own fields. Targets had been revised to be more specific and efficient. PPSA remains committed to the constitutional mandate of an efficient and people driven institution.
Before the presentation proceeded to finances, the Chairperson asked if the Public Protector would deal with the various public interest concerns at a later stage during the presentation?
Adv Mkhwebane replied that the public interest matters would be dealt with after the second part of the presentation and the Committee Members had been afforded an opportunity to raise any matters they would like her to talk specifically to.
The Chairperson responded he did not want to create the impression that the Public Protector was under examination in a court of law. Preferably, it would be better if she took a head-on and proactive approach to the public concerns about her Office and its performance. However, whether Adv Mkhwebane would take the opportunity to be proactive – in that respect – was in her hands, and he could not prescribe to her how she must conduct her presentation. It was stressed she is not on trial and should proactively respond to public concern about PPSA generally.
Adv Mkhwebane replied that she would take up the opportunity to proactively clear any concerns which may exist about her Office and the performance of PPSA generally. She reiterated she would address those concerns once the presentation was completed and the Committee had posed specific questions which they would like her to talk to.
Public Protector South Africa (PPSA) 2018/19 Budget
Ms Nonhlanhla Dick, PPSA Acting Chief Financial Officer, stated that 2018/19 would be a difficult year for the institution in terms of financial stability. Efforts to secure additional funding for special projects and increasing capacity had thus far been unsuccessful. Regardless, PPSA remains committed to achieving its mandate. This includes revising its operations and structure to stretch its finances even further. However, it will not be possible to continue with normal operations if PPSA continues to finance and conduct its operations in the same manner it has done in the past.
Specific areas of financial concern were then focused on by Ms Dick.
For 2018/19 PPSA had received R310 million which had been allocated to core programmes. The breakdown was as follows: R58 million for delivery of services to persons and institutions to promote and maintain good governance, R139 million for accessible Public Protector services, R4.5 million for the strengthening of oversight and public complaint mechanisms. Approximately 80% of the budget (R250 million) goes to compensation of PPSA employees. The remaining amount primarily goes to Goods and Services. It was stressed that a huge amount of their current structure remains unfunded. The current structure, whereby 80% of costs go towards employment, is unsustainable. PPSA does not wish to maintain that unsustainability for compensation of employees. Currently only 4% of the budget goes towards stakeholder management and an insufficient amount of funding goes to administration and investigations. It was stressed the public expect PPSA to focus more of its funding on the core business so the institution can achieve their core targets.
The R52 million figure – which is outside the cost of employment – was then broken down in more detail:
A large amount is spent on lease payments for buildings, photocopiers and motor vehicles. As indicated by Adv Mkhwebane, an intervention had been to cancel leases of motor vehicles. Alternative measures are been explored to determine how to source transport more affordably. Significant expenditure goes to computer services such as website hosting and Microsoft licences. What PPSA has termed “consultant expenditure” also continues to remain high. Consultant expenditure includes the cost incurred from the Auditor General – which is the internal auditor – and Ngubane Consultants which is the external auditor. Legal costs had also been factored in. Legal costs had seen a significant rise in the last few months. This is primarily due to the remedial action of the Public Protector being now binding. Legal costs would not be adequately serviced in the current financial year as only R4 million had been assigned. This is the most that can be allocated to legal expenses within the current budget.
As a result of the financial challenges, the planning process was quite intensive. The PPSA executive team had considered how the budget could be appropriately cut and operations streamlined to run more efficiently. Regardless, various challenges remain about operating costs. Projections had indicated that the shortfall of R29 million would still remain for 2018/19. In part, this is because of contractual obligations which the institution has which cannot be ignored. Those contractual obligations cost around R57 million. Implemented reductions in employee costs were insufficient to free sufficient capital to meet other operational expenses. This has impacts on operational costs such as travel expenses for investigations and outreach programmes. An additional R29 million would be required simply to meet PPSA basic operational expenses.
In summary strategic challenges include: insufficient funding for 2018/19, low staff morale, capacity shortages and increased litigation against PPSA resulting from various judicial review applications of the remedial action ordered by the Public Protector. Additional challenges include: poor turnaround times from state agencies and various challenges related to security such as the Department of Public Works (DPW) on rental of state owned buildings and the State Security Agency (SSA) continues to pose additional challenges. Interventions to address these challenges include: securing suitable Office accommodation in provinces and regions, conducting an organisational review in the current financial year, presenting a value proposition to National Treasury for additional funding and concluding various MOUs with other state institutions to leverage on synergies.
Requests for additional funding had been pushed back. This is because nothing concrete has yet materialised from those requests and the institution still lacks adequate funding to carry out its core mandate. Arising litigation costs and security risks continue to remain a core concern. Subject matter experts are vital to its work and additional funding is urgently required to attract and retain experts who can carry out proper investigations.
In conclusion, R310 million had been received to finance the operations of PPSA. R250 million would go to employee remuneration while the remainder to goods and services. The executive team had implemented strategies to save costs but this in itself would be insufficient. A request for an additional R250 million would have to be made to fund PPSA normal operations.
Ms Dick presented the case for the additional funding request for the MTEF: Around R870 million would be required for PPSA to implement the MTEF projects outlined by Adv Mkhwebane. This is necessary to move PPSA from its current position, to one where it can effectively serve citizens in achieving the 2023 Vision.
The Chairperson commended Adv Mkhwebane for having faith in the youth by appointing Ms Dick as Acting CFO. Ms Dick gave the presentation with confidence and illustrated professionalism and sound knowledge of the contents.
Adv Mkhwebane said she would respond to written questions which Adv Breytenbach had sent to the Minister of Justice. She would answer those questions in the present forum given that her appearance before the Committee was equivalent to reporting to Parliament. She had raised this with the Speaker of Parliament.
The first question Adv Breytenbach had raised was the number of reports released by the Office of the Public Protector which were taken on judicial review in the past three years. Four reports had been taken on review in 2014/15, three reports in 2015/16, four reports in 2016/17 and seven reports in 2017/18.
The other questions asked for details of each report taken on review and the financial implications of those reviews. The 2014 reports were “Stringed Along” on the National Empowerment Fund and the review incurred R719 000; the escape of animals from the Umfolozi game reserve R319 000; “Regulating Justice” on the South African Bureau of Standards (SABS) R1.2 million (the parties are still exchanging pleadings and as of yet there is no date for the court hearing); “Saving by Notice” R1.3 million in costs which was dismissed in court with costs. PPSA is currently in the process of recovering those costs from the municipality. The 2015 report was “Derailed” is currently under judicial review brought by former Passenger Rail Authority Group GCEO, Mr Lucky Montana. Thus far the “Derailed” review has incurred costs of R79 000 and parties are still exchanging pleadings with no hearing date set. The 2016 report called “Cost of Deviation” on RDP houses in Port Elizabeth has incurred costs of R1.2 million. Part of that remedial action was reviewed and set aside as unlawful. The complainant has taken the judgment on appeal. The 2016 matter about the use of labour brokers by the South African Post Office (SAPO) incurred costs of R798 000. Certain findings and the remedial action were judicially reviewed and set aside. The 2016 “State of Capture” report has incurred costs of R9 million. A North West tender irregularity matter incurred costs of R290 million and is set down for hearing in April 2018. The CIEX matter is R8 million so far where the remedial action was set aside by the Gauteng High Court. The report on expenditure for the funeral of former President Nelson Mandela resulted in an implicated official taking the remedial action on review and consultations are still ongoing. No costs have yet been incurred for the Vrede report taken on judicial review by the DA and the Council for the Advancement of the South African Constitution (CASAC).
The next question asked if the Public Protector had taken any international trips and their cost.
Adv G Breytenbach (DA) interjected. She took exception to Adv Mkhwebane answering the written questions which she had in fact referred to the Minister of Justice, Michael Masutha, to be answered in the National Assembly. It was improper for the Public Protector to answer those questions in the current forum.
