The Office of the Public Protector briefed the Portfolio Committee on its 2018/19 Annual Report and provided updates on current cases of concern to the Committee.
The Public Protector informed the Committee that her Office had been at the receiving end of a blistering attack from senior Members of the Executive arm of government who were also Members of Parliament. Unsubstantiated accusations that she was beholden to a faction of the governing party had largely underpinned these attacks. She had reported those attacks to the Speaker. Highlights of 2018/19 were the finalisation of 30 formal investigation reports and ten systemic investigations and her election as President of the African Ombudsman and Mediators Association (AOMA), which was an umbrella body of Public Protector-type institutions in the continent.
14 147 cases were handled in the year to 31 March 2019 and 8 717 new cases had been received. 9 912 cases were finalised. The Office had had a deficit of R22.8 million in its restated figures for 2017/18 but the accumulated deficit had been reduced to R3.5 million at the end of the 2018/19 financial year. The PPSA had an unqualified audit opinion with material misstatements. The Auditor-General’s Report indicated two material findings, one of which was the fact that 28% of the suppliers had not been paid within 30 days. The Auditor-General’s had determined the cause to be a lack of effective monitoring and reporting for the first few months in the financial year. Material adjustments to the Annual Financial Statement had been submitted. The PPSA requested additional funding of R110.898 million for the funding of critical positions, professional fees and security for the next Medium-Term Expenditure Framework.
The Deputy Public Protector made his farewell comments after seven years in the post. He stated that he was leaving an institution that was stronger and more well-known by the public than the one he had joined. He expressed concern that Parliament was not holding the Executive accountable for the various infringements constantly reported to the Public Protector. The Public Protector had done very well in taking the PPSA to the grassroots and it was there that he had found a trust deficit in the government as contracts were frequently awarded to people who could not do the job and simply ate the money or people were appointed who were not fit for task.
Members asked how much progress had been made with the electronic case management system which would assist with the management and reporting of the cases and investigations. The non-payment of invoices timeously was an issue picked up by the Auditor-General the previous year so the problem had been known. What was going to be done? The Public Protector reported that the outreach to clients had made her mandate known to people in rural areas but fewer cases had been reported to her office. What was the reason for the discrepancy? Why was there a reduction in the number of cases but an increase in service delivery protests and municipalities disorders? Why was the target for cases decreasing? Members asked if there was there a negotiated fee cap for counsel when she briefed more than one counsel for similar cases. Did she have a list of counsels where fees were pre-negotiated? What had happened to the case of Free State government website which had been sent to the Public Protector in 2013? What was the report not released by mid-year as promised? Had the political involvement in the Estina case been investigated? Where was that report? Which radio stations did she speak on and were the programmes in all languages? Was the Public Protector meeting people with disabilities and was sign language used? Was there someone in the office who assisted people with disabilities? How many cases were more than two years old and how many backlog cases were there in the institution? Was there a turnaround time for investigations? Were complainants kept informed about delays? Was there any consequence management for those in the department offices who were too lazy to finalise matters? Had the Office followed up on the Inxuba Yethemba and Tshwane fleet vehicles cases in the same way as it had done with the Tshwane meters? Why was the request for a gratuity for the Deputy Public Protector not included in the request to National Treasury? The Public Protector had previously been adamant that she did not want donor funding but was she deeming it acceptable to accept crowd funding to pay her personal costs? Was that not just another form of donor funding?
The Chairperson said he had made a request for an interpreter so the meeting would be delayed by five minutes while the interpreter was called. Ultimately, the electronic translation system was switched on to allow Members to hear translations.
The Chairperson welcomed Adv Busisiwe Mkhwebane, Public Protector, and her team.
Briefing by the Office of the Public Protector (PPSA)
Adv Mkhwebane, informed the Committee that the meeting came three days after the celebration of the Office’s 24th anniversary and three years and three days after she began her duties as PP. Highlights were the finalisation of 30 formal investigation reports and ten systemic investigations.
The PP noted that her Office had been at the receiving end of a blistering attack from senior members of the Executive arm of government who were also Members of Parliament. Unsubstantiated accusations that she was beholden to a faction of the governing party had largely underpinned those attacks. She had reported those to the Speaker.
She stated that an example of overachievement was in relation to the community outreach programme where the PPSA had exceeded its outreach clinics target by 69, holding 277 when it had planned to conduct only 208 visits. In addition, the Office had conducted 23 more radio slots than the planned 36, bringing the total to 59.
The PP informed the Committee that another notable achievement related to the PPSA’s continued impact on the continent where issues of good governance, human rights and the rule of law were concerned. That effort was acknowledged when her counterparts and peers from elsewhere on the continent had elected her President of the African Ombudsman and Mediators Association (AOMA), which was an umbrella body of Public Protector-type institutions.
Mr Vussy Mahlangu, CEO, PPSA, stated that 14 147 cases were handled in the year to 31 March 2019. 4 390 cases had been carried over from 2017/18; 8 717 new cases were received; 9 912 cases were finalised, 4006 cases were carried over to 2019/20. 1 100 cases were referred to other institutions. Those offices located in private buildings were being moved to public works buildings with the help of the Department of Public Works.
Ms Yalekile Lusibane, CFO, PPSA, stated that the Office had a deficit of R22.8 million in its restated figures for 2017/18. The accumulated deficit had been reduced to R3.5 million at the end of the 2018/19 financial year. The PPSA received an unqualified audit opinion with material misstatements. The Auditor-General’s Report indicated two material findings. The findings included the fact that 28% of the suppliers had not been paid within 30 days. It was determined to be the result of a lack of effective monitoring and reporting for the first few months in the financial year. Material adjustments to the Annual Financial Statement had been submitted for audit purposes. Key positions within the Finance Unit had been vacant for the greater part of the financial year. The Senior Manager Finance position had been vacant from August 2018 to February 2019. The Manager: Financial Accounting position had been vacant from April 2018 to January 2019.
The PPSA requested additional funding of R110.898 million for the funding of critical positions, professional fees and security 2020/21 to 2022/23 MTEF period.
