Public Protector South Africa 2019/20 Annual Performance Plan

This premium content has been made freely available

Justice and Correctional Services

10 July 2019
Chairperson: Mr G Magwanishe (ANC)
Share this page:

Meeting Summary

Government Departments & Entities 2019/20 Annual Performance Plan (APP) 

https://www.youtube.com/watch?v=I8FOkSk8RZ0

Before presenting the 2019/20 Annual Performance Plan and budget, the Public Protector raised a number of issues that were troubling her, stating that she wished to take the new Committee into her confidence. She informed the Committee that she was independent and subject only to the Constitution and the Rule of Law. She noted the unfair criticism that she had been subjected to, such as in the case of the Economic Freedom Fighters and Others versus Speaker of the National Assembly and Others, where the Constitutional Court held that the Public Protector’s powers were very wide and left no lever of government power above scrutiny, coincidental “embarrassment” and censure. The PP presented three slides on “Unfair criticism”.

Recent history had taught the Public Protector never to assume that her powers were understood by all and sundry, most especially those she expected to be conversant with the constitutional and legislative framework regulating her work. A senior Member of the Executive had recently accused her Office of venturing into political territory when investigating a complaint lodged in terms of the Executive Members’ Ethics Act. Where High Court decisions were successfully appealed at the Supreme Court of Appeal or the Constitutional Court, the High Courts were never accused of many things she had been criticised for. Of late, there had been a debate on whether the Public Protector had the power to investigate alleged money laundering. Her view was that she could invoke the Prevention and Combating of Corrupt Activities Act to deal with that kind case.

The targets in the Annual Performance Plan included the finalisation of 7 000 cases per annum and the finalisation and publication of 56 investigative reports by 31 March 2020. The Office of the Public Protector planned to identify and investigate two systemic investigations or interventions and hold ten dialogues with organs of state on systemic challenges by 31 March 2020.

A budget of R321.4 million had been allocated for 2019/20 but with interest from investments, the budget came to R322.6 million. Most of the budget was spent on salaries at R257 million, which left R62.5 million for Goods and Services, of which R56.7 million was allocated to contractual obligations. R2.35 million had been allocated to attainment of the Annual Performance Plan goals.

Members questioned the Public Protector extensively. Members asked whether the Office of the Public Protector was influenced by the political dynamics in the country. Did the Office of the Public Protector offer witness protection, or did it engage with the police or any other institution to that effect? What was the caseload per investigator and how many investigators were there? The Public Protector had named and shamed 38 institutions for failing to comply with her recommendations. Had she taken the matter up with the Minister, the President, or the MEC or Premier in the case of provinces, as per Rule 44?

Members were interested in the appeal to the Constitutional Court in the matter of the personal cost order against the Public Protector. Who was funding that litigation? With which state institutions was the Public Protector having discussions and what were the outcomes that she expected to attain? How many of the review applications were being defended by the Public Protector? Was there any progress in the Estina Dairy Farm matter, especially in regard to the involvement of politicians? Why had the Public Protector not made use of her own powers of subpoena or search and seizure in the SARS/Gordhan case rather than make an adverse finding based on a lack of information? Had the Public Protector forwarded the Gordhan/SARS matter to the National Prosecuting Authority or other investigative authorities?

Members were concerned about 2019/20 budgeting. Was the R10 million allocated for litigation sufficient and should the Public Protector not be cautious in the manner in which she approached her reports, bearing in mind that there was a very good prospect of reviews and the legal costs associated with reviews? How did the Public Protector determine which cases to litigate and who was funding her litigation? Were there still outstanding invoices in the current financial year? Had the technical insolvency been resolved? What was the status and amount of the request to National Treasury for additional funding? One Member accused some MPs as being motivated by constitutional delinquency to undermine the Office of the Public Protector. He asked who in National Treasury was refusing her money and spoke extensively in praise of the Public Protector.

 

Meeting report

Opening remarks
The Chairperson welcomed the Public Protector and her team. As some Members of the Committee were new, the Chairperson asked everyone to introduce themselves. Mr X Nqola (ANC), when introducing himself, reminded the Committee that the discussion was limited to questions about the Annual Performance Plan (APP). Other matters could be addressed at another time.

Presentation by the Public Protector
Adv Busisiwe Mkhwebane introduced her team: Deputy Public Protector Adv Kevin Malunga, CEO Mr Vussy Mahlangu, CFO Yalekile Lesibane. She congratulated the Chairperson and Committee Members who had been elected to serve. Her Office reported to the National Assembly in terms of section 181 of the Constitution.

The Public Protector informed the Committee that she was independent and subject only to the Constitution and the Rule of Law. The Public Protector noted the unfair criticism that she had been subjected to. One instance was the case of the Economic Freedom Fighters and Others versus Speaker of the National Assembly and Others where the Constitutional Court held that the Public Protector’s powers were very wide and left no lever of government power above scrutiny, coincidental “embarrassment” and censure.

Addressing misunderstandings of her mandate, the Public Protector said that recent history had taught her never to assume that her powers were understood by all and sundry, most especially those she expected to be conversant with the constitutional and legislative framework regulating the work of the Public Protector. As an example, a senior Member of the Executive had recently accused her Office of venturing into political territory when investigating a complaint lodged in terms of the Executive Members’ Ethics Act. The Member of the Executive in question appeared to be under the impression that her Office just woke up one morning and decided to pursue the subject of the investigation when, in fact, her Office did not target people. Instead, she had received a complaint from a Member of Parliament and she had merely done all that the law required and empowered her to do.