The Chairperson stated he personally did not want to actively interrupt the Public Protector. He does not hold a brief for any political party in his capacity as Chairperson. His concern is for the Public Protector to actively address matters affecting the institution and which fall squarely within the public interest. The Committee is an inappropriate forum to deal with questions which had been raised by political parties in their capacities as such regardless of whether those questions came from the DA or the ANC. He requested the Public Protector instead to focus on matters which are in the public interest and which are affecting the institution. He thought he had made this clear to the Public Protector earlier in the meeting. The current approach Adv Mkhwebane was taking was not helpful, nor proactive, in addressing those public interest concerns. Where questions are raised in the National Assembly, those questions must be dealt with in the National Assembly not within the current forum of the Committee. By answering questions in this manner, Adv Mkhwebane was frustrating the ability of Committee members to have sufficient time to properly put their questions to her which form the subject matter of the current meeting.
Adv Breytenbach stated she did not accept for one moment that questions raised by Members of Parliament can be answered in the current fashion in the Committee by the Public Protector. If there is a difficulty in answering those questions properly in terms of the current legislative framework then that is an issue which can be addressed at another time and in another forum.
The Chairperson reiterated that the Public Protector should focus on questions of public interest affecting the institution. He reiterated, once again, that the Public Protector should not deal with specific questions raised by specific political parties which are supposed to be properly answered within the National Assembly and not the Portfolio Committee. He reiterated that as Chairperson he holds no brief for any political party.
The Public Protector responded that – in her view – she was answering questions which are in the public interest as the DoJ had reiterated that there were questions which she had not fully responded to. In her view, which was communicated to the Speaker, the Public Protector bears the ultimate responsibility to account to Parliament or the National Assembly. Therefore, in her view, by answering those questions she was in fact fulfilling her duty to account to Parliament. This was why she had suggested that Members pose specific questions to her about public interest matters they wanted comment or explanations on.
The Chairperson apologised for not fully articulating his views earlier about what he meant by issues affecting the public interest. He felt it was best to leave that to the personal judgment of the Public Protector. Regardless, the Committee would not hold that against her. He agreed the Committee should rather put questions to the Public Protector as they saw fit.
Ms M Mathapo (ANC) thanked the Public Protector and the Acting CFO for the presentation. The positive developments at PPSA should be welcomed such as the conclusions of various MOUs which would improve service delivery and the promulgation of rules for investigations. She hoped those rules would be distributed to the Committee. The offer of assistance by the Public Protector to deliver some seventeen boxes of files to the Judicial Commission of Inquiry into State Capture, chaired by Deputy Chief Justice Zondo, is welcomed. However, there are several serious concerns facing the Public Protector as an institution. First, various adverse court judgments, inclusive of the personal costs order against Adv Mkhwebane in the ABSA/CIEX matter is very concerning. Leave to appeal in that case had been dismissed with costs. Adv Mkhwebane had indicated an intention to petition the Supreme Court of Appeal to appeal against that personal costs order and the refusal of leave to appeal by the High Court. Can the Public Protector give additional information on the reasoning behind the petition for leave to appeal?
Second, the letter by ABSA’s lawyers had raised adverse perceptions about the integrity of the Public Protector. ABSA’s legal representatives had accused Adv Mkhwebane of lying to Parliament during her presentation to the Portfolio Committee on Justice on 6 March 2018. Specifically, ABSA legal representatives stated Adv Mkhwebane had lied to the Committee when she stated she had never personally met with the former President during her investigation into the ABSA matter. Adv Mkhwebane said she had met only with the former President’s legal representatives but ABSA’s lawyers had alleged that statement was untrue.
Third, there is the institutional instability at PPSA. In 2016 the position of CEO was held by a Ms Zondo. Ms Zondo then left within a short space of time. Her replacement Ms Themba similarly left within a short amount of time. Now, it appears there is a replacement with Ms Nthoriseng Motsitsi occupying the position as acting CEO. The same instability appears to be present with the CFO. While she appreciates the fact that a youthful Acting CFO had been appointed, that does not detract from the fact that there is instability within the institution. During 2017 there was another CFO, and during a subsequent presentation, the Committee was informed that she no longer occupied the position due to the implementation of consequence management. The position has now been advertised in March 2018 for a permanent appointment. All this is causing severe institutional instability within the Office. Can the Public Protector talk specifically to that institutional instability? The PPSA wishes to request R870 million as additional MTEF funding. If that amount were to be granted, there is a strong possibility that it would jeopardize the budget and functioning of other institutions. Are there any services which PPSA utilises, such as actuarial services or the use the consultants, which PPSA can live without to reduce overall costs?
Mr G Skosana (ANC) noted the presentation was comprehensive which is to be appreciated. However, this is not the first time the institution has made a request for additional funding. There are several challenges which are directly related to lack of adequate funding. However, as raised by Ms Mathapo, the Public Protector’s Office should be aware that the country is facing an array of financial challenges. All institutions, inclusive of Chapter 9 institutions, are therefore under financial pressure. How can the Public Protector assist the National Treasury in cutting costs to meet that reality? It is important that PPSA also comes to the table and realises that financial sacrifices must be made on all sides. If PPSA commits to meet Treasury halfway, that will assist the Committee in advancing a request for additional funding. It may be worthwhile to revise the structure of the institution – in the short to medium term – to meet some of those challenges. Parliament bears a duty to grow public confidence in Chapter 9 institutions to ensure such institutions operate according to their constitutional mandate. It is important for these institutions – such as the Public Protector – to be proactive and properly clear the air about public interest concerns. Financial instability should not be discussed separately from the overall operations of the entity and public interest concerns such as the integrity of the Public Protector. The Committee is required to clear the air on those concerns and to actively engage the Public Protector on them. Institutional instability has arisen, in part, from the high resignation rate of senior executives. While they may resign for better job opportunities or other reasons – eyebrows are raised when an institution has an extraordinarily high resignation rate. Ms Zondo resigned in November 2016 and was replaced by Ms Dlamini in March 2017. Ms Dlamini resigned in November 2017, some eight months after joining the institution. The public has raised concerns about the high turnover rate of senior executives in the institution. Can the Public Protector speak specifically to that?
In most Committee meetings with the Public Protector, Adv Kevin Malunga, Deputy Public Protector, is absent. While the Committee did not specifically request the Deputy Public Protector to be present it has become a recurring theme where he does not appear with her at Committee meetings. Can the Public Protector speak specifically to why he does not accompany her to Committee meetings?
Mr W Horn (DA) aligned himself with the comments of Ms Mathapo, Mr Skosana and the Chairperson about the perception that PPSA is suffering from a crisis of institutional instability. The institutional instability is directly intertwined with the financial instability of the institution. What is the cost of all those resignations to the public purse? At least one settlement has been concluded with the former CFO. It would be positive to, at least, apprise the Committee of the settlement details inclusive of financial implications to taxpayers. What were the financial implications of the resignations? Are those in acting positions paid according to their original appointment? For example, the Acting CFO was in a level 12 position but is now been remunerated at level 14. That requires an explanation given the financial constraints and whether such a pay package can be justified in terms of the applicable legislative prescripts.
Mr Horn said the rules for investigation were tabled in Parliament; however the Committee itself has not yet had full sight of those rules. He commented on the rules, saying on page 13 of the Strategic Plan, the Public Protector referred to how the Supreme Court of Appeal in the Mail & Guardian case, assisted in setting benchmarks in respect of her investigations. To what extent do the rules – as tabled in their current form – embrace and implement the Supreme Court of Appeal directives? Second, the Public Protector at a previous appearance before the Committee in March 2018 was asked why, in the Vrede Dairy Report, no mention was made of political involvement in the scandal. Her response was that the original complaint never mentioned political involvement and was limited only to maladministration. However, her strategic plan contradicts what she stated in that meeting as it states the Public Protector is not limited to investigating only what is framed in the original complaint but is permitted to take her own initiative in an investigation. It appears the position in the Strategic Plan was ignored in her Vrede Dairy investigation. To what extent will the Public Protector embrace her own rules to the effect that she is not limited to investigating only the original complaint?