In the First Quarter 2019/20, 79% of the quarterly budget had been expended but the CFO assured the Committee that entire budget would be utilised in the current financial year.
The PP stated that the report on investigation results had not indicates any challenges.
Mr Kevin Malunga, Deputy Public Protector, PPSA, said a few words of farewell. He had been Deputy PP since 2012. He was leaving an institution that was stronger and more well-known by the public than the one he had joined. He expressed concern that Parliament was not holding the Executive accountable for the various infringements constantly reported to the PP. There was a trust deficit between the people and the state. The PP had done very well in taking the PPSA to the grassroots and it was there that he had found a trust deficit in the government. There was a greater footprint in some provinces which were not sufficiently covered. KwaZulu-Natal had only one office in Durban and now had another one in Pietermaritzburg so people had a long journey to reach an office of the PPSA, such as the 400km trip from Ulundi to Durban, and those challenges were also evident in other provinces. He believed that the mandate of the PPSA had become much clearer. He was of the opinion that the media was part of the problem as it did not have much interest in the bread and butter issues that the PPSA resolved.
The DPP advised that his successor should receive proper terms or conditions of services, and delegations, in particular. He had requested a gratuity but that was between one office and another. The public procurement system was responsible for a lot of the challenges that SA faced, including load shedding, potholes, etc. Contracts were frequently awarded to people who could not do the job and simply ate the money. That was the reality. People were appointed who were not fit for task. People could not distinguish between their private persons and their public responsibilities. There was insufficient protection for whistle blowers and there needed to be better communication and cooperation between departments and entities in the Justice cluster. There was an absence of consequences for people who were found wanting. The PPO wrote lovely reports but nothing happened.
The Chairperson welcomed Mr G Gardee (EFF) and Dr Mathole Motshekga (ANC), former Chairperson of the Committee on Justice and Correctional Services.
He stated that the DPP would be requested to provide a formal exit statement to enable the Committee to address any issues before the appointment of the new DPP.
Adv H Mohamed (ANC) stated that he was looking forward to the exit interview with Mr Malunga. He congratulated the PP on the audit report. He asked how far she was with electronic case management system which would assist with the management and reporting of the cases and investigations. She had reported on it the previous year and the Auditor-General (AG) had referred to that matter.
Adv Mohamed asked about the number of invoices not paid within 30 days. It was an issue picked up by the AG the previous year so the PP had known about the problem. What was going to be done? He did acknowledge that the situation had seemed to improve in the last two quarters.
Adv Mohamed noted the good work done in ensuring that maintenance was paid to those entitled to it. The PP had referred to a matter in the Western Cape to recover maintenance funds. There was a project in the Western Cape called the Isondlo Child Maintenance Programme in the Western Cape which was geared to ensuring that maintenance was paid. Was there any relationship between PPSA and the Department of Social Development? In the report, the PP had noted that the outreach clients had made the mandate known to people in rural areas but fewer cases had been reported to PPSA. What was the reason for the discrepancy?
In the July engagement with the Committee, the PP had said that she would engage with National Treasury in terms of legal fees that had escalated. Adv Mohamed asked if she had been successful in that regard? Legal fees in the budget were very high and he understood that there had been many cases. Was there a negotiated fee cap for counsel when she briefed more than one counsel for similar cases or did counsel bill her? Did she have a list of counsel where fees were pre-negotiated? He was looking forward to the engagement with the DPP on the delegations of the DPP and the quality assurance mechanisms that he had raised elsewhere.
Ms N Maseko-Jele (ANC) congratulated the Office on the audit, even though there were some issues that had to be followed up. She was concerned about the 30-day payment as the companies needing to be paid within that period were SMMEs that government wanted to grow. She congratulated the PP on her election to the position of President of the African Ombudsman and Mediators Association. It was a boost for women when they got into those positions. Women worked hard, not that men did not, and contributed a lot. She thanked the DPP for the years that he had been there and support given to two PPs.
Ms Maseko-Jele thanked the PPSA for the good work done, especially in changing the Office. The progress being seen would give the PP confidence going forward. She asked how many women were in senior positions in and the positions they held. On the matter of the Department of Justice and Constitutional Development (DoJ&CD) not assisting the PP to do her work, she thought that the Committee had to make sure that everyone came on board and assisted the PP. The PPSA had done well on targets but had added more targets. Was it because she also had work on the backlog cases? Was that not putting pressure on the workload? What was the impact of having fewer investigators in the PPSA? The cancellation of leases was a good move as it was important to make sure that the PP assisted with the finances.
Ms J Mofokeng (ANC) was concerned about the adding and dropping of targets. The PPSA was dropping MoU’s with DoJ&CD and the nine provincial Speakers, especially when she needed help with the Executive. What made the MoU’s with the Special Investigating Unit and the SA Local Government Association so successful? There was no indication of decisions taken about charging people in the Alexandra Human Settlement case and in Tshwane, even though the PP had said that people would be charged. The PP had reported 8707 cases which was 3 224 fewer new cases than the previous year but she still did roadshows and was on radio stations. Which radio stations did she speak on and were the programmes in all languages? Was the PP meeting people with disabilities and was sign language used? Was there someone in the office who assisted people with disabilities because they were also South Africans and human beings? The PPSA had visited a number of clinics, but had she taken up the matters with the different provinces? Why were there so many problems with clinics if she had visited so many of them? Had she been back to stakeholders over the past two years and given feedback to the stakeholders?
Mr W Horn (DA) noted the matter raised by the AG regarding the material misstatements in the Annual Report. In the presentation, that failure had been ascribed to having no senior manager for finance or accounting but that explanation was not acceptable as the AG’s report turned on the failure to review the financial statements after they had been drawn up. The duty to properly review the financial statements rested with senior management and that was the responsibility of the CFO and the PP. They had a duty to review financial statements. Going forward there had to be a plan to show how material misstatements would be prevented in future.