The Public Protector (PP) stated that there are certain quarters in society that seemed to believe that to take a report on review was an indication of ineptitude on the part of the author of the report concerned. It got worse if that report was eventually reviewed and set aside by the courts. Of late, there had been a debate on whether the PP had the power to investigate alleged money laundering in relation to one of the matters before her. Her view was that she could invoke the Prevention and Combating of Corrupt Activities Act to deal with that kind of case.

She noted that where High Court decisions were appealed successfully at the Supreme Court of Appeal or the Constitutional Court, she never heard the High Courts being accused of a lot of things she had been criticised for.

The Public Protector listed the achievements of her Office to date, including 50 000 complainants, 95% of which were bread and butter matters affecting the people at the grassroots and they had finalised nearly 35 000 of those matters. The rest have been taken on review and she has successfully defended two.

Annual Performance Plan
The CEO, Mr Vussy Mahlangu, presented the APP, referring to the goals set by the Office of the Public Protector (OPP) for 2019/20. The targets included the finalisation of 7 000 cases per annum and the finalisation and publication of 56 investigation reports by 31 March 2020. In addressing backlogs, the OPP would finalise 100% of cases that were two years and older cases by 31 March 2020. The OPP would also identify and investigate two systemic investigations or interventions and hold ten dialogues with organs of state on systemic challenges by 31 March 2020. Another goal was to begin to secure state-owned office accommodation for the OPP at a provincial and regional level.

Budget 2019/20
Ms Yalekile Lesibane, CFO, presented the budget. The OPP had received a budget of R321.4 million for 2019/20 but with interest from investments, the budget came to R322.6 million. Most of the budget was spent on salaries at R257 million, which left R62.5 million for Goods and Services, of which R56.7 million was allocated to contractual obligations. R2.35 million had been allocated to attainment of the APP goals.

The CFO raised a number of strategic challenges:
- Insufficient funding for 2019/20 financial year.
- Capacity shortages, i.e. too few investigators and a lack of diverse skills such as forensic, actuarial, engineering, quantity surveying.
- Security, in that there were no security measures in provincial and regional offices.

To address the challenges, the OPP had devised strategic interventions:
- A Value Proposition (Budget Bid) had been formulated and presented to National Treasury to address the shortfall in budget.
- The OPP would be outsourcing, signing Memoranda of Understanding and Service Level Agreements with other state institutions to leverage on synergies and innovations such as assisting organs of state to establish internal complaints handling mechanisms.
- The OPP would leverage state resources by attempting to secure office accommodation, specifically with the Department of Justice and Constitutional Development (DoJ&CD), in order to utilise the same physical security services.

The CFO informed the Committee that the OPP had made a request for additional funding for the 2019 MTEF for the filling of critical positions, professional fees and security services and for a gratuity for the Deputy Public Protector whose term of office came to an end later in the year. The request totalled R40.2 million in 2019/20. She advised the Committee that the service contract of the Deputy did not make provision for a gratuity but a special request was being made to the Committee and National Treasury.

Discussion
Mr X Nqola (ANC) welcomed the presentation and noted that, in the overview, the Public Protector had stated that her institution operated without interference by any person or any organ of state. In the overview, there had been an allegation that a Member, or some Members of the Executive, alleged that the OPP had been influenced by the politics of the day. However, the overview did not provide a true reflection of what was said to have been alleged in the report. For the benefit of the Committee and everyone present, and the public, he asked the question in bold capital letters: did the OPP get influenced by the political dynamics of South Africa to take decisions, or to conduct itself in the charge of its own mandate?

The presentation stated that there was a commitment to whistleblower reports. Mr Nqola asked if the OPP offered witness protection, or if the OPP engaged with the police or any other institution to that effect?

Lastly, Mr Nqola said that the Public Protector had mentioned almost 30 cases had been taken on review but against what number of cases received by her office, was the 30 cases? Should someone not be concerned that 30 cases taken on review suggested doubt and a lack of confidence in the Public Protector’s Office?

Ms G Breytenbach (DA) was interested in the appeal to the Constitutional Court in the matter of the personal cost order against the Public Protector.  Who was funding that litigation? The Public Protector had released a redacted report. Why had the PP released the report in a redacted form and in terms of which legislation was it redacted? In 2018/19, was the Public Protector able to pay the contracted commitments or had she received additional funding from DoJ&CD, and if so, how much? Could the Public Protector provide details of the strategy to obtain a clean audit in 20/21?

Ms Breytenbach stated that she was aware of the “difficulties” surrounding the security clearance of the Deputy Public Protector. She requested details on whether he was gainfully employed. She assumed that many reports in the PPO did not require top secret clearance. Was he working on those, and if not, why not? Why had the indicator for the percentage follow-ups been removed? With which state institutions was the PP having discussions and what were the outcomes that the Public Protector expected to attain there?

The Public Service Association had raised concerns about shop stewards in the OPP being victimised and investigated by State Security and by attorneys hired by the OPP, as well as surveillance of telephone calls, cell phones and laptops. Ms Breytenbach requested more detail on the matter. Had the issues been resolved? How many of the Review applications were being defended by the PP?

Mr W Horn (DA) asked about the Estina matter or the Vrede Dairy matter. On 17 April 2018, the Public Protector had presented the 2018/19 APP to the previous Committee and, based on the dissatisfaction of the Committee about the way that the investigation into the Estina Dairy matter had been handled, she had indicated that she was re-opening the investigation with a two-fold focus, i.e. interviewing the supposed beneficiaries of the project and to look into the involvement of officials in the drafting of the plan and the sign-off. A year later there had public hearings in Vrede for supposed beneficiaries. Was there any progress, especially in regard to the involvement of politicians?