Mr Horn asked to what extent the Public Protector is under an obligation to keep complainants informed about the progress of an investigation. This includes a run of the mill investigation about an unfair municipal property evaluation all the way up to high profile investigations. Discussions with the original complainant in the Vrede Dairy matter revealed that the first time he was aware the report had been released, was when he was called for comment by ANN7 after the report was released on the Public Protector website. In the ongoing Gigaba matter, the complainant was also not informed that the Public Protector had requested an extension of the 30-day period. This is odd at best and needs to be addressed in the proposed rules as well.
It also appears investigations in terms of the Executive Ethics Members Act are not prioritised by the Public Protector’s Office. The Public Protector is the sole enforcement agency of the provisions of that Act which gives her Office 30 days in which to complete complaints referred to it. The 30-day period was agreed upon by Parliament for very good reason. Apart from frivolous complaints, violations of the Act need to be dealt with in a serious and speedy manner. This begs the question why – in the Gigaba matter – as leave to appeal was denied relatively early on, the Public Protector has not yet finalised that investigation. Her response was that she is waiting for a response from the relevant Member. However, that begs the question whether the rules permit the Public Protector to request an extension in these circumstances. Under the Executive Members Ethics Act, the rules must make provision that in instances such as the Gigaba matter, such matters must firstly be prioritised by the Public Protector and secondly that Executive Members subject to the Act must prioritise cooperation with the investigation. If the rules do not currently provide for such matters to be prioritised both by the Public Protector and the Executive Member, then the question must be asked if the current rules deal with the Act with the necessary measure of seriousness.
The Public Protector must also inform the Committee of what – in her view – is the current legal position about the CIEX/ABSA Report. At her appearance on 6 March 2018 before the Committee, she stressed she acted with the utmost integrity and good faith in conducting the ABSA/CIEX investigation. She also stated she intended appealing the North Gauteng High Court ruling. However, it later transpired that the aspect of the judgment she intended appealing was the personal costs order against her and the adverse finding that she failed to understand her constitutional obligations as Public Protector. Leave to appeal that judgment was not granted as the High Court found there was no reasonable prospect of success. It is now in the public domain that the Public Protector has, as a result, contemplated petitioning the Supreme Court of Appeal to appeal against the High Court judgment. In effect, the High Court had ruled her remedial action in that matter was absurd. The Committee must be informed why it should believe that she did act in a constitutionally permissible manner, consistent with good faith, in conducting her investigation. If she did not fully understand her constitutional obligations, mandate and functions – which has been pronounced upon by the court – then that does raise questions about her competence to occupy the Office. This is only strengthened by the fact that she has not appealed those parts of the High Court judgment, which made those findings against her. It is clear that a very serious errors in law was made, both in the report, and remedial action, even if it is accepted that the Public Protector did actually act in good faith. The Public Protector in fact has admitted that she made serious errors in law in the CIEX Report, given the fact that she is not appealing those findings in the High Court judgment. The Public Protector must then convince the Committee, given the material errors in law she made in the report, that she has the requisite professional competence to occupy her Office.
Finally, Mr Horn agreed with Mr Skosana that it may be necessary to re-evaluate the organisational structure of the institution. The approved staff component, going back as far as 2012, should be re-evaluated. That staff component has never been fully considered by Parliament. Ultimately, it is not helpful for PPSA to simply state they require a certain amount of funding, often in the hundreds of millions, to continue operating. Given the economic challenges the country is facing, an honest appraisal must be conducted by the institution to determine what is vitally necessary to maintain its functions. After that appraisal has been concluded, then it will be appropriate to again engage Parliament or Treasury in a request for additional funding. At this stage – in his view – it is not good enough to simply request a long-term cash injection amounting to over half a billion rand for the institution to continue performing its functions. In his view, there was no way that Treasury would provide that amount of funding without more information. Without such an appraisal it was unlikely Treasury would take such a request seriously at all.
His difficulty in assessing the financial needs of the Office, is that the Committee is largely in the dark as to what the real financial situation of the Office actually is. Previously when these matters were placed before the Committee, the Committee would informed of the number of complaints and its backlog. That information used to be forthcoming previously but now none of that information is forthcoming whatsoever. The targets set are very vague. For example, one is to finalise all matters which are older than two years. However, there is no appraisal on the complexity of those matters and if some headway may have been made. For Parliament and the Committee to properly assess financial constraints, a detailed breakdown of the operations needs to be provided, before talks on providing further capital can be properly considered.
Adv Breytenbach raised questions about the conclusion that the PPSA budget appears to be close to depletion. By how much is the budget in the red? An actual figure in rands should be provided. It appears that a large amount of the budget is being utilised on the large volume of litigation the Office is party to. Currently around 15 to 20 matters are on judicial review. Some of those date back to the tenure of the previous Public Protector. However, the majority of those matters emanate from the current Public Protector. Why are so many matters being taken on judicial review?
It is apparent from the presentation that security expenditure has increased significantly. What are the reasons for that spike in expenditure on security and how does that additional expenditure impact on an already constrained budget? The presentation is unclear whether the Public Protector signs performance agreements with staff. Are performance agreements in place, are they currently up to date and are they implemented? It is apparent there are limited to no funds available for subsistence and travel (S&T). How does this affect investigations in smaller towns and rural areas? How then does that affect the ability of the Public Protector to fulfill the constitutional and statutory mandates?
The Committee has received numerous reports on the electronic case management system. That system however has not been functional since at least 2014. Lack of funds is always cited as the problem. The Committee has been informed that the Microsoft platform licence had been purchased. Has that platform been installed and if not, why not? Is there any other electronic case management system, apart from the Microsoft system, currently been installed? If yes, who is developing and installing that system? What financial arrangement exists for the financing of the case management system? How is that system been paid for, and to whom is that financing being paid? How does that affect the ability of PPSA to remunerate its staff under an already constrained budget?
Is there a security manager in the PPSA Office, and if yes, has he been suspended? If he has been suspended why was he suspended? PPSA appears to have an Acting CFO. Is this still the case or has the position been filled permanently? If there is an Acting CFO, from which institution has the CFO been seconded? The CEO post was advertised and interviews arranged. Presumably, the current acting CEO – amongst others – was shortlisted for that position. How many shortlisted candidates were interviewed for the post? If a permanent appointment has not been made, why not?
Did the Public Protector attend the African Ombudsman Research Centre (AORC) conference in Malawi. If yes, how was the trip funded? Did the executive secretary and her protector accompany the Public Protector on that trip and if yes, why was it deemed necessary to have them accompany her on the trip and on whose account were those additional expenses paid for? Is it correct that training is offered by the African Ombudsman Research Centre (AORC) at these conferences and if yes, did the Public Protector make use of that training for its full duration? The Public Protector has stated that she chairs the AORC board. Did she chair the Board at the Malawi conference and if not, then why not? The documents refer to the appointment of various special advisors. Why does the Public Protector want to appoint a special advisor and how will such a person aid her in performing her functions? The Public Protector Act requires the Public Protector to consult with the Minister of Finance and the Public Service Commission in appointing such an advisor. Have those consultations taken place? Given the budget constraints of the Office, how will such additional personnel be paid? What are the reporting lines of those persons? The policy presented to the Committee, appears to make no link between the Accounting Officer and the special advisor. Why does the policy make no provision for such a link? Have such advisors been appointed at present? If so, why is their appointment necessary given the fact there is a Deputy Public Protector and Executive Committee advisors? Why would a special advisor then be necessary at all? Finally, she noted the DA has severe reservations about the Public Protector’s current policy and will in all probability oppose it.
Mr S Swart (ACDP) referred to the letter from ABSA’s lawyers – stating the Public Protector had lied during her engagement with the Committee in March 2018. He said he had not had sight of that letter. It was unclear if that letter was circulated amongst the Committee, but it would have been helpful to have received a copy. Does the Public Protector intend to comment on the allegations contained in that letter?