Mr Horn stated that, in terms of backlog cases only one in four cases had been finalised. The PPSA had stated that it was due to the complexity of cases. He wanted a detailed list of all cases that were deemed to be backlog cases. The case of Free State government website, which had been sent to the PP in 2013 and the PP had promised the report by the end of July or August, still had not been released. Someone had been paid literally millions of Rand to set up a WordPress website which anyone in the meeting could set up and so it could not be that complex. He wanted to know where the report was.
In respect of the comments by the DPP, Mr Horn had been made aware that there had to be a reinstatement of quality control mechanisms, i.e. there had been good quality control mechanisms in the past and they were either absent or not as good. He asked the DPP to respond. The DPP had also stated that Parliament had not held the Executive to account. As he understood it, the PP could report the matter to the Speaker of the National Assembly when the Executive failed in its duty. How many times had the PP reported that Executives and government departments were failing? Members could not go and source those cases. They were not the policing authority on behalf of the PP.
Mr Horn referred to the Estina case. In August 2018, the PP had promised that she would investigate the political involvement in the project. Where was that report, specifically in the light of the information of the former Free State MEC for Finance at the Zondo Commission? She had said that the procurement documents should have gone to senior politicians to sign it off.
Mr Horn noted that the PP had previously been adamant that she did not want donor funding but was she deeming it acceptable to accept crowd funding to pay her personal costs? Was that not just another form of donor funding? He agreed that it was a concern that there were fewer and fewer cases going to PPSA. It was a trickle; nearly 20% fewer. The decrease in complaints had been a trend over the last few years. Despite the Constitution saying she should act without fear and favour, the ultimate issue was public confidence and there seemed to be less and less confidence in the PP. Had the PP properly analysed high profile matters and what lessons had been learned? Had any consideration been given to the fact that those matters could be the reason that fewer and fewer “Gogo Dlamini’s” knocked on the door of the PP for assistance?
Adv S Swart (ACDP) noted the improvement in the audit report although it was not yet a clean audit and he was pleased that the deficit had been reduced from R23 million to R3.5 million and that there had been a filling of posts. That would allay his concerns previously expressed about the PPSA being factually insolvent.
Adv Swart thanked the DPP for his contribution, noting that and the DPP had engaged very thoroughly on the Protected Disclosures Act and he appreciated that. He looked forward to the exit report and perhaps a written submission on lessons learned and what could be taken forward for the next DPP. He was correct that Parliament was not holding the Executive accountable. Even the courts had made that finding so there was a lot that needed to take place in that regard.
He was concerned about the reduction in the number of cases but an increase in service delivery protests and public procurement issues across all sectors so there should be far more cases. Why the decrease? In 2012/3, 22 400 cases had been finalised with 25 000 new cases. In 2018/9 there had been 8 700 new cases, almost a third of the 2012/13 caseload, and 9 929 cases finalised versus 14 000 “handled”. That was significantly less. The budget in 2012/13 was R183 million with a staff of 284 and that had increased to funding of R326 million and a staff of 346 and the PP had indicated that she needed additional funding so the reduced case load did not make sense to him. Was there less trust in the PP? He did not believe that Departments were solving the issues as there were increased reports from SIU and the SA Human Rights Commission. He asked for comment from the PP.
The other issue was the lack of compliance with binding actions by the Executive that was just not complying. The Committee had to raise the matter with the Speaker’s office. Regrettably the PPSA was also guilty when one considered that the Human Rights Commission had said in its Annual Report that PPSA was in breach of section 32 of the Promotion of Access to Information Act (PAIA).
Adv Swart stated that the findings of the court judgement in the decision of the President of SA vs PP on 8 August 2018 were damning findings: There was no consistency in the approach of the PP. It was mind boggling that the Public Protector was not consenting or that she had not consented to at least the stay of her remedial action pending finalisation of the review application. The judge repeated that it was mind boggling why the Public Protector was not acceding to what she, in the first place, had suggested. He invited the PP to comment, if she wished to do so.
Ms W Newhoudt-Druchen (ANC) thanked the PP and congratulated her on her appointment to AOMA. She thanked the DPP and wished him all the best for his future endeavours. She asked if the roadshows reached people with disabilities and did she give awareness to people with disabilities because Ms Newhoudt-Druchen was not aware of anything.
Ms Newhoudt-Druchen noted that the PP had signed MoU’s with three provinces - why not with the other six provinces? Slide 42 related to money recovered but the heading said: “can be/was”. What money had not been recovered? On page 103 in the Annual Report, under staff with disabilities, the target for males was five and one female. Why was there no gender balance and why was the target not achieved? Why was there no indication of a Western Cape provincial representative in the Annual Report on page 105?
Adv T Mulaudzi (EFF) congratulated the PP on the unqualified audit report that showed that the PPSA was in good hands and it showed that she was a fit and proper person to hold the office of Public Protector, and that was why the whole continent had confidence in her and had elected her President. The only thing that she had committed was to touch the untouchable.
Adv Mulaudzi asked about employment equity. The PPSA had exceeded the target for African males in senior management but had employed only seven African females against a target of nine. Why did it not balance? The government institutions had to be balanced in gender.
He noted that the Department of Public Service and Administration (DPSA) was reviewing the structure of the PPSA. Could the PP update the Committee on that process? Would there be any negative or positive impact as a result of the delay by DPSA? 169 outstanding cases were reported. How many cases were more than two years old and how many backlog cases were there in the institution? Was there a turnaround time for investigations? Were complainants kept informed about delays? Was there any consequence management for those in the department offices who were too lazy to finalise?
Adv Mulaudzi asked the DPP to clarify what he meant about quality control mechanisms. How did those differ from the current quality control mechanisms? There was R876 000 underspending on investigations. Only 75% of Key Performance Area targets were achieved resulting an underspend of R3.4 million. Why were the critical programmes compromised? What had happened to the internal audit unit? PPSA had committed to reduce audit findings by 50% but had only managed to do it by 11%. Could the PPSA not reduce the budget for specialised experts by partnering with the SIU and getting their retired members to assist the PP to push issues forward? The PPSA had requested additional funding for case management, professional fees, etc. What had the response of National Treasury been?