Mr Horn asked about the PP report on the Estina Dairy Farm Project that had been reviewed by the North Gauteng High Court and set aside as it was found it unconstitutional. He noted that the Public Protector had, in public, stated that she fundamentally disagreed and was seeking direct access to the Constitutional Court to address what she considered the incorrect findings of the North Gauteng High Court. Had that application to the Constitutional Court happened?

On page 9 of the presentation, the Public Protector had referred to the public debate on the information that there was apparently an investigation into possible money laundering on the part of the President. Mr Horn asked for clarity about the Public Protector’s powers in terms of POCCA (Prevention and Combating of Corrupt Activities Act) as he understood that there had to be an allegation of corrupt activities and it had to relate to public money. The complaint had dealt with private money so he requested an explanation as to how it could be in her sphere. Even though, as he was aware, the Public Protector could choose to investigate a matter, there had to be at least an allegation of a possible breach of POCCA.

Mr Horn referred to the last high profile report, the one about Mr Gordhan and the rogue unit at SARS. The Public Protector stated that on the security surveillance/intelligence of SARS, she had made specific enquiries and SARS had not, or had refused to, come back to her and, in a circular manner, she argued that no answer meant that there was something to hide which sustained findings that the unit must have been a surveillance unit. When Mr Horn read the Public Protector Act, it was quite clear that there were very specific powers of subpoena available to the Public Protector when she was in need of an explanation or evidence of any nature. Section 7(a) allowed the Public Protector to apply for a warrant for search and seizure to find what she was looking for. Why had she not made use of her own powers rather than make an adverse finding based on a lack of information in a report of national importance?

Mr J Selfe (DA) asked about litigation. There were a great number of applications for review of reports by the Public Protector. Ms Breytenbach had asked how many were being reviewed. He asked how much money had been allocated for the cost of the legal challenges. One challenge would be that ofthe so-called rogue unit in SARS and Minister Gordhan. As South African taxpayers’ money would be used to defend the report, Mr Selfe asked how much had been set aside for litigation and who the Senior Counsel would be appearing for the Public Protector.

Mr S Swart (ACDP) noted that the Public Protector had raised a number of issues, one of which was that the Deputy Public Protector was leaving. Mr Swart’s concern was that the Committee was not aware of the ending of the Deputy Public Protector’s contract, or the lack of provision for a gratuity.

Mr Swart noted that the Public Protector Report on Minister Gordhan and the SARS unit differed from other reports because it contained a specific instruction that remedial action could not be ignored whilst a court considered any review of that report. Why was it deemed necessary to bring that finding into that report when it was not contained in any other report?

Mr Swart reminded the Public Protector that in the previous Committee, he had continually expressed his concern that once the reports were binding, there would be large numbers of reviews with concomitant legal costs. In the documentation, he noted that the budget for legal fees was steadily declining: R20 million in 2017/18, R15 million in 2018/19 and R10 million 2019/20. Was that sufficient and should she not be cautious in the manner in which she approached her reports, bearing in mind that there was a very good prospect of reviews and the legal costs associated with reviews?

Bearing in mind that there was limited funding, Mr Swart asked how the Public Protector determined which cases to litigate and who was funding her litigation? She was litigating against Ms Breytenbach and Mr Horn in a defamation case. Who was funding the litigation? Was it the OPP?

Mr T Mulaudzi (EFF) asked about the assistance given by the Department. In 2017/18, the Public Protector requested assistance to pay outstanding invoices of about R15 million. Were there still outstanding invoices in the current financial year?

Mr Mulaudzi noted that the Public Protector had named and shamed 38 institutions for failing to comply with her recommendations. Had she taken the matter up with the Minister, the President, or the MEC or Premier in the case of provinces as per Rule 44? He asked about the technical insolvency in 2017/18 and 2018/19 as declared by the Auditor General in his audit report. Had the Public Protector paid all the contractors? At what stage was the development of the pillars of Vision 2023?

Lastly, Mr Mulaudzi addressed the matter relating to Minister Gordhan. Had the Public Protector forwarded the matter to the National Prosecuting Authority or other investigative authorities as she had indicated she would because what was happening at SARS was illegal?

Mr Q Dyantyi (ANC) said he was confused on receiving the presentation the previous day as the Public Protector had done a lot of good work in the APP booklet about her organisational environment and explaining why her Office needed additional funding but her presentation had confused him because it gave him two sets of Public Protectors. The presentation was that of a Public Protector who was very angry and aggrieved who was raising issues that did not belong in that Committee because she was responding to allegations that had been made elsewhere or which she called attacks on her, be it an Executive Member or someone else. She should issue a very good, strong statement but not bring those issues to the Committee. The Committee had not asked for that. The request was for the APP and plans going forward so that the Committee could see that it was a credible plan. Six or seven of the slides were simply her “off-loading” and that was irrelevant. If the Committee responded to the things she had raised, Members would have to ask who the nameless people in her comments were and he did not want to go there.

Mr Dyantyi turned his attention to the APP. The Public Protector had received 50 000 complaints in the two years of her tenure and 95% were bread and butter issues, meaning that 12 500 bread and butter ones had not been touched at all even though they were early release reports – the easy issues to deal with. He could not see that as a success as it stood.

Mr Dyantyi noted that the Public Protector spoke of 100 investigation reports completed over two and a half years. The APP said that 56 investigation reports would be completed on an annual basis. Out of the 56 reports, how many had she done in the first quarter? On page 2 and 3 of the APP was the backlog of cases. Could the Public Protector provide a breakdown of old and new cases. A list could be submitted in writing, and should include an age analysis, broken down per issue and geographic area. He noted that 183 backlog cases had not been touched at all.