The Chairperson interjected. The ABSA letter was circulated amongst the Committee. The fact that Mr Swart did not receive the letter was not intentional but appeared to be the result of an administrative oversight.
Mr Swart accepted the Chairperson’s explanation. He requested the Public Protector to respond directly to the contents of the ABSA letter, both during the meeting and in writing.
About budgetary constraints, in October 2017 the Committee, in its Budgetary Review and Recommendations Report, did recommend additional funding for the Public Protector to cover litigation expenses and increase investigative capacity. It is very concerning that there are an increasing amount of review applications been brought. To meet the litigation expenses in those review applications, PPSA will require additional funding. Regrettably, National Treasury had not responded positively to that Budgetary Review and Recommendations Report, a fact which the Public Protector is most likely aware. Treasury – in response to the budgetary report – had stated that due to the constrained fiscal outlook, requests for additional funding would not be forthcoming. The same Treasury response had stated that public departments – inclusive of Chapter 9 institutions such as the Public Protector – would be required to reprioritise funds within their existing baselines, to fund existing priorities. While he sympathised with the PPSA request for additional funding, the response of Treasury did not seem amenable to such a request. An additional request could be made by the Committee. However, as was apparent from the Budget Speech earlier in the year, the current fiscal outlook and demands on the public purse continue to remain severe. He agreed with the Acting CFO’s comment, that every cent used by the institution must be correctly spent.
Taking all of this into consideration, it is very concerning to see that R8 million was spent on the CIEX/ABSA judicial review matter. That is a substantial amount of money to spend on a single court case, given that the budget for last year was only about R300 million. While there are many aspects to a review application it was highly concerning to see the findings of the Gauteng High Court which made severe adverse findings against the Public Protector. This matter was dealt with in March 2018 committee meeting. However, subsequent to that meeting both ABSA lawyers and some media reports, had stated that the responses given by the Public Protector at that meeting were incorrect at best or amounted to the Public Protector actually misleading the Committee at worst. These issues should be responded to by the Public Protector. At the previous meeting the Public Protector had indicated those matters within the Gauteng High Court judgment would be appealed. If those matters are being appealed, clarity should be provided on whether the finding that the Public Protector failed to disclose her meetings with the Presidency before releasing the report, will also be subject to an appeal. Media reports had stated that meeting was not disclosed in the Public Protector’s answering affidavit and no reference was made to the second meeting with the Presidency – an omission which the High Court noted was a matter of grave concern. Would the Public Protector appeal the finding that the remedial action instructing the Special Investigating Unit (SIU) to recover the Bankorp funds be appealed, given the fact that the Public Protector lacks any legal power to instruct the SIU? Finally, would the Public Protector appeal the finding that she breached section 7(9) of the Public Protector Act, in that she failed to afford ABSA and the South African Reserve Bank (SARB) an opportunity to respond to the adverse finding made against them, seeing that such an opportunity was presented to both the Presidency and the State Security Agency (SSA)?
In this last finding, the High Court found the explanation of the Public Protector to be “disingenuous”, which is simply a polite way of saying that a person is not telling the truth. The High Court also made additional adverse findings, in that the Public Protector could be reasonably suspected of bias and secondly that she failed to properly understand and appreciate her constitutional duties. This is a scathing judgment with a multitude of serious adverse findings which have been made against the Public Protector personally by a full bench of the High Court. To what extent will those various adverse findings be taken on appeal? While the Public Protector has indicated an intention to appeal other findings on petition to the Supreme Court of Appeal, she should respond to the various allegations raised in the letter from the ABSA lawyers and speak to the adverse findings specifically.
A number of comments about the policy of the Public Protector and the appointment of special advisors were made by Adv Breytenbach and Mr Swart aligned himself with those comments. The document in question was filed on 4 April 2018. Where would the funding for those special advisors come from? How would their positions fit in within the existing structure of PPSA? Has there been discussion with the Minister of Finance and the Public Service Commission as is required by law? How will the appointment of that advisor fit within the existing structure of the Public Protector Act? The Public Protector Act does permit the Public Protector to apply for the secondment of officials. However, this situation involves the specific appointment of special advisors at the Office of the Public Protector and should be responded to.
The Chairperson stated the Public Protector occupies a position of leadership. Leaders should be proactive in the performance of their duties. At the Public Protector’s last appearance before the Committee, the Committee had raised a concern that she had failed to investigate the role of politicians in the Estina Dairy matter. Instead, she limited her investigation to what the administrative officials did or did not do. Has she taken steps to investigate the role of politicians, and if not why has she not done so?
Lawfare remains a seriously problem within the country. The government cannot be run through the courts. In his view, meeting with the President, any Minister or ABSA – in a case where any adverse finding were to be made against them – would not be wrong. In fact, it would assist in preventing the unnecessary litigation of those matters in court. Why would the Public Protector conceal the fact that she meet with the President in the CIEX matter? Why did she fail to meet with ABSA or any Ministers before adverse findings were to be made against them? The Constitution clearly states her mandate is to support constitutional democracy. The Constitution does not state that her role is punish those who run the state. Is it maybe the case that the Public Protector does not properly understand the meaning of supporting constitutional democracy? Would it not be preferable to constructively engage with those persons, and therefore avoid the lawfare which is currently playing itself out? Deputies are not appointed as a luxury. Why is the Deputy Public Protector not present to assist the Public Protector in answering the questions by the Committee? The absence of the Deputy Public Protector, now means that the Chairperson is compelled to convene a tea break, so that the Public Protector can properly engage with her delegation to provide full and adequate responses to the questions raised. If the Deputy Public Protector was present – who has delegated responsibility under Adv Mkhwebane – he would be able to provide assistance to her in answering those questions.
Adv Breytenbach agreed with the Chairperson, asking where the Deputy Public Protector is.
Ms Mathapo noted that the PPSA spokesperson, Ms Cleopatra Mosana, is no longer employed in that capacity. This is very concerning as there is a public perception that Adv Mkhwebane has engaged, or is engaging, in a purging of the staff within her institution. If Ms Mosana is no longer employed as the spokesperson, does she occupy any position within PPSA?
Adv Mkhwebane responded that a tea break would be unnecessary. She did not require consultations with her delegation before answering questions as she felt she was fully equipped to do so, without such assistance.
The Chairperson responded that a tea break should rather be convened. This was necessary to be fair both to the Public Protector and to ensure that full and detailed answers would be provided to the questions raised by the Committee.
A short tea break was convened to allow the Public Protector time to consult with her delegation.
Following the tea break, the Chairperson posed an additional question. Is not a concern of the Public Protector that the Hawks have raided the Office of the Premier of the Free State, to the effect that the Hawks are effectively “running ahead of her” in matters facing the government, as part of her mandate to support constitutional democracy?
The Public Protector first responded to the question raised by Ms Mathapo, Mr Swart and Mr Horn about her petition to the Supreme Court of Appeal to appeal against the judgment of the Gauteng High Court judgment. The High Court leave to appeal application was dismissed with costs. The order dismissing the leave to appeal application was dismissed on the same day. The petition to the Supreme Court of Appeal was a matter which she had raised in her previous appearance before the Committee. As a Chapter 9 institution, PPSA requires the support of the Committee in fulfilling her functions and achieving her mandate. As a constitutional body, the Public Protector is obligated to perform her functions without fear, favour or prejudice. A personal costs order – such as the one given by the Gauteng High Court – has the effect of undermining the independence of the Public Protector as it instils a sense of fear in her, about the performance of her constitutional duties. It was for this reason that her application for leave to appeal focused primarily on the personal costs order of the High Court judgment. Mentioning Mr Horn directly, the Public Protector stated the Gauteng High Court judgment canvassed the evidence which it relied upon to conclude that the Public Protector could be reasonably suspected of bias. The documents which would be presented to the Supreme Court of Appeal in rebutting those findings, would be presented to the Committee in due course. Those documents would narrate the true reflection of what actually transpired and the reasons – in her view – the personal costs order should be set aside. She stressed that the personal costs order of the High Court has the detrimental effect of undermining the independence of the Public Protector and furthermore prevents her from properly executing her constitutional responsibilities.