Mr V Zungula (ATM) stated that the PPSA was a very important institution in SA’s democracy, because it represented the poor and the most marginalised people in the country, particularly when they were undone by government and its institutions. Those were the people who did not have well-funded imperial NGOs to fight for them. There were two kinds of South Africa: South Africa for the rich and the South Africa for the poor. All those who fought for the poor were opposed by the rich. If one’s work was on the side of the poor, the system of capitalism will try and destroy you. So, his words as the ATM, was to say to the PP that she had to stay loyal to the people of SA because they needed her to be strong, principled as well as fearless. He commended her for the 22% increase in reaching targets after the PPSA had increased the targets; making the office of the PP more accessible to citizens; for educating citizens to be more aware of the role of the office; the countless cases that had been finalised and were making a difference in people’s lives, as well as the recovery of R260 million for the state as a result of her investigations. He also wanted to congratulate her on her election as the President of OAMA. That showed that the African continent appreciated her competence and capacity.
Mr Zungula noted the PP’s remarks that that 40 organs of state had ignored or partly implemented her findings. How could Committee intervene in the matter? Why were reports published via YouTube?
What impact had the attacks by various politically connected or the elite had on staff morale? What was the percentage reports that were successfully reviewed versus the total number of uncontested reports?
How could Parliament and the Committee assist with the PP’s work in AOMA? Did the attacks on the PP by the Members of the Executive worsen the trust deficit? How could Parliament assist in that regard? How could PPSA be strengthened to ensure that all were treated equally before the law and the rich did not abuse their power?
Adv G Breytenbach (DA) stated that she was largely covered by her colleagues. She noted that the staff complement had increased exponentially, as had the budget, but fewer and fewer cases were being finalised. Only 9 921 cases had been finalised in 2018/19 and the target for 2019/20 was only 7 000. Why was her target for cases decreasing? She thanked the DPP for his work over seven years and his significant contribution. He had stated his concerns about quality control and also that in most high profile matters, particularly with a political angle, he had been completely ignored and had had no input into the reports or how they were compiled? Why would the PP not use his expertise considering his qualifications and experience? Why would one not make use of that expertise? She failed to understand why one would not use all the expertise available in an office. She asked the PP to help her understand that.
Adv Breytenbach asked for an update on the amount/cost on labour-related matters. What was the ballpark figure? In one instance the cost seemed to be over R700 000. If that was so, what was the matter and why was the cost so high? In terms of the PP Act, the PP had to exercise control over investigations and had to sign off all reports. She had stated that she did not do the investigations and one would not expect her to but Court papers showed that the PP was trying to shift the blame onto investigators to avoid personal cost order. That was untenable as she was responsible, which was why she signed off the reports. She required an explanation.,
Mr X Nqola (ANC) greeted the self-appointed political security guards for the PPSA who were doing a good job. The report stated that the PPSA was suffering from a shortage of security detail but he suggested that the PP just use those people. He said farewell to the DPP. He had served the people of SA well.
Mr Nqola noted the introduction of the report said the PP had served three years, which was a good thing, but the PP should use the opportunity to measure shortcomings so that in the remaining years she could recover from the problems within the office. A number of cases had been taken under review and some had been taken to court, but in terms of the entirety of cases, how many the of remedial actions were enforceable. A number of targets had been exited. What were the underlying factors that convinced the PPSA to do that? The PPSA was always exceeding targets, making the system compliant. Why did the PPSA not set more challenging targets? The issue of the security shortfalls put the staff under threat. Had they talked to National Treasury and what had the response been?
Mr Nqola stated that despite cost containment, there was still a deficit which hindered the work of the office. How had cases taken under review affected the lack of funds? He referred to the issue found by the AG of non-payment of service providers within 30 days. The reason for non-payment within 30 days was a lack of monitoring and reporting. What was the consequence management for those who had not monitored and reported?
He said that there had been 8 717 new cases but 4006 of the cases were carried forward to 2019/20. That was almost 50% of the original number of cases. What was the reason for carrying so many cases forward? Would that not hinder the investigation of the new cases to be received in the current year? He referred to the Tshwane smart meter box investigation and the investigation into Inxuba Yethemba Municipality in the Eastern Cape that had been completed as well as another issue in Tshwane regarding the tender on a fleet of vehicles. Had the PPSA followed up on the latter two cases in the same way as it had done with the Tshwane meters? Could the PPSA authorities say that the offices were accessible to the public? He had received a letter about the non-responsiveness of the PPSA, despite a person’s numerous attempts to get the attention of the PPSA.
Ms M Khawula (EFF) thanked the Public Protector for the sterling she was doing and indicated she has not seen anything that suggested the Public Protector was unable to carry out her duties, except for people who were attacking her because of her skin colour and that they wanted to protect their own interests. A lot of work still remained to be done in SA, and a person who was going to protect Blacks and withstand criticism was needed. Before some MPs could say the Public Protector was a failure, they should start asking themselves what they have done to assist her to do her work better. They must ensure they had their facts right to prove their statements. She assured the Public Protector she won’t be relinquishing her position due to outside pressures so long as people like her (Ms Khawula) were still around. Women in the Committee had to ensure they were supporting the Public Protector in her work because many people in SA were still behind in terms of knowledge about their rights. If, as Members, they fold arms, nothing would happen.
She pointed out the Human Settlements Department was facing big challenges because there were houses that collapsed because of floods, and those houses were built five years ago. Some houses in Ward 143 in Nduzuma have been invaded by non-intended beneficiaries. Those were the matters they would like the Public Protector to attend to.
She remarked that the Health Forensic Services in Durban was grappling with huge backlogs such that communities were battling to bury their loved ones in time. This was an indignity to Black people. People who were working at this department were not being given their rights. She urged the Public Protector to visit this place because it was facing many problems.
She wanted to know if the Office of the Public Protector had a road show programme where it could visit people in rural areas and educate them about their rights and what the Office of the Public Protector was doing. Many people’s rights were getting violated on a daily basis.