He asked what the basis was for targeting 56 cases when the current number of cases finalised per annum was 7 000 but only 100 reports had been finalised over two and a half years. How did the OPP decide on a target of 56 reports completed in 2019/20?

Mr Dyantyi was curious about the outreach clinics. Vision 2023 spoke about grassroots but both in the APP and the budget, there was very little about grassroots. There were 208 clinics, broken down to 52 per quarter. How many of those 52 clinics had the Public Protector conducted in the first quarter of 2019/20?

Mr Dyantyi stated that there were a lot of juicy things to be discussed with the Public Protector but he was trying to focus only on the plans of the OPP and how credible they were. The Committee would meet again to discuss the juicy bits. The Public Protector had mentioned the caseload of investigators. What was the caseload per investigator and how many investigators were there in the OPP?

Moving on to the Budget, Mr Dyantyi noted that James Selfe’s question had been answered in the budget. As indicated, the previous year, OPP utilised R15 million on legal fees. The budget for legal fees for the current and future two years was R10 million per annum. That was where the gratuity for the Deputy Public Protector could be found. The budget for legal fees seemed exorbitant but it had to do with the kind of reports and the quality of her reports. The Public Protector complained in her presentation that her reports were taken on review and then they were set aside but the reason that they were set aside had to do with the quality of the reports and whether proper legal advice had been obtained before the reports were released. The reports had to withstand scrutiny. The budget for legal fees was a budget for incompetence. Mr Dyantyi stated that he was deliberately using the word ‘incompetence’ as based on the facts and evidence before the Committee, he believed that he could venture that statement.

Continuing with the budget, Mr Dyantyi asked about the additional budget that the OPP had presented to National Treasury. What was status of the request to National Treasury? Had there been any progress on that request?

Turning back to the actual APP document, Mr Dyantyi was concerned about the empty spaces in the APP (on page 37). It was an incomplete APP as no targets had been set for a number of the items, there was no programme and no plan in many cases but the OPP was asking the Committee for more funds, saying that the Public Protector was under-funded. He was not convinced or persuaded that the Public Protector had planned how she would spend the funds. He had many more questions for the Public Protector but he assumed that he should stop there.

The Chairperson assured him that there would be further meetings with the Public Protector.

Dr M Ndlozi (EFF) said that the Committee had been convened to be appraised of future plans of the OPP. He found it very ridiculous and a serious abuse of power by Members of Parliament to demand un-redacted reports when the rest of South Africa had to approach legal institutions to get the detail of her reports. Imagine what would happen to South Africa’s democracy if the power of Parliamentarians was abused like those Members were doing. Judges also got money from the Committee but did they engage in that ridiculous exercise of saying, “Explain this ruling; explain that ruling. Why use this sentence when you did not use it before?” It was a conflict of interest!

Dr Ndlozi stated angrily that those MPs were motivated by constitutional delinquency to undermine the Office of the Public Protector. If they had a problem with a report by the Public Protector, there was a process recommended about that, a legal process! It was an abuse of power, power that the people of South Africa had given! Now the Public Protector had to come to the Committee and explain the details of her reports, many of which were before the courts. It was wrong! Those were colleagues of Mr Pravin Gordhan and Mr Gwede Mantashe, who, by the way, was the Executive Member being spoken about. It was not a secret that there were Executive Members who went out there and said that the Public Protector was being political because she was investigating Members of the Executive, even though it was her job!

Dr Ndlozi said that it was misleading when an MP said that the Public Protector spent seven pages on her anger. It was an important preamble.

On a point of order, Mr Dyantyi asked the Chairperson if Members were going to get an opportunity to respond to the misperception that Dr Ndlozi was creating quite deliberately.

Dr Ndlozi stated that it was not a point of order.

Dr Ndlozi and Mr Dyantyi engaged in a heated dialogue.

The Chairperson asked Mr Dyantyi to make his point.

Mr Dyantyi stated that he wanted to have an opportunity as the Members were being misinterpreted by Dr Ndlozi in front of live television. It was important to correct these when he was done as he was out of sync.

The Chairperson asked Dr Ndlozi to ask his question and make his comments. However, contrary to most of the issues that he was raising, Parliament had the right to hold the Public Protector to account. The Public Protector would be allowed to clarify and to answer the Members’ questions. He stated that the regime that governed judges was different from the regime that governed the Public Protector.

Dr Ndlozi said that the Chairperson was debating with him. He was asking the Chairperson to be above board. If a person raised a point of order and it was not a point of order, the Chairperson should tell him so. He had to be above board if he was going to earn the respect of all Members. If he, Dr Ndlozi, were out of order, he would retract. Secondly, he told the Chairperson that he should not suppress debate. He could not tell Dr Ndlozi what he should and should not say. He had the right to speak and what the other Members were doing was wrong. The Public Protector had a right to respond. He did not have questions. Dr Ndlozi withdrew his statement and said that he did have a question for the Public Protector.

Dr Ndlozi stated that it was wrong and dishonourable for people to come to the Committee and subject the Public Protector’s report to a review. It was wrong! And that was what they were doing. “Explain yourself in terms of this. Why did you not take this remedial action? Blah! Blah! Blah!” It was wrong! They should go to court if they wished to review a report. Adv Mkhwebane did not have to respond to things that had to deal with the internal detail of her reports to the Members. It was about the function of the OPP. He found it dangerous as a person would be investigated in the Committee instead of going to court. People would send questions to Members, saying: “Ask her about this. Ask her about the remedial action”. It was wrong and the Members had to be told that.