About the ABSA lawyers’ allegation that the Public Protector had lied to the Committee during her appearance on 6 March 2018, to the effect that she was untruthful about prior meetings with the Presidency, she responded that the affidavit in the High Court matter properly sets out what really transpired. It is unfortunate that the High Court instead decided to believe what the other parties had stated to the effect that she had met with the Presidency and failed to disclose that fact. Her affidavit appears on the PPSA website. Paragraph 171 onwards of the affidavit sets out the details of her meeting with the Presidency. That meeting goes directly to the provisions of section 7(9) of the Public Protector Act, which requires implicated persons to be afforded an opportunity to be heard before any adverse finding is made against them. Paragraph 171 indicated an email was received by the Presidency which requested a meeting. The purpose of that meeting was for the Presidency, on its own request, to respond and clarify its representations about the section 7(9) notice. The affidavit indicated she had met with the Presidency’s legal advisor, together with legal services and one of the senior investigators. Paragraph 173 clearly indicated the content of that discussion revolved around the remedial action in her report. It was noted that there was an existing proclamation by SIU which was never finalised. This was because Judge Heath, former SIU Head, had only issued a media statement on that proclamation. Those facts were clearly mentioned in her affidavit. The High Court’s reasoning in that respect was contradictory. This was because the court found that the matter was finalised, but later then found the proclamation had not been finalised as only a media statement had been issued. The problem is that there was no report from Judge Heath, only a media statement. Responding directly to Ms Mathapo, the Public Protector said her affidavit fully canvasses all those events. Where a meeting with the Presidency did occur, that meeting was fully disclosed. That meeting dealt specifically with the CIEX Report. Other meetings with the Presidency dealt generally with the operations of her Office about investigations such as violations of the Executive Members Ethics Act.
On institutional stability, the Public Protector responded directly to Ms Mathapo, and stated the institution is stable. Ms Zondo had resigned as CEO because of health issues. There was not much the Public Protector could personally have done in that instance to ensure that Ms Zondo remained. Mr Dlamini had resigned of his own free will. It should be remembered that the leadership of an institution such as the Public Protector requires integrity and competence, and, in certain instances, there were instances were certain duties were not adequately performed as measured against the applicable targets. Mr Dlamini therefore had decided to voluntarily resign, and she personally could not prevent a person from resigning if they wanted to leave. Ms Motsitsi, the acting CEO, is currently on sick leave and hence that was the reason for her absence. Ms Motsitsi had indicated a clear willingness to act in that position. As the post of CEO was vacant, PPSA had accumulated savings as regards the compensation of employees. Ms Motsitsi however had decided not to take the accounting allowance. Some money was paid into her account on the CEO scale, but she had declared she would take that money. As the executive manager of the institution, she has delivered extremely good performance. A number of findings in the Auditor General (AG) report such as irregular expenditure, has been significantly reduced. It is possible that the workload of PPSA is too much for some people who cannot cope with the amount of work involved. Three candidates had been shortlisted for the CEO post, but all three subsequently pulled out. It is unclear why those candidates pulled out. PPSA’s recruitment agency had been requested to source additional candidates. Five candidates were provided, and two possible candidates were identified. The only remaining issue is the vetting process, to ensure that when either of those candidates assume employment, they will have been properly vetted. Various options with Human Resources are been explored to determine how to improve stability within the institution while the vetting process is been undertaken.
About consequence management, that was an issue raised by the AG. A settlement agreement had been concluded with the person concerned. The reason for concluding the settlement was because the person had referred a dispute to the CCMA. He was paid eight months salary as a result of the settlement. Treasury had indicated they would be unable to second a person to fill the acting CEO position due to capacity constraints. The SSA however had indicated they would be able to second a person to fill that position for eight months. That period is now ending hence the appointment of Ms Dick. Ms Dick has a level 13 remuneration level and not level 14. Ms Dick is now at the level where she can appointed to level 14, which is permitted by PPSA policy.
About compromising on the request for an additional R870 million in funding, she noted that a letter was written to the Speaker – which copied in the Chairperson of the Committee and the Minister of Finance. Even if the R870 million was not forthcoming, there are some accumulative deficits which go back to 2013. Goods and services, when calculated in terms of contractual obligations, come to around R57 million but PPSA can only cover R52 million of that debt. The balance of R5 million would constitute a deficit. In addition, there are various discretionary operational items – which PPSA cannot operate without – which comes to around R24 million. The total deficit for the institution, in terms of those costs, comes to R29 million.
There are currently 363 staff members at PPSA. 190 staff members are investigative staff which constitute core staff members. Several resignations have been received. In the 2017/18 financial year, five senior investigators resigned. Three had received better offers elsewhere, while one assistant manager had been placed under administration.
Ms Mosana is no longer the spokesperson as she has been internally transferred to the communications department within the institution. It was stressed that she has not been purged. However, it is vital to maintain a duty of trust between the spokesperson and the Public Protector. No financial resources have been wasted as a result of her transfer.
Responding to Mr Skosana, the Public Protector reiterated PPSA is aware of the fiscal challenges facing the country. PPSA, in the last quarter, had through the Acting CEO rigorously issued circulars to implement cost saving measures such as: no longer procuring bottled waters and engaging in less travel. A decision was also made to summon public officials subject to investigation to the PPSA Office, rather than investigators travelling to their offices to conduct investigations. The vacant posts have not been filled. This is because a decision was taken that the institution can continue to function without filling those posts. However, certain key positions had to be filled such as the CEO and CFO. The Acting CFO is highly qualified as a chartered accountant. She was already been remunerated at a comparatively high salary to that of the CFO. Therefore, the fact that she has been acting in the CFO position – and been remunerated on that pay scale – has not resulted in a significant increase in costs. The institution provides services to approximately 55 million people with an extensive mandate. Comparatively other institutions such as Legal Aid SA have a budget of around R1 billion. While Legal Aid SA has a specific mandate, PPSA is expected to provide assistance across a broad spectrum of issues. Funding however continues to remain a serious concern for the institution.
The Department of Public Service and Administration (DPSA) had been approached to provide assistance in ameliorating the financial constraints of the institution. DPSA had to be approached because PPSA does not have financial capacity to implement quick turnaround strategies. DPSA had agreed to assist in developing innovative strategies to develop an integrated structure for PPSA.
Due to the high number of investigations conducted by PPSA, a number of the staff are suffering from low morale and are worn out. This is a particular aspect of concern to the Public Protector Office as a whole.
About the absence of the Deputy Public Protector, one of his duties is to assist in training of staff. Several issues had arisen about the quality of PPSA reports. Training by the Deputy Public Protector on aspects of procurement law had already begun during the middle of Adv Mkhwebane’s current term. Training does depend on the schedules of staff as well. In sum, the Deputy Public Protector could not attend as he was engaged in the training of PPSA staff. Such training is necessary to ensure that staff have the proper capacity to fulfill their work and that PPSA remains an efficient organisation.
About the settlement agreement with the former CFO, the settlement was for payment of eight months. Following the secondment from SSA, PPSA no longer incurred any further costs for that. Ms Dick would indicate the exact amount which was paid to the former CFO under that settlement. No severance packages were paid to officials who willingly resigned. No financial implications were incurred as a result.
In response to Mr Horn’s question on the Public Protector rules, those rules do cover a number of issues which were raised by him. For example, the service standards under the rules require that a complainant is updated on the progress of any investigation every six weeks. The rules additionally stipulate the proper procedure about responses of section 7(9) notices under the Public Protector Act. Currently, the Public Protector is unaware whether the rules fully incorporate all of the principles and guidelines as set out in the Mail & Guardian case in the Supreme Court of Appeal. It would be necessary to first study that decision again before any final comment can be made about whether the rules properly give effect to the principles in that judgment. This question will be properly responded to in writing.