She further observed that eThekwini Municipality was experiencing a big crisis. She had not heard anything from the report about this. She could not understand why a person would misuse public funds because of her/his position. The implicated person gets deployed to another place instead of being arrested and charged.
Also, she stated the Western Cape was facing many challenges that still needed to be resolved. After 1994 the government gave back to people all the old houses in the townships they were renting during apartheid because those houses had no value in any way. But that seemed to have not happened in the Western Cape because when she was deployed by her party in Worcester, she saw some dilapidated old flats being inhabited by people. That was unacceptable. Another example she cited was that when an adult in a family died while owing the municipality money for water or electricity, the children have to continue to settle the debt of the parent. No provision was being made to address that.
She said the Public Protector should ensure that educated people who live with a disability should be employed because they did not want to depend on the social grant. She asked the Public Protector to address the issue of “Lindela” because in Ward 75 at Lamontville there were still people who had been removed from other places for a short time to get a temporary accommodation. Their situation was bad. She went on to say there were many challenges in SA. For example, when a Black person gets killed, no criminal investigation gets finalised. That was why the country was in need of dedicated people like the Public Protector to deal with these challenges. Those who were baying for the blood of the Public Protector would never succeed. She would continue to support her and fight until she finishes her term in office. The Public Protector should ensure women get employed and were given the respect they deserve.
The Chairperson stated that some of those were new cases that would have to be investigated.
Mr Nqola asked the Chairperson to remind Members about the purpose of the meeting and that it was for the PP to table the Annual Report for 2018/19 and not discuss issues that had nothing to do with the purpose of the meeting.
The Chairperson replied that Members had been reminded by Mr Nqola’s comment.
Mr Q Dyantyi (ANC) agreed that the meeting had been convened to address matters contained in the Annual Report. He was happy that the Annual Report was not an expensive bound report and was a fair reflection of the financial constraints in PPSA.
Mr Dyantyi asked questions on the Annual Report (AR) 2018/19:
Year at a glance: on 10 July, the PP had presented a slide saying that 4521 cases had been carried over but now she was saying that the carried-over figure was 4390 cases. Why was there a discrepancy? Which was correct?
Slide 42 – on that slide about the reports of the PP for 2018/19, he noted that Report no 5 was on the Mogale community but Report 5 in the AR was about the Premier of the Western Cape. That report was repeated at no 5 and no 31. Had the PP herself seen the report before it had been printed?
Mr Dyantyi indicated that he was going to take her to things in the report that should not have been reported. In the AR, the report on Pikitup referred to Malusi Gigaba. He needed help to understand because there seemed to be a lot of cut and paste in the report. Report no 6 was on the Deputy Speaker of Limpopo but the findings were speaking about a Minister. There were 50 reports with such discrepancies.
At what point was the case closed? The report needed a last column on the status of the report, e.g. taken on review, etc.
The suggestions made regarding the Department of Human Settlements, Report 43, contained significant proposals. Had the report been shared with Human Settlements and what was the feedback? Was the PP able to determine whether anything was done?
Mr Dyantyi noted that the 2017/18 report had contained a list top offenders. Had that list changed in 2018/19?
He noted that when PP had attended the Committee meeting in July, she had said that she had engaged with National Treasury and that she had submitted a request for funds. She had been unable to give the Committee a breakdown of the R10 million for legal fees but she had told National Treasury that R6 million was needed for contractual obligations. If she had engaged counsel and knew how much she had to pay, why had she refused to tell Parliament?
Mr Dyantyi stated that the request for a gratuity for the DPP presented to Committee was for R5.5 million but that item was not included in request to National Treasury. Why not?
Mr Gardee said that Adv Breytenbach should have known better than to ask sub judice questions about the PP blaming the investigators. He advised the Chairperson to tell the PP not to answer the question as it was a matter of court papers. He had heard, and it had been stated by Adv Breytenbach, that the DPP was crying foul because he was not involved in high profile cases. On two occasions he had seen the DPP on television acting as Pontius Pilot washing his hands when the heat was in the kitchen. Did the DPP have security clearance to deal with high profile cases? He had been unhappy with both PPs that he had served under.
The Chairperson stated that the PP knew which questions she could answer and which she could not. He gave the PP five minutes to prepare her answers.
Mr Gardee rose on a point of order asking the DPP to return to the room to hear the comment he needed to make.
Adv Mkhwebane, thanked all the Members for their positive comments. The team was listening so that they could implement the input from the Members. She thanked the AG for his guidance and help and the team that had assisted the PPSA to progress so well with the Financial Statements.
On Isondlo, she was not working with DoJ&CD. The Department had failed to assist the complainant which was why the person had escalated to her Office requesting assistance and she had been able to resolve the complaint.
Mr Gardee noted that the DPP had returned. He insisted that the Chairperson had to reprimand the DPP for the way he had treated Mr Gardee when he was looking for a drink during the recess. The DPP had pounced on Mr Gardee like a load of crusher stones and told him how little and useless he was and how powerful the DPP was. He had threatened to tell the PP what Mr Gardee had said about her previously. The DPP had asked Mr Gardee who he thought he was, in front of other Members. Should Members be intimidated by the clients? Should they be so intimidated that they did not ask questions? He took serious exception to the behaviour of the DPP. He did not take it lightly. The DPP might have treated the two PPs in that way, but he would not accept that behaviour.
The Chairperson asked the DPP if that was what he had done.
The DPP replied that Mr Gardee exaggerated the interaction. There had been witnesses – Mr Dyantyi and Mr Nqola.
The DPP had told Mr Gardee that he would respond to his narrative. The beauty of lies was that they had very short legs. There was a lot of embellishment in Mr Gardee’s story and he would like to respond to Mr Gardee.
The Chairperson said that the Committee had to deal with the business first. Thereafter, they could handle the matter as he had to hear both sides of the story.