Dr Ndlozi recalled that one of the Members had spoken about her “rant” of anger. It was not true. He would tweet the seven pages to the public. The Public Protector was not ranting but had presented legislation and court decisions. She was making a comment and a good preamble which served as a motivation for the funds that she needed. There was no rant. There was only one paragraph speaking about that Executive Member who had said that the Public Protector had descended into the political terrain. He agreed that that was wrong. A Member of Parliament had lodged the complaint and she was investigating. If the President of the country had done anything wrong, they should give her the space to do her work.

Dr Ndlozi said that the gentleman who had spoken about finances, had spoken about the request made to National Treasury. That was where the Members came in. Who had he spoken to in National Treasury? Who was refusing him money? How much was the funding request? If he could furnish those details, Dr Ndlozi would go to Treasury and those people would have to come. The Public Protector should submit the detail and all the correspondence. That the OPP was not under security was a big problem - look at that, that was basic, whoever was the incumbent. The Public Protector was requesting security for her offices. Why would one not give her that? The Public Protector said that 33 positions had not been filled due to funding. Why would one not give her that? Those were reasonable demands. He wanted to know who she had spoken to in Treasury and for how much she had asked so that he could follow it up.

Dr Ndlozi declared that people who wanted to speak to the incompetence of that office had to follow the Constitution. That day the Committee was talking about plans and the tabled budget and requirements. If one wanted to debate the incompetence of the Public Protector, section 194 was open to one. It was not the day, nor the platform. He reiterated, and he wanted someone to respond to him, that it was wrong and an abuse of power to come here and subject the Public Protector’s Office to explain itself about reports that it had released about their colleagues in Parliament.

Mr Dyantji said that he had a correction. He asked if he could read it. He was not sure if Dr Ndlozi had taken time to read it.

The Chairperson told Mr Dyantyi that he wanted to help him. He suggested that the Public Protector be asked to respond to the issues and then the Committee could have a policy debate after the business of the day had been completed. He was sure that there were Members who wanted to address the issues, but the Public Protector should first respond as that was what she had come there for.

Response by Public Protector
The Public Protector indicated that her staff would also respond to questions. In response to the questions by Mr Nqola and Mr Dyantyi, the Public Protector said that it was her first meeting with the Committee and she was trying to reflect on the challenges and to bring Members into the confidence of the Public Protector, showing the challenges that she was facing. She was performing her duties in terms of the Constitution and yet her office found itself subjected to the challenges. She had mentioned which section in the Constitution stated that members of the public or any state institution were obligated to assist the Public Protector. On the complaint that had been lodged in terms of the Executive Members Ethics Act, it had involved the Executive and, unfortunately, the complaints had been lodged by MPs from other political parties. The Public Protector operated in a political space but, as an Office, it was never influenced by what was happening. She stated that her Office checked the facts, what happened and which prescripts were applicable, especially the prescripts about what the law was saying and what the Constitution was saying. The findings were surely based on that.

On the whistle blower protection, the Public Protector replied that she would allow the Deputy Public Protector to add information about what the victims were subjected to. That case was investigated in terms of the Constitution and it was about the responsibility of the police to protect all citizens and how whistle blowers were assisting in curbing crime. Witness protection was the responsibility of the DoJ&CD, especially if there was an ongoing court case.

The Public Protector replied about her 30 reports which were on review. Seven reports have been set aside on grounds of irrationality and unreasonableness. Only two of those were issued by her while the rest predate her incumbency. The OPP hardly had a problem of report review applications until the Constitutional Court ruling in March 2016, which stated the Public Protector’s remedial action is binding. Since then, the number of review applications has been on an upward trajectory. When she assumed office, there were already 16 such review applications. To date up to 30 of the reports she had issued have been taken on review. It was within the rights of people to take a report on review as the law allowed them to take the matters on review.

The Public Protector informed Ms Breytenbach that in the court matter, the OPP was funding the litigation. Ms Breytenbach should read section 5(3) of the Public Protector Act and understand that when the Public Protector was defending her duties, or any ombudsman in terms of the UN principles on ombudsmen, if she performed her work in good faith, there was immunity from personal litigation. Monitoring had been removed from the Action Plan as the Constitution was very clear about the responsibilities of the Public Protector: investigate, report and issue a remedial action. She had engaged the Speaker to assist her Office in the oversight of that responsibility. OPP was still following up internally but it was not a core responsibility.

The Public Protector responded to the question about what the OPP expected from dialogue. It was strengthening constitutional democracy. When OPP received a complaint, it was analysed. When lot of complaints were about Home Affairs or the Compensation Fund, the Public Protector had to dialogue with them, or if it was a rural municipality, the OPP needed to call them and work with them in eliminating the systemic challenges. Normally one would find that a lot of the complaints were about delays in processing ID documents or processing an injury on duty. OPP assisted those institutions in resolving systemic challenges. It was her duty to promote good governance and to eliminate maladministration. When there was maladministration, corruption thrived.

On OPP union members being victimised, the Public Protector replied that there was no unlawful surveillance but the CEO would respond to the question. On the question of how many matters the Public Protector had defended, she would respond in writing.

The Public Protector explained to Mr Horn that the Estina Dairy Farm / Vrede matter was a new investigation, not a re-opening as the Members had asked for a case to be opened. The case had been opened in April 2018 and as it fell within Good Governance and Integrity, it could be expected to take 12 to 24 months to finalise. The investigation was at the end stage and the Public Protector had interviewed everyone. The Report would be ready by the end of August 2019.

The Public Protector confirmed that she had lodged an appeal against the North Gauteng High Court decision on the Estina Dairy Farm. At the time she had indicated that she would consider the option to appeal the High Court or apply for direct access to the Constitutional Court, which she had done. The judge suggested that she delay and await the decision but she could not do that because the Constitution guarantees the Public Protector the right to litigate.