On why the Vrede matter did not investigate political involvement in the scandal, it was indicated both in the Report itself and at the March Committee meeting that the report was ready when she took office. The internal think tank had already taken a decision by that point that the report was ready. There was nothing in the Vrede Dairy file which was declared in court under Rule 53 of the Uniform of Rules Court (URC). The Executive Committee, through the Accounting Officer, had also signed off the report at that time. In sum, the report was already in a draft format by the time she took office. The only remaining issue which Adv Mkhwebane was involved in was the issuing of section 7(9) notices and the incorporation of those responses into the final report.
The Chairperson interjected. Would true leadership not require a person in the position of the Public Protector to state that it was a serious omission for the investigation, and final report, not to investigate the role of politicians in the Vrede matter? Why did the Public Protector not go back, revise the report, and then deal fully with all the issues inclusive of political involvement in the scandal to rectify that initial omission?
The Public Protector responded she had addressed this specific concern at the March Committee meeting. A new file would have to be opened to expand the scope of the original report as she is currently functus officio and cannot exercise her powers in respect of the same matter twice without the report being set aside on judicial review. A new file can be opened to investigate the role of politicians in the matter which PPSA would be doing in the new future.
On updating complainants, it was noted that complainants are updated on the progress of investigations. Investigators do update complainants on the progress of matters. In the Gigaba matter, Mr Horn had stated the complainant had not been informed of the progress in the investigation. During the meeting with Mr Maimane in December 2017, an agreement was made that all updates on that matter would be sent to Mr Maimane directly. In this instance an update was sent to the DA and simultaneously the media became aware of the matter. Media often pose questions about the progress of certain investigations and that information is provided.
On investigations under the Executive Ethics Members Act, when a matter cannot be finalised within 30 days, the President is informed of that fact. The President would then be informed that when the report is finalized, he will timeously be issued with it. The rules do currently provide for the timeframes within which investigations, inclusive of investigations under the Executive Ethics Members Act, must be completed and what needs to be prioritised. When Members of Parliament consult and revise the Act, they will discover that the rules are very detailed and were drafted in consultation with advisors from the DoJ. She reiterated that she would respond in writing to the question of whether the rules comply with the principles and standards laid down in the Mail & Guardian case in the Supreme Court of Appeal.
Reporting on the backlog in complaints is usually dealt with in the PPSA Annual Report. However, those matters would be specifically responded to in writing about the amount of cases which are currently backlogged and the number of investigations and complaints which are currently ongoing. That written response would also reflect on how worn out PPSA officials are given, the large workload they are facing. A large number of trainees had to be let go at the end of March 2018. Their removal had freed up R4 million revenue. However, this did have a negative impact on staff morale as investigators then did not benefit from that extra capacity in performing their investigations.
The current deficit of PPSA was around R15 million at the end of March 2018. However, the DoJ did come to the rescue of PPSA in providing that amount in order to meet that deficit. That amount has assisted the institution greatly, especially given the closure of the books at the end of the last financial year.
The Acting CFO would speak specifically to the question of expenditure on security and its increase. PPSA had to compromise on its security due to a lack of financial resources.
All staff have signed performance agreements since 2016/17. Previously, a number of staff had refused to sign performance agreements as they alleged that the performance agreement policy kept on changing without proper consultation. That disagreement had been resolved and PPSA staff had since signed those agreements. The AG however had discovered two employees who had not signed and consequence management had been implemented in respect of those employees. It is important for such employees, who in this instance occupied managerial positions, to lead by example. All employees have signed for the 2017/18 financial year. PPSA employee performance agreements for 2018/19 will be finalised by end May.
On cost savings, it was reiterated that travel costs have been reduced by summoning implicated public officials to PPSA offices. The only exception is in loco inspections which require PPSA staff physically to travel to those areas.
The Microsoft licence had been purchased, and the software installed. The Acting CFO would provide more detail on the precise amount spent on that licence. An additional R8 million is required to properly operationalise the electronic case management system. The delay in fully operationalising the system does have an impact on PPSA senior investigators who need to keep track of their files and ensure the files are up to date, the investigation is progressing well and complainants are properly informed. Currently PPSA is not utilising that tool and is relying on spreadsheets to keep track of investigations. The delay in implementing the electronic case management system does have a negative impact on service delivery and efficiency.
The Public Protector replied the security manager had not been suspended. Currently he is on training at the SSA and is still within the institution.
Adv Breytenbach interjected. She had an additional point of clarity about the case management system. Who is developing that system and who would run it?
The Public Protector responded the system is a “off the shelf” development. The system is developed by a company called Centura. A written response would be provided about the finer details of the system which is currently in its first phase of development and has therefore not been installed. PPSA has all the required processes in place as to how the system will be operational. Current negotiations are ongoing with various government departments to provide further assistance. Assistance had been requested from SSA and the State Information Technology Agency (SITA). This is an ongoing development within the current available resources due to the fact that PPSA lacks the R8 million figure. A large amount of money would be saved if private companies are not used to provide those kinds of services.
Five people were interviewed the previous week for the position of CEO. Those candidates still require a competency assessment and vetting. Negotiations with the SSA would occur to fast track those processes.
The Malawi trip was not an AORC meeting. AORC was only providing training on accountability and transparency. The Chairperson of AORC did pay for that trip as well as for the CEO. The Acting Chief of Staff also attended that meeting as the CEO could not attend. The Public Protector cannot travel without her protector due to security reasons and that protector attended that meeting. The Acting Chief of Staff would provide minutes and all the issues which would need to be followed up.
The Chairperson interjected. The Public Protector should respond to all aspects of the questions raised. One leg of the question was whether the Public Protector chairs all the AORC meetings.
The Public Protector replied she does intend to respond to that. The training was three days long. She did not attend the third day as she had an investigation she had to attend to. That investigation was coupled with the State of the Nation Address (SONA). As the meeting in Malawi was not a board meeting she did not chair the meeting.
The special advisor would provide legal, political and economic assistance especially on matters of litigation. The Minister of Finance had been consulted and Parliament informed. The savings from the CEO post would be used to remunerate the special advisor. The special advisor would only be in the post for three months, and therefore would not have a detrimental financial impact on the institution in so far as remuneration. Section 7(3) of the Public Protector Act does provide for such an appointment which was followed.
Onthe ABSA letter, the Public Protector had not had sight of the letter itself. Her response to Ms Mathapo did – in her view – cover various issues which were raised in that letter.
The Chairperson ordered that the ABSA letter be resent to the Public Protector.
The Public Protector responded that if her Office received the letter she would respond in due course. Her engagement at the 6 March Committee meeting, as read with her founding affidavit, do speak to various allegations which were raised in that letter.
The Chairperson interjected, saying the ABSA letter was sent to her Office on 29 March 2018. The date of the current meeting was 17 April 2018. This suggests there is dysfunctionality in her Office.
The Public Protector asked to whom was the letter sent? She would follow up on that and take appropriate action against the person responsible. The IT system would be checked to see why she did not receive the letter. The same issue happened during March, but further enquires would be undertaken to get to the bottom of the problem.
The Chairperson stated the issues of capacity in her Office need to be urgently addressed. Parliament has sent the letter and for her Office to not timeously receive the letter reflects negatively on both Parliament and the Public Protector.
The Public Protector requested that all further communications be sent to Ms Nkabinde or herself. There is no email she receives which she does not respond to.
The Chairperson responded the Public Protector was specifically copied in personally on the email, attaching the ABSA letter, which was sent to her Office.
The Public Protector stated this was not possible and she did not receive the letter.
The Chairperson stated he would not pursue this particular issue further. Capacity needs to be urgently addressed. There is a difference between the Public Protector as a person and the Office itself. Again, this does tie in with the Committee’s concern that the Deputy Public Protector is again absent.
Responding to Mr Swart, the Public Protector stated she would provide her evidence and affidavit in the ABSA/CIEX review application in the High Court to dispel any notion that she was untruthful before Parliament at the 6 March Committee meeting.
The Chairperson interjected. The purpose of the Public Protector meeting with the Committee is for her to account generally to Parliament but also for the Committee itself to account to the public for the performance of her functions. It is insufficient for the Public Protector simply to state that she would refer the Committee to her documents which she lodged in court. The Public Protector must respond openly and fully – on the record – to the concerns raised by Mr Swart.
The Public Protector responded that Mr Swart referred to various media reports which stated ABSA lawyers had alleged the Public Protector had lied to Parliament. As mentioned earlier in her response to Ms Mathapo, her affidavit in that matter, which appears on the PPSA website, clarifies and – in her view- rebuts any allegations that she was untruthful before the Committee. The meeting with the Presidency on the investigation was conducted in the presence of the legal advisor and one senior manager. Other meetings were not included because they did not relate to the investigation itself. That response would be provided more fully once she had received the letter from ABSA. She stressed she did not personally meet with the President to discuss the ABSA/CIEX matter. The meeting with the Presidency was necessary to ensure the reopening of a proclamation by the SIU to ensure that appropriate and effective remedial action could be taken in the matter. As indicated in the previous meeting, both Judges Dennis Davis and William Heath had concluded the Bankorp bailout was unlawful. The section 7(9) notice under the Public Protector Act was provided to ABSA. The same notice was given to SARB, National Treasury and the Presidency. The Director General of the Presidency requested an additional meeting, pursuant to the section 7(9) notice, to clarify the challenges with the report. That meeting took place with the legal advisor of the Presidency. The primary challenge of the Presidency legal advisor was about a commission of inquiry as part of the remedial action as this is a matter which is currently before court.
On the High Court finding that the Public Protector was reasonably suspected of bias, the Public Protector replied that the finding of bias was directly linked to the personal costs order against her.
The Public Protector agreed with the Chairperson about the need to investigate political involvement in the Estina matter. A new file would be opened to investigate political involvement in the scandal. All parties need to be given a proper opportunity to respond during the course of those investigations. Any elements which are discovered during the course of investigations will be properly investigated. All necessary processes need to be followed.
In response to the Chairperson’s comment that the “Hawks are running ahead of her”, the Public Protector said this came to an issue of financial and capacity constraints. Investigators are overburdened with some having up to 10-20 files, often involving complex matters, which require investigation. Implicated persons also require affording them opportunity to respond. Currently, there is no ongoing investigation against the Premier of the North West. If capacity constraints are properly dealt with then those turnaround times will improve significantly. Currently, there is no direct complaint against the Premier of the Free State. However, as indicated earlier, investigations about the political role of the politicians in the matter would be opened and the Premier would most likely have to be investigated as well. A country which bases itself on the rule of law, similarly means that where justice is delayed, justice is denied. A major challenge of the institution is conducting efficient administration and investigations.
The Chairperson stated that 2018 is the year when the country celebrates the life and times of Mr Nelson Mandela and other icons. The greatest tribute which can be made to them is to ensure that South African democracy survives. People know, inclusive of Mr Nelson Mandela, that all people elected to government are not “angels”. This is the exact reason why it was deemed necessary to have Chapter 9 institutions to support constitutional democracy. It is a negative development, for any democracy, where the Premier’s Office is raided by the Hawks, Ministers are raided, and people engage in lawfare. If adequate leadership is in place, then there will be foresight and proactive intervention before issues arise. If quality leadership is not in place, that leads to a breakdown in public trust of government. In particular, it cannot be acceptable that the budget for service delivery at PPSA is then substantially used up on opposing judicial reviews in court. Amongst other things, these issues need to be seriously considered and appropriate solutions identified and implemented to prevent them arising in the future. Those issues must be specifically addressed by the Public Protector. Such money cannot be used for the Public Protector to continually defend herself personally against aspersions raised against her. The South African Constitution is a perfect Constitution. The Public Protector needs to respond more fully to the issues raised in the meeting in writing. An impression cannot be created amongst the public that officials – inclusive of Chapter 9 institutions - are incapable of running government properly. His Office is inundated with public complaints to the effect that the Public Protector is not properly attending to their matters. The Committee’s position is not that they must interfere with her work. However, when she reports before the Committee specific details need to be provided, specifically a more detailed breakdown of backlogs. The Committee respects the independence of her Office but at the same time she must remain accountable to the public when they lodge complaints. If there are complaints, then the public must be proactively informed.
Adv Breytenbach stated she had two questions which went unanswered. First, has any person been appointed in her Office in the capacity of special advisor? Second, bearing in mind she wants to or has appointed special advisors, what role does the Deputy Public Protector or the Executive Committee then play if not an advisory role?
The Public Protector responded that PPSA aims to support constitutional democracy in accordance with Mandela’s legacy. Unfortunately a lack of proper funding and capacity affects the ability of the institution to properly achieve its mandate. A large volume of backlogs does create challenges. All of these issues about the work of each investigator, capacity challenges and innovative ways of dealing with them would be responded to in writing. Those people who have complained to the Chairperson about a delay in the finalisation of investigations, had most likely lodged their complaints between five to ten years ago. Those backlog matters do have an impact on the current functioning of the institution.
Defending her reports in court is part of her constitutional duties as the Public Protector. It is her duty to ensure that she can perform her functions without fear, favour or prejudice. Other matters would not require defending as the courts would be better equipped deciding without her intervention in the litigation.
A special advisor had been appointed for three months. Savings in compensation of employees is being used to remunerate that advisor. Mr Sibusiso Nyembe had been appointed to that position is who is a qualified attorney with a variety of additional qualifications. He will also be assisting the legal services division as he has practised as a conveyancer in the past.
The Deputy Public Protector is currently involved in training on procurement law, which was indicated earlier in the meeting. The Executive Committee, especially the executive manager, are worn out at present. For example, the executive manager responsible for administrative justice is worn out. If she were appointed as the Acting CEO, that would add to an already overly burdensome workload.
The Chairperson asked why, given the high number of unemployed and qualified graduates, the Public Protector did not take the initiative in appointing those graduates to positions at PPSA? Instead, the Public Protector has decided to send highly qualified members of her staff to get additional training in procurement law. Something has clearly gone wrong in this regard. A proper explanation needs to be provided. The Deputy Public Protector occupies a leadership position in the institution. Instead of making use of his expertise and his leadership abilities, he is being sent for training in procurement law.
The Public Protector responded the Deputy Public Protector is not on training. Rather he is overseeing the training of senior investigators on procurement law to ensure that quality reports are produced. He is a former lecturer and Mr McQuoid-Mason is assisting him to improve the overall quality of the institution.
The Chairperson was not convinced by the Public Protector’s response. There are a vast number of law professors and other academics who can provide such training. The Deputy Public Protector has other skills which should be properly utilised. His duty is not to run workshops. Additionally, the Public Protector has not answered when Mr Nyembe was appointed as the special advisor.
Ms Mathapo reiterated her concern that PPSA is suffering from institutional instability. PPSA has a staff component of 323. Of that 190 are core investigating staff. In addition, several resignations have occurred. Five senior investigators have resigned and one senior manager. In an important institution such as PPSA there are two critical positions: that of CFO and CEO. People are acting in both of those positions. How can this be called stability? In her view, this indicates the opposite conclusion – that the institution is suffering from a crisis of institutional instability. Only two items were mentioned in cutting down costs. That is insufficient. Treasury is suffering from fiscal constraints and is unlikely to give the R870 million requested. The Justice cluster has had their funding cut by R2 billion. A proper appraisal of which items PPSA can live without must be engaged with. Does the former spokesperson still enjoy the same benefits she used to enjoy in her former position?