In response to the questions of the public losing trust and confidence in the PPSA, the PP said that in the July meeting Mr Dyantyi had asked about the seven pillars. They were there and the first one dealt with speaking in the people’s languages through the radio stations. She had been promoting Pillar 7 in the past year. It was about the footprint which meant the roadshows, MoU’s with DoJ&CD and SALGA to utilise their offices when her officials did their roadshows. On the fewer cases, she had encouraged departments and state entities to establish their own internal complaints mechanism. She was following up on those who had followed her instructions to allocate a person who could respond to the complainants. In a municipality there had to be a person who could respond. The PP was not a public servant and could not do the work of public servants. They had to do their own work and assist communities. The Tax Ombudsman had handled 40 000 complaints over the past five years and if he were not there, the complaints would have gone to the PP. There was also the Military Ombudsman and the Health Ombudsman so that people did not have to complain to PP. Likewise, the City of Cape Town, Western Cape Police and others each had an ombudsman who took up all work.
The PP said that she could focus on systemic investigations and that related to how government could change service delivery and how government could use her reports to improve. She had found that a lot of municipalities depended on grants and that was where service delivery was. Provinces that did policy work were over-capacitated and had so many officials. Hence, when she did an investigation and issued a report, she could ask whether government could consider changing the structure of municipalities or funding municipalities like they funded provinces. So that had reduced the number of complaints. It also addressed people lodging complaints with institutions. When people lodged complaints at roadshows, the PPSA advised people to go to particular institutions. She could deal with any complaint but advised people that it was better to deal with the various institutions because they could assist the people. That clarified the number of complaints received by the PPSA.
On Adv Mohamed’s point on the legal fees, the PP said that she had a panel of attorneys but she could not deal directly with Senior Counsel. There was a fees cap for attorneys and they had to see to a cap on counsel costs, but often they used junior counsel. It was very unfair that the PPSA was taken to court by government in violation of Chapter Three of the Constitution on Cooperative Governance and the government departments could use their budgets to take the PP to court but the PP could not use state attorneys. It was a question that Members would have to ask themselves: Was it justifiable for departments to use their budgets to take the PP to court when the PP was trying to have an impact on the members of the public and strengthen constitutional democracy?
The PP said that she did not how many Members of the Sixth Parliament had read the handover report because she had written to the Committee explaining the delegations issued to the DPP by the PP which was provided for in terms Section 2(a)(6) and (7) of the PPA Act, that the Committee should be aware of, where the PP could delegate the work to the DPP. She had delegated the same work as the previous PP but she had to comply with the law of the country. She could not ignore that. There was the Intelligence Act and Minimum Information Security Standards (MISS) that had been passed by Parliament. She had written to the Speaker. The PP was expected to secure the security of the country. She had waited for the response from Parliament, which had never come and she had allocated additional work to him based on that. Even the previous PP had only delegated administrative justice and service delivery matters to him and never high profile work. The PP had had to delegate the backlog cases to him. She was still dealing with the backlog dating back to 2013. Adv Breytenbach and Mr Horn were questioning the number of staff but in the past the PPSA had not dealt with the backlog. It had an impact on her budget. The backlog project was focused on the matter because there were currently only 43 cases not finalised.
The PP responded to Ms Maseko-Jele, thanking her for the congratulations. She explained that an Ombudsman was called a mediator in Francophone Africa. She had been encouraged by the fact that many of the representatives of AOMA saw themselves as mediators. She was also seized with how the organisation could promote the rule of law and good governance. She wanted the AU to utilise the services of the SA training centre and she had been working with the Department of International Relations and Cooperation. The African Ombudsman Research Centre at the University of KwaZulu-Natal in Durban currently trained her staff and ombudsman from SA and other countries. Unrest in Sudan had started with service delivery protests and had expanded. She wanted to help other countries in Africa. The work at the Centre had been funded by the Department of International Relations using African Renaissance funds but the Department had stopped paying and she was still fighting with them about funding.
On remedial action in response to non-implementation, the PP said she had written several letters to the Speaker of Parliament through the Office for Institutions Supporting Democracy. Often Ministers took her reports on review but that should not stop them from implementing the findings. She had reported the former Minister of Education, Naledi Pandor, but the Committee said that the Minister had taken the matter on review, even though she knew full well that it did not stop her from having to implement the findings. Parliament should assist because the Ministers reported to Parliament.
The PP said that the CEO would talk about targets but when there were strategic matters, she had had to include additional targets or the work would not be done. She added that departments also had to do their work. She was not going to take on their work because she only had 159 investigators and she was investigating more than 1000 state institutions.
The PP had an MoU with DoJ&CD to use magistrates’ offices in far-flung areas. She had left the CEO to operationalise that. The IEC had a lot of offices and a lot of support from government as had COGTA but those MoU’s had not been operationalised. She had wanted MoU’s with the Speakers at the provincial Legislatures because they had oversight over the Members of the Executive Councils. When the PPSA received complaints, it was often the same issues that had been lodged with the Speakers in petitions and she wanted to get rid of the duplicates. She used provincial forums because the PPSA did not have money. Some Speakers had cooperated but not others, so the PPSA had taken the issue to the National Council of Provincial (NCOP) but there was no help. She had since signed more MoU’s with Speakers. Also, when MECs did not implement actions, she reported them to the relevant Speaker.
On roadshows, the PP had sign language interpreters and pamphlets in braille were handed out. However, it was not easy to find staff who could communicate with people living with disabilities. Regarding the issue of clinics, which were not Department of Health clinics, she explained that when on a roadshow, the PPSA would open a file when a community member brought a complaint that had not been attended to by the department or entity where the complaint had originally been lodged. She had had complaints from farm workers in Worcester because farmers employed foreigners and they spoke in Afrikaans so she wanted the Department of Agriculture to ensure that farmers complied with labour laws and immigration laws. She always gave feedback to the complainants and if it was a systemic issue, she wrote a report.