The Public Protector stated that she could investigate corruption and that was why she was investigating the money laundering. If one read the Prevention and Combating of Corrupt Activities Act, one would know that it was a shared mandate. If there was criminal conduct, the OPP referred the matter to the police for investigation and criminal prosecution. Section 182(5) of the Constitution stated that if there were security concerns, the Public Protector could decide not to publish certain information and that was why she had issued a redacted report about the Intelligence equipment.

On the SARS matter, she stated that she had subpoenaed the records from the South African Revenue Service but there had been a lack of cooperation. In some cases, she had opened criminal cases for refusal to cooperate with the Public Protector and, in other cases, she had approached the court for a declaratory order, especially if it involved Members of the Executive who were not cooperating with the Public Protector. She could also source documents and information independently.

The Public Protector informed Mr Selfe that she would have to report in writing on the reports under review and how much had been allocated for the cost of the legal challenges. She had not yet appointed a Senior Counsel because her Office had not received any documentation about a challenge. However, the SARS remedial action could not be ignored. That fact about remedial action was included in all reports issued.

The Public Protector told Mr Mulaudzi that she had engaged with the previous Committee on the matter of name and shame at the time of the Venda Bank issue but, unfortunately, the Minister of Finance had taken the Public Protector on review. On the 2012 and 2016 Reports, her Office had written to the Speaker quoting section 55(2) because it was also the responsibility of Parliament to hold the Executive to account. The unfortunate part of it was that it would impact on the pensioners and it would be a long drawn-out process and there was no hope for the pensioners to whom her institution had been trying to give hope.

The Public Protector informed the Committee that Vision 2023 was almost complete. OPP had signed several MoUs with the Department of Justice and Correctional Services, Cooperative Governance and Traditional Affairs, the National Prosecuting Authority, the South African Local Government Association, and the Auditor-General but there were more MoUs to be signed. The CEO was working closely with the DoJ&CD DG because OPP officials would be using the offices of DoJ&CD in far-flung areas to receive more complaints. A key aspect was about broadening access and her Office had to work more closely with Justice

She stated that the previous year’s roadshow had encouraged people to lodge complaints with state institutions and OPP was encouraging institutions to address people’s complaints. When service delivery complaints by communities were not listened to, they ended up taking the law into their own hands. In the current year, the roadshow would be focussed on helping certain institutions to develop their own complaints mechanism. The process did not require additional funding. Her officials were not recommending an ombudsman as in the case of the Military Ombudsman. They were simply suggesting that the institutions set up an office and have an official who would receive the complaints and deal with them.

To ensure greater access to the Public Protector, her Office was conducting roadshows each year where the officials would take complaints, and she used national days to address people and engage with members of the public. The officials could take complaints or advise the members of the public.

The Public Protector told Mr Dyantji that she had already indicated that her opening was a part of reflecting with the Committee as there were many new Members and she had taken them into her confidence as those were issues in the public space. It was challenging to hear the Executive commenting in public about a constitutional institution where the Executive should have been assisting the Public Protector. It was a constitutional violation, especially where the person had taken an oath of office to assist the Public Protector.

She replied that she would have to check on the number of untouched cases as some might have come from the end of the previous year and it might be matters not yet processed or that OPP was still dealing with. She would have to get a proper breakdown of the 50 000 and the 12 500. The decision to target 56 reports was based on the previous year’s completion of 30 reports. OPP had improved and would be working innovatively and she would be using her hard powers because if there was no cooperation, the reports could not be completed. The Public Protector said that OPP would use the powers of search and seizure, although it had not used that power, to hasten the process so that OPP could comply with its service standards. She added that some files in the OPP had not been touched for three months. She now had a Chief Operating Officer, and the Deputy Public Protector was ensuring that files were attended to by conducting file inspection. But, she reminded the Committee that reports were written only in cases of systemic issues or where there was a need for remedial action to correct the redress. OPP had a backlog project and out of the 466, there were now only 183 cases.

The First Quarter 2019/20 report was available and her Office had achieved its targets as it had already issued 26 reports. When she had joined the institution, the outreach clinic programme had had a target of 815 but that was not structured in a proper way. The outreach officials had met one family and called it a “clinic”. Now a district municipality was a clinic. If each district was reached, OPP would meet its targets. For example, there were five districts in Eastern Cape and if each one was visited, the OPP would have accessed everyone. There was also a MoU with the Speaker in each province and when they had their public participation programmes, OPP would participate. In the past the outreach officials went to towns but the new approach enabled OPP officials to go to far-flung areas.

The Public Protector responded about caseloads, saying there were early resolution cases with a resolution period of six months. Service delivery complaints were dealt with within 12 months, and good governance cases took up to 24 months. The investigators dealing with early resolution cases and service delivery complaints dealt with up 50 files at a time. Those required investigators to write only one letter and phone the institution. The matters were quickly resolved. The investigators dealing with good governance cases had up to 20 files per investigator as it involved a lot of work. The international standard for complex good governance investigators was five cases per annum.

In response to the suggestion by Mr Dyantyi that the legal fees be used to pay a gratuity to the DDP, the Public Protector said that the reports were set aside, not because of the quality of the reports but it went back to the fact that any person had the right to take the Public Protector matter on review, especially after the 2016 Constitutional Court judgement. In the past very few cases were taken on review but the reason for review was that people did not agree with the Public Protector’s finding although she tried to avoid that as her Office would sit down with an institution and discuss the report before finalising it. The Public Protector had sat down with Minister Nzimande about the taxi recapitalisation matter. Her Office had even asked what action was possible to change the system. In another such case, OPP had sat down with the previous MEC for Health in KwaZulu-Natal, Dr Dhlomo. If her Office got cooperation, the Public Protector would sit with the institution or even a Minister, as she had done with former Minister Mbalula when she had taken him through the matter, showing him his violation and discussing a resolution with him. She tried to avoid being taken on review.