Mr E Buthelezi (IFP) had a concern about the Deputy Public Protector. Is he sufficiently equipped to act in her position if she was absent? He does occupy a leadership position and should he be engaged in tasks such as training. What is the relationship like between herself and her Deputy? The court ruling in 2011 stated the Public Protector is not limited to investigating within the frame of the original complaint. This relates directly to the Estina matter as raised by Mr Horn. From his position, and given her responses from the previous meeting, it appears there is reluctance by her Office to investigate the role of politicians.
Mr Horn wanted to know the extent of SSA’s involvement in her Office. SSA had seconded a CFO to her Office, on her request, when she required a CFO. The security manager had not left but is currently been trained by SSA. There appears to be a possibility the SSA will operate the security system, which is an off the shelf system. Additionally, the SSA is involved in the vetting of candidates for senior positions. When the original interviews for the Public Protector were conducted by the Ad Hoc Committee, the SSA informed that Ad Hoc Committee that there no clarity on whether the Public Protector or her Deputy actually require full security clearance. The vetting in question involves vetting of supply chain management processes and a broad background check, not full-blown security clearance. Parliament and the Committee should be concerned about the perception that there is an over-involvement of the SSA in PPSA and the ability of the institution to operate subject only to the law and in a fully independent manner. Independence is eroded when an arm of government or the State is involved to this extent in her Office. Why, in every instance assistance is needed, the SSA is engaged as the first port of call? Why when a CFO was needed, the SSA, and not for example National Treasury, was approached to second an official to that position? Why in none of those instances was the DoJ not approached? If there is a possibility the SSA will run the security and case management of the Office, that must be questioned. That is not the role and function of the SSA which deals with the interception of information and, to put it bluntly, “spying on people”. There is no rational basis for the SSA to double up as a service provider to other state institutions. This is highly concerning. Parliament and the Committee, given the information received about the close involvement of the SSA in the PPSA, must seriously begin to consider whether the Office of the Public Protector is in fact the independent and impartial office that it is constitutionally mandated to be.
The Chairperson interjected. It is time for the Public Protector to come completely clean about her relationship and/or involvement with the SSA. This is not the first time this question has been asked and it has become a recurring theme. Now is the time for the Public Protector to put the matter to rest. Why is there an overreliance on the SSA by the Public Protector? What relationship does she have with the SSA? Does she work for the SSA currently or has she worked for them in the past? This raises serious negative perceptions about the Public Protector’s integrity and independence. This is the last time that these perceptions should have to be raised. Such perceptions erode public confidence in her Office.
The Public Protector responded to Ms Mathapo and stated there is stability within the institution. It is performing within its mandate. For the 2017/18 financial year, PPSA did not issue 34 reports. This continues to remain a challenge. PPSA is trying its utmost best to speedily resolve any backlog matters and not to engage in undue delay. PPSA can operate with its current structure, but one area for intervention is to realign the compensation of staff. Administrative staff were subjected to a job evaluation, some were upgraded, and others were not upgraded, with an additional R1.7 million in expenditure. The case management system cannot be compromised on. On litigation costs, this requires not opposing any matter, even where such matters affect the constitutional mandate of the institution. Security improvements would have to be compromised on. Additional cuts would have to take place. Video conferencing with various senior managers would also assist in reducing travelling costs. The integrated telephone system cannot be compromised on. On subject matter aspects, various compromises can be implemented.
The Chairperson stated, on the record, that the Public Protector should not adopt a blanket rule of not opposing any matters. Rather, there should be a constructive engagement in the spirit of supporting constitutional democracy. It was stressed the Committee was not attempting to interfere in her work or dictate to her how she must do her work.
The Public Protector responded that the spike in litigation only occurred once her remedial action was declared to be binding.
The former spokesperson’s terms and conditions continue to remain the same. She has been seconded to the communications division.
In response to Mr Buthelezi, the Deputy Public Protector had been delegated certain powers when she had already arrived. This included dispute resolution and service delivery. On her arrival, she delegated a number of those powers to Executive Managers which are also competent to perform those tasks. The Deputy Public Protector was not delegated several complex matters, even before her arrival. Due to challenges related to the quality of her reports, it was decided that there was a need to develop a new template for reports, which was discussed at the internal think tank. Many reports were delayed, not necessarily because of a lack of cooperation by the institution concerned, but because investigators are not trained in the writing of quality reports. A decision was taken to train investigators on how to write their own reports which would be of sufficient quality to withstand court scrutiny. The Deputy Public Protector does not occupy an administrative position such as herself. He is overseeing the training by the service provider on procurement law. As he is a qualified lawyer he can also provide advice on legal issues and principles. If she is not present, then the Deputy Public Protector can only act on matters on which he has delegated authority. In her view, the relationship between herself and the Deputy Public Protector is a sound one. On the Vrede matter, the Public Protector repeated her response that the report was already ripe for publication when she assumed office in 2015. As indicated, a new file would be opened to investigate the role of politicians in the matter and the impact of the project on the ultimate beneficiaries.
The Chairperson stated that specific timeframes on the involvement of politicians in the Vrede matter must be provided. A situation cannot be permitted when integrity of the government of Mandela is called into question.
The Public Protector responded that an indication of the timeframes would be provided to the Chairperson by the end of April.
On the role of the SSA in the Office of the Public Protector, Adv Mkhwebane relied that the SSA is an institution created by the Constitution. It is an institution created to assist the country on security matters. She had worked for SSA for three months and therefore was aware that SSA had additional capacity which could be utilised. The Public Protector Act permits her to make use of the SSA in providing additional capacity to PPSA. She had written to Treasury requesting a CFO. Treasury was approached first and it stated that due to capacity constraints, it could not second a CFO. It was only then that SSA was approached to provide a CFO. The security manager is required to implement the management of security information systems. It is the core mandate of SSA to ensure that all systems utilised in government are secure. SSA is also training him on which information should be classified. The system by SSA is provided because of the capacity of SSA. While SSA is not a delivery orientated system, capacity from institutions, such as SITA which has network specialists, can provide assistance to PPSA. Currently, SITA is responsible for managing the Microsoft licence system. Whatever institution can assist will be engaged. The DoJ is currently being engaged in this way as well. On the vetting and supply chain checks, financial managers and senior managers need to be properly vetted and provided with proper security clearance. It is imperative that investigators and senior managers are people of utmost integrity. The Public Protector has been open about her previous employment with SSA. The DA has accused her of been a spy as a result. She only worked for the SSA for three months and has worked for other institutions such as Home Affairs. The SSA is a constitutional institution and therefore there is no reason why their excess capacity should not be used when it is available. PPSA does not only work with the SSA, but rather works with all departments which are available to assist, inclusive of the DoJ. The SSA has no active or direct role in investigations. All investigations are conducted within the limits of the law.
The Chairperson stated he did not want to be accused of parliamentary overreach. It would be fair to say that the current lack of capacity within her Office would require her to immediately recall the Deputy Public Protector to her Office to provide capacity, and not be engaged in matters such as providing workshops on procurement law? There are many professors who can volunteer to be training officers. The Deputy Public Protector should not be a training officer. Leaders of government should not live under a cloud of negative perception. PPSA must be proactive and active in supporting constitutional democracy and strengthening confidence in the government of Mandela and Sisulu. He advised that the Deputy Public Protector should be recalled immediately to provide capacity and not act as a training officer. Why is it necessary to have a special advisor? When was he appointed? Why could the Deputy Public Protector not provide the advice currently been provided by the special advisor?
The Public Protector responded the special advisor was appointed at the beginning of April 2018. The Deputy Public Protector is not a training officer. He oversees the work of the Office.
The Chairperson remarked that oversight of the PPSA is the duty of Parliament. The Committee should provide assistance and capacity, especially given the concerns that the Public Protector has raised about a lack of capacity within the institution. PPSA must function independently, proactively and well in delivering services to the people of the country. He said the questions raised by the Committee should be addressed as a matter of urgency in writing. Those written responses should also include timeframes to ensure the Committee can properly hold the Public Protector to those targets.
The meeting was adjourned.
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