The PP had sent the list of the backlog cases to the Committee after the 10 July 2019 meeting. PPSA had only 35 cases left from 2013 and she was hoping all would be dealt with by the end of the second Quarter. The PP noted that people said that she was too operational but she had to see that the work was done. The PPSA now had an IT system to manage the administration of files, although it was not the case management system that was needed. The IT unit had designed a system where the PPSA could keep all their cases according to the various categories. That process was monitored each week and she, the Chief of Staff and CEO checked the progress every week. The Senior Managers also had to monitor the work statistics. She checked the executives’ performance each month to make sure that the backlog was being addressed.
Regarding the Free State website matter, it had taken a lot of her time. She had had to request the CSIR to assist regarding the prices of websites because she could not afford a specialist in that field and she had had to get the SIU to analyse the phone calls of those involved. Prior to that, nothing had been done since 2013. She had received a draft section 79 notice but it had been sent back because of the poor quality of work. There was now a quality assurance process to prevent poor quality work.
The PP said that the DPP would answer on quality assurance but she would give her views on the matter first. Quality assurance had taken place through the think tank they had in the PPSA but when there were financial challenges, the Acting CEO had considered the system not to be value for money. She used to meet with the staff from the provinces and they had brought files but those were not finalised and there was no input in the meeting from directors on whom the PPSA had spent a lot of money on to get them there. So, then they brought senior investigators to the meetings as well, but it was more expensive. Consequently, her Office had created a task team. The quality assurance process had been reduced to a task team but executive managers were being paid exorbitant amounts and they were not checking reports. The task to ensure quality had been given to the COO and the DPP.
She had issued her finding on the Vrede matter and disciplinary processes against the person had followed the report. The investigation was at an advanced state and a lot of information had been subpoenaed. It was not only Free State politicians that had been involved, so the PPSA had to get the story from the former Ministers of Finance, Agriculture, Rural Affairs and National Treasury.
The PP responded to Mr Horn’s question about public funding. It was a matter of making sure that the PPSA was not threatened as an institution – especially the independence of the institution, and the instilling of fear in the person of the Public Protector. The crowd-funding campaign had been prompted by a court judgement which, in her view, had unfairly separated the Public Protector from Busisiwe Mkhwebane. It was creating precedents because a lot of people were using that route to say that there had to be a personal costs judgement, but the Public Protector was there to serve the public. Those people who were there raising the money for the Public Protector understood that their democracy was in danger, and if they allowed people who occupied those positions, and who were there for them, to be threatened by personal costs orders, it would be a challenge. Therefore, it was a question of availing the money in her personal space, which would be declared, and she had a legal opinion on the matter. And again, she was doing her work as the Public Protector.’
Regarding the judgements and the judges’ comments, she had already explained that those judges also had their work set aside by higher courts. She had noted the issues to see where she could improve. The state should not be taking the PP to court. When she opposed the reviews of her findings, it was a matter of assisting the court to come to a decision. There was a perception that if she was losing cases, she was not performing her duties but mostly the reviews were procedural matters, not substantive matters. However, it depended on whether her explanations were taken into consideration.
She had not done a study of the reduction of the number of cases opened but she saw the reduction as evidence that the seven pillars of her strategy were effective.
She would appreciate Adv Swart’s assistance in getting Parliament to do oversight. She assured him that there was no lack of trust in the PP because the people were not interested in the media and they did not ask if she could do her work because they were only interested in bread and butter issues.
She did follow-up on the implementation of findings, but it was not the role of the PP to follow up and it was not in the mandate of the PP. She escalated the issues to Parliament to follow up. The Committee could help by pleading with the Ministers to follow up.
She did not know about the finding by the Human Rights Commission. It was concerning if Professor Majola had not informed her.
The missing representative for the Western Cape in the Annual Report was an oversight. Mr Dyantyi had found some mistakes but, due to financial constraints, the Annual Report had been printed internally. The CEO and the team would have to see that there were no errors in future reports. She apologised for the mistakes.
At executive level there were more than four women and only three males and that was balanced by the DPP. She agreed that she had to do more on gender equity on the other levels. She had asked herself if paying a senior investigator R800 000 was value for money. So, she had gone to DPSA to check on staffing levels.
The PPSA service standards and the rules were on the website. Those told government departments how many days they had to follow up. PPSA had service standards. Often a complainant wanted to be told every day what was happening even though the investigator was dealing with 25 cases. So, the investigators could not always respond but the people were treated with Batho Pele. Complaints lodged with the Committee could be sent to her.
She had engaged with the SIU to assist and she would approach retired experts, if resources allowed it. She was dealing with an old issue of Eskom but she did not have expertise and could not go to SIU.
She thanked the ATM party for the compliments and said that her institution was focused on serving the poor and marginalised. When the Members received complaints in constituencies, they had to register them with the PPSA. People at grassroots could help the PPSA to implement actions. She queried why NGOs could not take her findings to court to enforce remedial action. Why did NGOs not ensure that Departments implemented the findings? There were 40 organs of state that had not implemented findings and some of them had gone to court after she had published the list of miscreants.
She said that it was sad to hear the stories during roadshows after 25 years of democracy. She was trying her level best but even the Mayors and Premiers were antagonistic and lots of people had lost trust in municipalities so the PPSA had to mediate between communities and the officials.
Section three of the PPA was clear and she relied on her investigators as she could not finalise 14 000 cases on her own. She was permitted to delegate the work and she relied on the investigators 100% to do the work. The PP did not deal with each and every matter. She was responsible only for section 79 and signing reports. She trusted that her staff had done their work and had included all documents.
The PP said that she had learnt a lot in the three years.
She could send a list of those matters implemented. She had issued 150 reports and 63 were under review. She was appealing the Vrede matter. The CX matter had been dealt with by the Constitutional Court. The Mogale report had been set aside. Reports confirmed by courts were those of Mandela Funerals and the HOD of Limpopo. It was not about winning or losing cases, but about the people that they were trying to protect.
People in the Tshwane meter case had been upset by a comment made by the DPP but she had explained that she was investigating the matter, and not the people. She had received a complaint about the other Tshwane matter. The investigation was ongoing and could take up to 24 months to finalise.
The PP welcomed complaints about her as that was a barometer against which to measure herself. When investigations were closed at Chief Director level in provinces, the public could submit complaints. She assured Ms Khawula that the PPSA was dealing with the matters that she had raised in KwaZulu-Natal and in Gauteng. The PP noted the errors pointed out by Mr Dyantyi but stated that some of the reports were from previous years and the complaints were re-numbered each year. Where there were mistakes, they would be corrected and copies reprinted.
The PP explained to Mr Gardee that the State Security Agency had explained that the PPSA needed to consider issues of security when making the appointments. If a person was not a naturalised citizen after 20 years, the person could not have security clearance. She had already explained about the legislation.
If other institutions were better placed to assist, the PPSA would send complainants to them because PPSA should be the last resort. Home Affairs was the worst Department and local government municipalities were also very bad.
The Chairperson asked the CEO to be direct and to the point.
Mr Gardee asked the Chairperson if he could clarify if it was correct for the DPP to tweet. The DPP had tweeted that he was done. He was also contradicting the PP. The DPP said that the EFF was asking questions just because of the cameras. That was very disrespectful. He should not speak in the meeting.
Ms Khawula indicated when they are in a committee meeting and needed to be protected. Their duty was to represent people, and their work in the committee room had nothing to do with the cameras. She said the committee room was not a place to settle a score you have with another person. She asked Members to be protected because they were there to do their work. She added that there were many things she wanted to report to the Public Protector.
The Chairperson said that he was focusing on the meeting and not on Twitter. It was unfair on the Chairperson as he was not looking at Twitter. If it was happening, it had to stop.
Mr Gardee told the Chairperson that he had to tell the DPP.
Mr Dyantyi said that he did not want the meeting to be reduced to twitter gossip.
The CEO replied that the organisation had, for years, managed cases on a spreadsheet, which was why the AG had queried the accuracy of it. However, the PPSA was receiving pro bono assistance with IT to create an internal system that should be up and running by the next financial year. Regarding persons with disability, there had been five persons but the one who had been assisting complainants in the office had passed away. It was very difficult to attract such people.
The CEO indicated the PPSA was a female-dominated organisation on top, but 18 out of 25 directors were men. It was a case of who did best in interviews. The SAHRC issue related to PAIA and the finding was made because the PPSA did not have standard operating procedures for PAIA. The PPSA had made a bid to National Treasury but, like everyone else, it was waiting for the budget speech. What did the CEO prioritise? Security, because it was important to the staff. Regarding the organisational structure of PPSA, the PP had contacted DPSA to assist with restructuring and moving people. The PPSA needed to establish exactly what their personnel needs were and at what level. For example, did they really need senior investigators when they could appoint more investigators for same number?
Regarding the error in the number of cases as pointed out by Mr Dyantyi, the CEO explained that there were always errors in a pre-audit report. The additional targets had been added because those measures were in the performance agreements with staff. He confirmed that PPSA was signing MoU’s to facilitate work with other organisations.
The CFO explained that 28% or 200 invoices had not been paid within 30 days. All of those suppliers were still operational because they had contract work with PPSA. The reason for the lack of supervision and management of the invoices and payment was that there had been too many senior financial positions vacant. From April to the end of September, 100% of invoices had been paid within 30 days. PPSA was now in control of that matter.
In response to the question on slide 42 which referred to monies recovered or still to be recovered. The latest information was that the monies had still not been recovered. When the report was written, she had not known whether the funds would be recovered as the institutions had not informed PPSA.
The CFO explained that the PPSA had received funding of R16 million from DoJ&CD on 28 March 2018. The entity was not a revenue generating entity and had needed the funding to break even. Two internal audit managers had been appointed. The contract of the external audit would end in November.
The budget process started in July each year and the figures that PPSA had given to the Committee was what it had been given by National Treasury, but the entity had been told to expect a budget cut of 4% per year. In the end, the budget cuts were not as great as expected. The gratuity was presented to the Committee in July 2019 because PPSA had to ask the Committee to approve it before the entity had been able to present it to National Treasury. Currently a remuneration committee was looking at that request.
On the issue of material misstatements, the CFO said that the entity did have a clean audit strategy but had not been able to reduce the number of audit findings by 50%. However, only seven findings were repeat and others were new. They had dealt with most of the repeat findings. The AG had indicated that the vacancies in senior financial positions had had an effect on how the financials were recorded. The CFO assured the Committee that with the revised audit action plan, the entity would get to a clean audit at the end of the financial year.
The Chairperson re-iterated that the DPP had to do an exit report.
Ms Maseko-Jele said that if he responded at that time, he would increase the fire.
The DPP stated that he wished to clarify the situation. He had had an engagement with Mr Gardee during the break and he had indicated he would respond to what Mr Gardee had said, particularly because he had told Mr Gardee that he would tell the PP about some very offensive things that Mr Gardee had said a few months previously. That grouping had not been consistent in its attitude to the PP. The rest was an exaggeration and Mr Dyantyi and Mr Nqola were witnesses.
The Chairperson stated that it was not the time to discuss that. The DPP had to respond to questions.
The DPP said that that he had explained to Adv Breytenbach that he had been involved in high profile cases and he had interviewed the persons regarding the Free State government investigation and had managed the Mandela Funerals case. His reference to quality control had been meant as an advisory message. What had happened was that senior management had picked holes in the reports and had got them right and he was advising that it might be a necessity, despite the expense.
The Chairperson congratulated the PP on her election as President of OAMA. The Committee was there to work with the institutions that reported to the Committee. They would be meeting more regularly than quarterly to probe further and to give policy direction. He would present a project plan at the beginning of the following year. He was pleased to see improvement in that the PPSA was no longer technically insolvent. The help given to the ordinary people had to take prominence because statistics took away from the importance of the PP.
He thanked the DPP for his seven years of service to the nation and wished him well.
The Chairperson stated that the meeting had been completed and he would have a closed meeting with the relevant people to discuss the issue between the DPP and Mr Gardee.
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.