The Public Protector told Dr Ndlozi that she would supply the detailed information about who her Office had dealt with at National Treasury and she appreciated the support from Members on the budget and how her Office could be properly funded.

The CEO, Mr Mahlangu, replied on the budget that the General Election had affected the programme of the parliamentary committees and the matter of the budget should have been discussed earlier. The reality was that the OPP went through the same budget process as any other department or entity. The OPP had gone through the entire budget process and the budget had been scrutinised. It was clustered in the law, courts and prisons cluster. Every entity had made a bid but R1,2 million in 2019/20 and up to R2 million in 21/22 had been taken away from the Public Protector’s budget in the cluster process. He was mindful of the budget constraints in the country and so the Office had come up with austerity measures and cut where possible which was why the OPP was still solvent after paying its contractors. That did not mean that OPP did not need money going forward. It still needed the budget requested.

The CEO explained that, as a result of the budget cut, the OPP could not provide physical security in all the provinces and regional offices. That was the major issue that was putting not only personnel at risk, but also the assets of the organisation and the buildings.

He replied that the surveillance and victimisation of staff actually related to a former colleague who had been disgruntled and had left the organisation but was found to have confidential information. The OPP had investigated to find out how it was possible that he had that confidential information. During the investigation, it was found that a shop steward was supplying him with the information. OPP had used an independent external investigator from a firm of attorneys. The report pointed to the shop steward and when he was asked to give his side of the story, he felt that he was being victimised and he ran to the Public Servants Association (PSA), which had issued a report a month earlier. The Public Protector had demanded that the PSA retract the statement as there were unfounded allegations in the statement. There was a judicial process underway and he would report on the matter at the next meeting.

The CFO, Ms Lesibane, responded to the finance-related questions. In 2018/19 the OPP had been able to meet all contractual obligations once cost containment measures had been implemented. The OPP had only committed to what it had budgeted for and was able to pay the contractual obligations and other services contained in the budget. The OPP had received funding from DoJ&CD to pay the 2017/18 invoices that it had not been able to pay. The 2018/19 financial statements had been finalised at the end of May 2019 and the entity was out of technical insolvency status. The statements were being reviewed by the Auditor General and she was awaiting the audit report at the end of July when she would know if the Auditor General agreed with the entity about that.

The CFO explained that the clean audit strategy was a very broad strategy that was revised annually, depending on risks identified and how they were being mitigated, as well as other factors coming through from the internal audit process. The OPP was in the process of internalising the internal audit and was currently appointing three permanent employees. The outsourcing of the internal audit function had not been satisfactory. Other aspects in the strategy included Human Resources and IT. The audit target had been to reduce the number of findings by 50% from 2017/18 and the Auditor General would reveal at the end of July whether the entity had met the target or not.

The Deputy Public Protector, Adv Kevin Malunga, explained the functions of the DPP as raised by Ms Breytenbach and Mr Swart. He had received revised delegations. His powers were largely a delegation by the Public Protector and since April 2018, he had headed the backlog project, trying to cut down on the backlog in the system, although it was very difficult on a number of fronts. Ms Moloi, the Chief Operating Officer (COO) would clarify the numbers but the backlog had been reduced from 466 to 183 files. There were many problems in backlogs files. For example, an investigator trying to resolve a pension matter from the Ciskei would soon get stuck, but OPP was moving on the backlog project. As part of the project, he conducted regular file inspections at all Head Office investigation units to try and get to the bottom of why files did not move. The Free State website was a matter on which the officials had worked very hard to try and get it out.

Adv Malunga sat on Exco and other leadership structures. He was finalising the training in report writing skills to ensure that investigators across the country prepared quality reports that were litigation proof.

Adv Malunga was heading a collaboration with Human Rights Commission (HRC) on the Alexandra matter. The Public Protector was focusing on the alleged corruption while the HRC looked at the human rights issues. He was leading the collaboration with the HRC on the hostels in Glebelands where the situation was still very dire, despite the Public Protector’s report. The practical implementation remained problematic. He recommended that the Committee went to see some of the things themselves.

Whistleblowing remained a challenge. OPP had given input into the amendment of the Protected Disclosures Act but generally whistleblowers were still very vulnerable in SA. He personally often advised them to be anonymous because they lost their jobs, were killed or assaulted. There was not a framework in place to protect them enough. He suggested that Parliament as a whole should come to the party to assist on this. There was also the 38 entities that had been named and shamed. They simply resisted remedial action. He would be leaving in five months’ time so he had done his part. There had been no framework in terms of pension, and he had simply been operating at the pleasure of the Public Protector. That was something that needed to be addressed before his successor was appointed.

The Chairperson suggested that the Committee deal with the matter of the gratuity when DPP was not there.

Ms Moloi, COO, who had joined the team during the meeting, explained that the remedial action indicator had been removed from the APP for the obvious reasons. As the Public Protector had stated earlier, it was in the business plan. Not all the remedial actions were being challenged – it was only those who wanted to save face. The OPP accounted for all remedial actions and so had a database of naming and shaming those who had not implemented remedial action. In the past, the Public Protector had put in indicated targets case by case but she had found that in cases older than two years, people talked about prescription and consultations and in other cases the people had left. The purpose of the Public Protector was not just to find officials on the wrong side but also to ensure that the entity revised their policies. In the case of municipalities, officials moved from one municipality to another and still committed the same malpractices.

Ms Moloi explained to Members about the backlog project achievements. The cases were closed by a provincial manager or executive. As of February 2018, there was a backlog of 466 cases and by the end of the financial year, there were 283 cases. By the end of June 2019, there was a balance of 81 cases and of those cases, there were 45 draft reports that had been issued to the affected third parties and the Public Protector hoped to finalise those cases by end of July. There were 27 closing reports and a number of complaints settled through settlement agreements. She added that the DPP kept them busy 24/7.

She explained that a new backlog had started from 2019/20 but there was a dashboard that showed the age analysis, where the person stayed, etc. Certain cases that were similar were ring-fenced, such as delays in Home Affairs documentation, and the OPP would meet with the DG of Home Affairs to agree on remedial action for all the cases. The same approach was taken with government pension funds, City of Tshwane, etc. There were no cases older than two years and those were cases the investigators were dealing with.

Ms Moloi added that to date 24 clinics had been held but none had been held in Limpopo as the roadshow of the Public Protector always started in Limpopo in the first quarter of the financial year.                                 

Further discussion
The Chairperson informed Members that he would allow two follow-ups per Member.

Mr Mulaudzi stated that his follow-up related to a question he had asked about the Minister and his illegal activity at SARS. After the findings, did the Public Protector forward the findings for investigation as the Executive had been running it own parallel structures? That was tantamount to treason. He wanted the matter to be forwarded to the law enforcement authorities for the necessary steps to be taken as no one was above the law.

Dr Ndlozi asked about the security personnel that the Public Protector required. Was it a request for a contract or for direct hire? For the amount of money that the Office of the Public Protector was requesting, the PP should not go with a contract. The OPP should appoint internal security officers.

Dr Ndlozi added that the Committee should agree on the gratuity for the DPP because the people at the OPP were working very hard. He was very impressed with the OPP. To have done such an amount of work was amazing! He believed that the Committee should finalise the gratuity because the service of the Public Protector’s staff was admirable!

Mr Swart rose on a point of order. He understood the Chairperson to call for questions of clarity only.

The Chairperson told Dr Ndlozi that he would get an opportunity on another occasion to argue for a gratuity.

Mr Nqola said that he had not asked if the Public Protector findings could be taken on review. Rather he had referred to the number of those cases and asked if one would be correct to infer that there was a portion of society that felt that the work of the Public Protector was not done thoroughly and impartially.

Lastly, he asked if the Public Protector had brought some security in the form of Dr Ndlozi.

The Chairperson asked that Members did not contribute to the disruption of the meeting.

Mr Nqola apologised for his remark.

Mr Dyantji commented that, in the glare of the TV, some people played to the gallery. He could not leave the meeting without clarifying a particular point or the wrong impression would be created. The Public Protector Act provides that “nothing contained in the Act shall prohibit the discussion in Parliament of a matter being investigated or which has been investigated in terms of the Act by the Public Protector”. When Members raised matters in the meeting, they should not be regarded as encroaching on a particular investigation, or defending it. It was within the rights of Members to deal with those matters.

Mr Dyantji stated that he was looking forward to the detailed written responses to the questions that Members had asked. He understood that the Public Protector was not able to provide the answers in the meeting as she had not known that those questions would be asked. He was looking forward to engaging with the Public Protector on a number of issues.

The Public Protector informed Mr Mulaudzi that the Gordhan/SARS report had been referred to the National Director of Public Prosecutions and to the Commissioner of the South African Police Service to investigate any criminality in the matter. She informed Mr Nqola that she had dealt with both questions as asked by Mr Dyantyi. She had said that people had a right to take a report on review but that all reports issued underwent a quality control and even legal services checked that the reports were within the law and advised on previous review matters before the Public Protector signed the reports. She acknowledged Mr Dyantyi’s statement that Public Protector had to engage with Parliament on her activities and the accounting matters and she would appreciate engaging with the Committee.

The CEO stated that the security was physical guarding and would be contractual. The amount was big because society was in the Fourth Industrial Revolution which brought its own challenges and part of the security funding was for information security.

Closing remarks
The Chairperson noted that the Committee had to discuss the broader issue of private security companies guarding government buildings. Some of them might not even be vetted.

The Chairperson stated that the documents requested from the Public Protector included the breakdown of the 50 000 cases, the age analysis and geographic area of those cases, the cases to be defended, and the additional funding request to National Treasury. The Committee would discuss the gratuity of the DPP as soon as possible.

The Chairperson thanked the Public Protector. He noted that sometimes it got hot in the environment. The Committee always enjoyed interaction with its entities and sometimes Members were robust, but that was part of the oversight, as long as long as they were within the law.

He explained that, in the Sixth Parliament, oversight would be enhanced and as a result, the Committee would be dividing itself into sub-committees so that the Committee could balance its legislative work with its oversight obligations. As part of oversight, the Committee would be going over the issues raised by the entities. Most of the entities had budgetary challenges. Where the Committee could lend a hand, it would do so to ensure that the work of the entities was enhanced. The Committee would continue its engagement with institutions and where an institution could not provide answers, a written response would be required.

The Chairperson thanked the Public Protector and noted that the Committee was happy that the OPP had moved from being insolvent to being solvent. It was a big achievement. The Committee had been extremely worried. The Committee would want to engage on Vision 2023. It was essential to have a clean audit as one could not investigate other entities for maladministration if one did not have a clean audit.

The Chairperson thanked the Members for restraining themselves, even those who had wanted to jump on the table.

The meeting was adjourned.

 

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: