Public Protector South Africa 2020/21 Annual Performance Plan

Meeting report

Opening remarks
The Chairperson welcomed Members of the Committee, the Public Protector and the Deputy Protector and the team. He especially welcomed the Deputy Public Protector, Adv Kholeka Gcaleka, as it was her first Portfolio Committee appearance. The Committee had last seen her at the interviews.

He noted that the Committee would be receiving a presentation from the Office of the Public Protector on its Strategic Plan, APP and Budget 2020/21.

Briefing by the Office of the Public Protector
Adv Busisiwe Mkhwebane, Public Protector (PP), stated that, in addition to the requested presentation, she would explain what the Office of the Public Protector (OPP) would be doing to prepare the office for the return to work following the Covid-19 lockdown.
The PP stated that her office planned to utilise the funds it had been allocated to contribute towards availing justice to the people at the grassroots strata of society, i.e. the communities found in squalid, overcrowded, semi-urban dwellings that one called informal settlements or slums, in the farms, in the hostels, in the rural villages and townships. The complaints received from people residing in such communities, coupled with the OPP’s own-initiative interventions in relation to the plight of such people, made up over 95% of the caseload.
The PP made some introductory remarks. She stated that she was at the halfway mark in her term of office. 95% of her work was servicing the poorest of the poor but the shrinking budget would put a cap on her work.

In terms of Section 22 (6) and (7) of the Public Protector Act, the PP had delegated oversight of the Complaints, Administrative and Service Delivery processes to the Deputy Public Protector (DPP), Ms Kholeka Gcaleka, and she was required to chair all dispute resolution committees.

The PP stated that she had intervened with people stranded overseas when the lockdown had occurred. She had assisted people in Egypt and Russia.

Ms Yalekile Lusibane, Acting CEO, OPP, pointed the error in the Annual Performance Plan submitted to Parliament on p29, p37 and p40. She stated that the errors had been corrected in the published version. She reported that there had been well over 60 000 complaints in the previous year and the OPP had finalised more than 40 000 of those, issuing nearly 150 investigation reports.
Mr Tsiamo Senosi, Acting Chief Financial Officer, OPP, presented the budget for 2020/21. His major concern was a proposed cut of 17% by National Treasury which meant a cut of R56.7 million. OPP will not be able implement the planned targets for 2020/21 if the proposed budget will be implemented. OPP had, among other things, planned to award a contract for employee wellness in the current year which has since become critical considering the current pandemic. OPP will not be in a position to absorb any budget cuts. This has been communicated to the National Treasury and a response is awaited.

Despite various cost containment efforts, the PPSA has implemented in the past financial years, there is still a huge gap in the funding allocation. The situation therefore hinders the office to function effectively and confidently to achieve its mandate and strategic priorities.

The Acting CEO presented the plans for returning to the workplace (PPSA offices) at Level 4 Lockdown on 18 May 2020. The OPP had been declared an emergency service and so would open but no client walk-ins would be allowed. Only 33% of employees would be in the office at any given time and a rotational schedule would be followed. Employees who could work effectively at home were allowed to do so. The OPP would procure laptops so that staff could work at home.
Adv. Kholeka Gcaleka, Deputy Public Protector, OPP, stated that she had been in office for three months and she had spent much time getting to know the staff and the workings of the office. She had been surprised by the number of complaints from people who were not receiving basic services. She had been delegated a number of duties as agreed upon by her and the PP. She had also been working with several government departments as many complaints came to the OPP instead of going directly to departments. Many of the issues related to the Department of Home Affairs. The office had received many complaints from Tshwane about electricity meter reading and water readings.

The OPP wished to draw on the legacy left by previous PPs and so was reviewing a report by the former PP, Adv Selby Baqwa, which provided a systemic assessment of the communication gaps that he had identified in public administration. The report was being given more life by the inclusion of the gaps experienced by the current PP.  Government had to realise the gaps in service delivery.  The OPP had written to the DG in the Presidency as the PP wanted the Report adopted in Cabinet so that government could deal with the matters that were of a priority to people in the country.

Discussion
Adv S Swart (ACDP) was interested in the 158 new cases that had been reported to the PP during the Covid-19 lockdown and for details to be provided in writing of those cases. His greater concern was section 217 of the Constitution and the fact that there had been a relaxation of the regulations relating to procurement. It was not an invitation to corruption. He suggested that the PP might want to look into the emergency procurement of PPEs as there were many reports of corruption.

As the PP had said that 95% of her cases related to the grassroots level, Adv Swart suggested that she should look into issues of water and sanitation. The PP should particularly address the reports of malnutrition by Dr Glenda Gray, who was a member of the ministerial advisory team. She was seeing cases of malnutrition at Chris Baragwanath Hospital for the first time. The National Command Council was not listening to some of the medical personnel on the team. He was particularly concerned about the effect of the lockdown and asked if the PP was able to make a positive contribution to the regulations based on what she was picking up on the ground, particularly as there was the possibility that certain restrictions might be lifted.

While he understood the constraints that the country was faced with, Adv Swart stated that Parliament could not allow that R58 million be sliced off the PP’s budget as that would severely constrain the work of the PP. He was pleased that the PP had already sent a letter to National Treasury but Parliament should also support the PP in the budgetary concerns.

He asked for a report on labour matters at the PP as there had been media reports on the situation of various investigators. The Speaker of the National Assembly had received a letter from the Public Servants Association (PSA) to investigate that matter. He was also concerned about some of the findings of the court cases that the PP was involved in, particularly some of the damning, scathing findings and judgements that had resulted in personal costs orders against the PP. The comments of the judges on the PP, after the President’s case had been heard, was a case in question, although the case might be the subject of appeal. The cost of litigation was a risk for the PP’s budget and he wanted to know why she had challenged some of the cases which then resulted in further costs to her personally.

Mr G Hendricks (Al Jama-ah) asked why the PP was not preparing for Level 3 of the lockdown. One could expect many complaints and if the OPP was only preparing for level 4, it would be caught with its pants down. He asked why the OPP was giving disproportionate attention to complaints by political parties instead of being concerned about issues relating to people on the ground. The PP was tying herself up. He was happy that the PP would be addressing the issue of water and sanitation and he especially requested the PP to continue her vigilance on sewerage pollution because African children all over SA, but especially in the Western Cape, were playing in sewerage and eating in sewerage. He thanked the PP for putting the previous Mayor of Cape Town in the dock for the sanitation issues in Masiphumelele. That could not be allowed. She could not prioritise complaints by big business when communities on the ground were not getting sufficient attention from the OPP.

Ms N Maseko-Jele (ANC) welcomed the new DPP. She saw from the presentation of the DPP that she was doing something in the OPP. She thanked the OPP for the good work. She was appreciative of the fact that there were no more deficits in the budget. She thanked the DoJ&CD for assisting the OPP with R16 million. She was concerned about the decline of the cases on the ground but she was sure that the people on the ground were receiving services because the OPP had been beefed up with women. Security was still a concern and the Committee had to assist with that matter. She agreed that the budget should not be cut and more funding should be provided, particularly at that time to assist with the work on the ground. The Special Investigating Unit had, in a meeting the previous day, raised the issue of the non-cooperation of government departments. The Committee should find out exactly which departments were not taking those matters seriously.

She asked how many people in the Office had Covid-19. The OPP had put in place alternative measures for people to interact with the Committee during the Level 5 and level 4 lockdown periods. Were there any complaints during that time and were there any complaints about maladministration related to procurement during Covid-19? Had the OPP done any planning in response to Covid-19 in respect of the budget and the strategic plan?

Ms Maseko-Jele raised the matter of litigations which could not be avoided because of the maturing democracy which allowed people to request a review of their cases but the PP had to ensure that there was good quality assurance. She noted a number acting positions at senior management level. She knew about the budget restrictions but asked for a comment on the acting positions.
On the issue of language, she noted that the OPP was using the relevant mother tongue on roadshows, but were there interpreters and sign language practitioners in the offices to be able to communicate with people on the ground?

Ms W Newhoudt-Druchen (ANC) acknowledged that the OPP communicated in various languages, especially on the radio but that was not accessible to people. She would like information being offered in sign language. She acknowledged the braille publications by the OPP.

She requested that the errors mentioned in the Annual Performance Plan be emailed to the Committee. Everyone was working online with the Covid-19. Was the IT system strong enough and would the OPP be doing virtual training using cameras? Because of the lockdown, it was possible that the outreach targets would not be met, so were there other plans to reach the targets? The server in OPP was not yet insured. Had there been any crashes of the server because of the load shedding? She added that in the presentation no amount was indicated for the cost of thermometers. She requested that amount.

Adv G Breytenbach (DA) was pleased to hear that the new DPP had settled in but none of the tasks allocated to her seemed operational. Why was that as she was an advocate and had been a prosecutor for some time?

She noted that the Strategic Plan and the Annual Performance Plan (APP) spoke of opportunities to offset the financial pressures. What were those opportunities and how were they being pursued? The 2019/20 APP target for cases settled was 7 000 but that target had been removed in 20/21. Why had the target been removed? She required more detail on the impact of budgetary cuts on the Outreach programme. How would the announcement by the Minister of Finance, Mr Tito Mboweni, effect the budget, how would it be re-prioritised and how would that affect the litigation strategy? How did the PP envision paying the personal litigation costs?

Adv Breytenbach stated that the former VBS bank CEO, Selby Mokgoto, had approached the Public Protector to probe the role of the SA Reserve Bank and National Treasury in the Venda Building Society (VBS) matter.  What were the reasons for the delays in that investigation? The PP had been about to embark on a trip to Turkey when she had been stopped by the arrival of the sheriff at the office to attach assets. What had happened with the trip and the costs involved and had there been fruitless and wasteful expenditure?

Mr X Nqola (ANC) appreciated the clear framework of delegations to the DPP. He referred to the scathing judgement on the PP in the President’s case and the SARS judgement which had followed soon after. It projected an impression of the PP that she was unable to apply the rules and that the PP did not understand the matters that fell under the authority of the PP.  That impacted on the performance of the Office and had implications for building an ethical and effective public service and a capable state. Could the PP explain those two leading cases that had taken place in the previous financial year?

Mr Nqola stated that the acting positions were a major concern. In the past financial year, a number of senior managers had been suspended and the union that they belonged had approached the Speaker, asking her to intervene. That had also led to a number of acting staff which might have negative implications on the work of the staff. What was the plan going forward? The PP should take the Committee into her confidence. He noted that the DPP would be dealing with matters of alternate resolution and he hoped that the process would be taken to its full conclusion.

He added that the budget showed an increase from R332 million in 2019/20 to R341 million in 2020/21. How did the PP intend to use the additional budget to address weak matters that required urgent attention, such as the lack of security? The PP had said that 158 new matters had been reported during the Covid-19 lockdown. Were those complaints related to Covid-19 itself? Cases of councillors and officials taking food parcels and other support for themselves were being reported on a daily basis. Procurement rules had been flouted when procuring PPEs. Were the 158 reported matters related to Covid-19 or to public funds or did they relate to general pre-Covid-19 issues?

Mr Nqola asked about the effects of the Covid-19 lockdown on the email service and website. All departments had a hotline for urgent matters during lockdown. Did OPP have a hotline? The President had announced that there would be a move from level 4 to level 3 which would mean that there could be more staff in the offices. Was the OPP ready to welcome additional staff with PPEs, etc? The Department of Public Works had said that it was securing buildings of the state. How far had PP gone with securing offices hosted in state buildings?

Mr W Horn (DA) also wished to address the last two litigations with judgements against the PP: the President’s case and the case of the Commissioner of Revenue versus the PP. Media reports had informed Members that the PP was intending to access the Constitutional Court directly in relation to the two cases mentioned. What was the position? Was that indeed the case and, if so, had the PP been given permission to approach the Constitutional Court directly?

He noted that previously the quality aspects of reports had rested with the Chief Operating Officer but that position was vacant and so the Committee would like to know who was addressing quality and legal integrity. What had happened to the turnaround strategy? In previous years, the development and implementation of a turnaround strategy was part of the PP’s strategic planning and it was to be fully implemented in 20/21, but it had been completely removed as a strategy. The turnaround had been specifically designed to deal with security, ICT issues and the lack of a case management system.

Mr Horn recalled that the Committee had been told in the 2018/19 report that 560 cases of 729 cases older that two years had been finalised. What had happened to the 169 cases that had been older than two years at the time? How many had been finalised? Now there was a new target of finalising 80% of cases older than two years by March 2021. How many cases older than two years were currently on the books? The Vrede Dairy issue was older than two years. In the light of comments by the Portfolio Committee in the previous Parliament, the PP had undertaken to go back and look into the involvement of politicians in the matter. A year ago, the Committee had been told that the new report was nearly finalised but it still had not been released. What was the status of that report and when would it be released?

He pointed out that previously the former DPP had been in charge of training. Who was now in charge of training? There was a revolving door of personnel at OPP so training was very important.
Regarding the Covid-19 situation, at what level did the CEO envisage the OPP would be able to accept walk-in clients? It was a matter of accessibility. The employment of the CEO and COO had been terminated. Had there been settlements with them and how much had it cost the PP or was there ongoing labour action? He also asked for details as to how many provincial representatives, senior managers and investigators were under suspension, for how long they had been suspended and who was dealing with the matter. If the cases had been outsourced, could he have a report of the costs? He asked for the costs of all outsourced labour-related matters since the PP had taken office.

Mr R Dyantyi (ANC) thanked the PP and her team for a comprehensive presentation. The Acting CEO had corrected a few errors in the document. However, there was another error on page 7 where the heading in the Foreword referred to the CEO but she was actually the Acting CEO. A number of similar errors occurred throughout the document.

He noted that the PP had said that she was halfway through her term. It might be a missed opportunity if she did not review her progress. Had the PP sat down with her team and reviewed the strategic plan? He was missing that review. The PP had said that she placed a lot of emphasis on outcomes and impacts and he wanted to know if that was coming through in her work. In 2023, the Committee would want to look at the legacy for the Office. The person in an institution was not usually remembered but the institution was remembered. The review should be different from a simple annual report. The purpose of the presentation that day should have shown the PP’s proposals, her plans and her prayers for what she was going to do in the future. It should be different from the Annual Report that would come in October.

Mr Dyantyi pointed out that the Strategic Plan referred to the intention to finalise 10 caseloads per investigator. What was the ratio of cases to investigators? How much work did an investigator have? That would help him to understand the pressure that the office might be under. He liked the risk register but one risk had not been included - that of remedial action and the increasing litigation costs. That was a risk. What would the plan be to deal with that risk? The PP and Acting CEO might want to pick up that paragraph and bring it back in October. What was the magic in 50 reports as an outcome? Why 50? She was playing the numbers game. How was one to measure impact?

The DPP had mentioned the Department of Home Affairs but he believed that there needed to be a focus on systemic investigations in order to understand the situation. The OPP could not repeat the same thing across various departments with the limited resources it had. He was happy that the PP had identified the bulk of things to be reviewed. A lot of work would have to done. The PP was saying the 17% cut by National Treasury meant that the OPP could not do certain things. He thought that the Committee should engage with National Treasury about taking the R58 million from elsewhere. The issue of the electronic case management had been put on the backburner. There was no KPA to show how the PP would deal with it. It had to be escalated. The OPP would not be able to do certain things but Covid-19 had brought the need for IT systems to the fore. The PP should show the Portfolio Committee what the R58 million would force the OPP to cut from its programme.

Mr Horn asked for more detail about the personal cost order against the PP that had been determined by the Constitutional Court. Had it been settled? If crowdfunding had been used, how much had that source of funding contributed to the total cost? When the PP had taken office, she had informed SA that consultants would be something of the past. What was the R10 million in the budget for a “subject expert" for? Was it another name for a consultant? R10 million was allocated for the case management system but Mr Mahindra Moodley, who was developing the system, was a Security Service Agency contact. In addition, there was an ongoing charge of R1 million per year. Why was the PP paying for SSA agents in the office? Surely the SSA should cover Mr Moodley’s costs?

Adv Mkhwebane informed Adv Swart that the 158 complaints received during Covid-19 did not all relate to Covid-19. Only 16 complaints related to Covid-19. The Complaints Executive Manager had been working from home, registering cases and allocating temporary case numbers as the staff were not in the office. Violation of section 217 of the Constitution and irregular expenditure was a serious concern that she would address when she presented the budget to the Committee.

Sanitation and access to water dealt with a person’s socio-economic rights and the PP would work with Prof Bongani Majola, Chairperson of the South African Human Rights Commission (HRC) on those issues. The OPP had a memorandum of understanding with the HRC. She confirmed that her office had not been consulted regarding the National Command Council (NCC) on the drafting of regulations. However, the Heads of Chapter 9, 11 and 13 Institutions were continuing to meet and the Chairperson of the Forum, Glen Mashinini, Chairperson of the IEC, had been tasked to tell the NCC that the institutions supporting democracy were seeing violations of the Constitution, which was not suspended during lockdown. Mr Mashinini had written a letter to the Executive so that the institutions could be engaged and support constitutional democracy. Some institutions were engaged by the NCC when necessary.

Adv Mkhwebane stated that she had informed the Committee of the proposed budget cuts but she had already written to National Treasury stating why the budget cuts were not acceptable. She would share the letter written to National Treasury with Committee Members. As far as labour issues were concerned, several of the employees had violated internal policies of PP so there would be internal hearings and findings. It was a matter of discipline. The Acting CEO would respond on the matter.

Adv Mkhwebane stated that the budget did not specifically budget for litigation as it was not a core business. Litigation fell under Goods & Services, and specifically consultants, etc. as the funds were for professional fees. It was portrayed as if the OPP was the only institution that faced litigation. She had checked other institutions that reported to the Portfolio Committee on Justice and Correctional Services. The Department of Justice and Correctional Services (DoJ&CD) spent R1.8 billion on litigation; the SIU spent R21million, up from R7.5 million; the South African Police Services spent R300 million on legal services. Home Affairs did not report to that Committee but it spent R1.9 billion on legal services and that was not its core business. She needed to point out that it was part of the process of democracy that anyone could take the OPP on review. The Portfolio Committee could also compare the previous PPs reports with the current PP’s report to check for themselves whether the PP had done her part. She had simply investigated, checked what had happened, what should have happened, what prescription had been violated and what remedial action should be followed.

She responded to Adv Swart’s question on the issue of Bosasa and the three judges that had sat on the matter. Again it was an issue of comparisons. The same Judge President had issued a very different judgement on the powers of the PP in another matter compared to what the Judge President had said in the recent case, but she would not go into details as far as those matters were concerned. The SARS matter was questioning the mandate of the OPP as per the Constitution and comparing that to national legislation. The Member knew that the Constitution was the supreme law. The matters would be taken on appeal as another court might find differently. The perception that the PP received negative mentions by the judges was not the issue as people should focus on the law and not on comments.

Adv Mkhwebane told Mr Hendricks that her staff had been working at home during the lockdown, especially most of the investigators. She had a schedule for the employees returning to work and would share the schedule with the Committee. 95% of cases that her office dealt with impacted people at grassroots on matters such as access to water. It was good that he had mentioned her work in Masiphumelele. As he knew, she was also working with the Ruimsig community assisting 64 families that had been left destitute after government had placed them in makeshift tents in 2016 after they had been evicted from a privately owned plot in Ruimsig. The matter of the sewerage spillage would have to be taken up with the HRC because the PP excelled in interventions. The DPP was responsible for that work.

Adv Mkhwebane thanked Ms Maseko-Jele for her words of support. A reduction in complaints was the intention of the PP Vision 2023. People should not approach the OPP. The OPP should only be approached as a last resort. The OPP should not do the work of public servants but should only intervene in issues of maladministration, undue delays and the abuse of power. Concerning the budget, she could confirm that she had pleaded with National Treasury not to make the cut but the Committee could support her in that matter. She had a plan detailing all processes related to the Covid-19 situation that she would implement in the office which she could share with the Committee. The PP stated that the presentation contained details of what had been done in respect of addressing the situation. She was pleased that Ms Maseko-Jele agreed that one would face litigation challenges in a maturing democracy.

Addressing the question on staffing, the PP explained that the CEO had resigned at the end of January and so the CFO was acting CEO and the Senior Manager: Finance was acting in the CFO’s position. Initially there had been too few applicants for the CEO’s position and so the closing date had been extended. The OPP would be interviewing for a CEO by the end of May 2020. She would also be holding further interviews for the Chief Operating Officer. The candidate who had been offered the position of Chief Operating Officer had not taken up the post.

She pointed out that it was the task of senior managers in government to undertake quality assurance. The DPP was also assisting with quality assurance. She added that the OPP employed a sign language interpreter for all roadshows.

The PP stated that her office would email the list of errors in the Annual Performance Plan to the Committee. She explained that a lot of senior investigators had laptops and had accessed work from home but all the investigators would go into the office from Monday so that they could access manual files. Regarding roadshows, she agreed that the first quarter had been impacted by Covid-19 but her office would keep the plan as it was and would have more visual engagements and would engage with the SABC and community radio stations where they could present the information in vernacular languages. She would amend the technical descriptor on the APP. One server had crashed recently but that problem had been resolved as the landlord and the Department of Public Works (DPW) had put in a generator.

The PP told Adv Breytenbach that the DPP would explain her involvement as she was doing a lot. She explained that the target of 7 000 cases had been removed because her office received more than 7 000 cases and the focus was on systemic investigations from that point onward and the intention was to do away with individual complaints. The intention was to set up memoranda of understanding with departments and complainants would be referred to the relevant department. The OPP would monitor to ensure the person was assisted by the relevant departments.

Outreach would be through community radio and SABC radio and her office could utilise the line item budget for other items. In respect to procurement-related issues, she had found situations where prices had been exponentially increased, e.g. border line fence in Limpopo erected by the Department of Public Works, the cost of PPEs, such as the cost of masks where one could buy in bulk for R15 but individual masks cost R30. Sometimes government departments did not obtain value for money. Government should look into the issue because she knew of the procurement of PPEs that had cost up to R363 million with the inflated prices. It was difficult for her to address with the limited capacity of her office.

On the Mokgoto matter, the PP stated that the investigation was at an advanced stage but the challenge was to engage with the Reserve Bank Governor who had raised some concerns about the complaint. Litigation costs were part of what the PP was doing. She explained that she did not take anyone to court but she had to defend matters where there is an impact on the budget or powers of her office and that was where she was liable for costs. Some matters were not opposed, some were internally addressed. She asked the CEO to address the trip to Turkey.

Adv Mkhwebane told Mr Nqola that she had already addressed the question of the scathing judgements. It had nothing to do with how the PP’s reports were drafted as they all went through a quality assurance process, but the challenge was sometimes on technical issues because the courts dealt with technical issues instead of just dealing what the PP had investigated and how the PP had attempted to deal with the person who was responsible for a situation. In respect of the ethical and developmental state, the PP would refer to the prescripts or policies relating to ethics and the developmental mode and indicate where actions had violated the policy. That was all the PP did. If a matter related to finance, she referred to the Public Finance Management Act and showed where the Act had been violated. When she had to refer someone to an institution, she made sure that she referred the person to the relevant institution.

The PP assured the Committee that the acting positions would be filled soon. As far as the suspended officials were concerned, she had re-arranged senior managers to cover the suspended managers. In terms of the Public Protector Act, the PP could do mediation and conciliation and that was what the DPP was doing. She was willing to share her response to the Speaker in respect of the complaints brought by the PSA.

She declared that her team had a plan to welcome staff when the country went to level 3 and had put measures in place. The staff and unions had been consulted. The OPP would provide sanitisers, masks and would maintain social distancing. DPW had identified offices for the PP in Limpopo and the Eastern Cape which would save a lot of money, but the PP did not have the resources to renovate offices at the time.

She informed Mr Horn that the PP had approached the Constitutional Court regarding the mandate of the PP and whether the PP, when taking remedial action, could refer a matter to other institutions which would be obligated to assist the PP in order to ensure that there was good governance. She had also wanted to address the issue of personal costs and the requirements for a person to be subjected to personal costs. She had already explained that senior managers plus the Chief of Staff and the DPP, as well as the legal staff or research staff, when relevant, engaged in quality assurance.

The turnaround strategy that had been planned had now been achieved and so was removed from the Strategic Plan. She had engaged the Department of Public Service Administration (DPSA) to do job evaluations for the support staff. The DPSA had assisted with the structure of her office and she had approached the Minister of Finance regarding the few changes necessary to the structure of the staff organogram.

The PP added that the Security Services Agency (SSA) was going to be paid to develop the case management system. The SSA was requested to advise on the security of the system used by the PP.

Of the 169 cases older than two years, the PP assured Mr Horn that 90% of the cases had been addressed. She would supply details of the progress in writing. There were no cases going back to 2012/13 or to 2013/4 so the OPP was starting with a clean slate and only dealing with cases from her term of office. The PP would continue to ensure that there were no cases that lasted longer than two years as she did not want to be accused of not ensuring the speedy finalisation of cases.

In respect of the workload, there were many files per investigator so the caseload was very high and there was a lot of work. In 2017/18, the total caseload was 18 330 and the total number of investigators was 130, so each had a caseload of 141 cases per annum. In 2018/19, the total caseload was 14 194 and the total number of investigators was 151 as additional investigators had been hired, and so the total caseload per investigator was 94 cases. Currently the senior investigators had more than 20 complex cases and they had to investigate and analyse, so it was very difficult.

The PP asked the CEO to respond to the question of who was responsible for training but added that on-the-job training was the responsibility of each senior manager. She could not say when walk-in clients would be accepted as the OPP was not accepting walk-in clients. The office would accept walk-in clients when it received advice that it was safe to do that. She reminded Members that her office could still receive complaints via telephone and email. A toll free number would be available for complainants from the following Monday.

The PP did not have the total amount spent on labour costs but would submit that to the Committee Secretary. She had capable executive managers and the workload was manageable. Concerning consultants, the PP explained that the term “consultants” in government referred to anyone who was paid professional fees, such as auditors and attorneys. When she had taken up office, she had said that in terms of section 3(7) of the Public Protector’s Act, she would not outsource investigations to consultants, so she was going to get expert consultants to advise, not to investigate. For example, there was a case relating to Medupi but the PP did not have an expert on the matter so she would bring in an expert to advise.
                                                                                           
Her court costs had been paid in full. The public had paid for her costs as she had being doing work for the public. She thanked all those who had contributed but she had not been involved in collecting. She had just given the bill of R260 000 to those who were collecting on her behalf and the amount had been paid in full from donations.

The PP told Mr Dyantyi that her office was learning about the impact of the pillars. The errors in the Annual Performance Plan had occurred as her office had used internal people to check the Report. She knew that the Committee was very strict on editing but she had been trying to save money. She would have to get external editing as she could not afford to have errors in the document. If a specialist did the job, that person was paid and held accountable for errors. She assured Mr Dyantyi that she had changed the lives of a lot of people in SA. He should, in particular, refer to her reports on matters relating to water. She would go back and check whether her office was on track with the impact that she intended to make and with changing the lives of people. She said that in future she would make promises and not dwell on achievements in the Performance Plan.

She informed the Committee that the Acting CEO and the DPP had come up with a disaster recovery plan the previous day when they had worked until very late and they would report on that.

The PP explained that she was intending to work much more closely with the Forum of South Africa’s Directors-General (FOSAD) when she issued reports. The intention of a report was to right the wrongs and to prevent re-occurrence. Public servants should understand that reports were not issued because the PP was spiteful but to correct matters and to make sure that going forward that matter was not repeated. She accepted that the target of 50 cases did not address quality. As most reports dealt with irregular procurements, she would focus on systemic investigations and the impact of the report so she did not want the Committee to ask her if she had achieved numbers.

Referring to the proposed cut of the budget, the PP stated that she would share the presentation that she had made to National Treasury. The budget cut would have an impact on contractual obligations and so employees would come to work but would have no access to Microsoft, emails and SAP IT systems and there would for which her office had contractual commitments and there would be no budget to pay for security for the staff. She left it to the Portfolio Committee to assist with the budget.

Referring to the electronic case management system, she had a consultant who was not going to charge for a basic web-based electronic case management system and as the office built on that in the outer years, she would request additional funding. She was having a Referral Application developed that would advise people where they should lodge their complaints. That would reduce the number of people complaining to the PP.

The DPP responded to Adv Swart about the complaints about water and sanitation and a possible systemic investigation. The Administrative Justice and Service Delivery (AJSD) branch had had a discussion with the HRC. The HRC was there for the PP and would collaborate, so the PP would refer the complaints to the HRC and they could investigate together.

The DPP explained that AJSD was at the centre of dealing with cases at grassroots and cases of maladministration. It carried the majority of cases that were lodged with the PP. She had not divulged all her delegations. She assured Adv Breytenbach that she was a member of the task team register, a member of the Dashboard and a member of the leadership meetings – all of which were chaired by the PP. The meetings sat weekly and monthly and discussed all cases lodged with the PP, including matters of good government and integrity, so she had the opportunity to comment on the matters. Members of the OPP had a culture of consulting each other and she had been asked for her opinion on a number of cases. The Communication and Stakeholder Management branch assessed all matters and she was responsible for that branch. AJSD dealt with maladministration and failure to act and she was responsible for oversight of that branch. She had chaired two alternative dispute investigations which she had turned into full investigations and she was overseeing those matters. She was overseeing the Alexander Renewal Project.

Regarding Constitutional Court outcomes, she was strengthening internal systems so that the PP could deal with the substantive issues raised by the courts, to show the protocol that cases went through and to improve quality assurance. Senior investigators had to strengthen mentoring and coaching of the assistant investigators. She had strengthened the system of file inspection and timesheets which would have to be checked by senior investigators and management so that people could prove the work that they had done. She had only been in office for just over three months, so it was early days but she had been exposed to all aspects of the work. Her hands were full and she had done a considerable amount of work.

The DPP said that the outreach programmes would use digital platforms to reach out to rural areas, including community radio stations and community newspapers, Facebook, Twitter, etc. She told Mr Nqola that the Alternate Dispute Resolution (ADR) cases that had been delegated to her were external matters, i.e. complaints from the public, etc. Sometimes the DPP could resolve cases of dispute via the ADR. She did not deal with labour matters. Those hearings were chaired by the PP as the senior official.

She said that the PP intended building a cooperative relationship with FOSAD. The PP wanted to issue remedial actions that were implementable and that required an extensive consultative process with government but the intention was also that the PP’s reports could be adopted on a higher level. The PP had an understanding with the HRC that, on matters of common interest, the HRC would approach the court on behalf of the PP to ensure the implementation of reports as the PP did not have the budget to go to court. The DPP stated that systemic reports would assist the PP to draft more qualitative reports and to make an impact. The Department of Home Affairs was cooperating in that process.

The recovery plan focused on recovering the loss of time, although some investigators had been working at home, others could not work as the OPP had not given them laptops. The PP needed to buy laptops for those investigators so that they could work at home. The amount of time spent and work done at home would be assessed and work lagging behind would be prioritised. Executive managers had developed clear plans and timeframes to catch up. There would be a review of work every month to check on the achievement of targets.

The Acting CEO explained that it was common cause where policies had been violated, management had the responsibility to discipline employees. About five employees were on suspension but she could not divulge information and requested the indulgence of the Committee. The dispute resolution that the DPP was responsible for related to complainants, not employees.

She had no information about officials that had been infected. The PPEs had had an impact on the budget and as it had not been foreseen and the sanitisers would have to be regularly re-prioritised, the PP had indicated that it was under budget pressures. Regarding re-prioritisation of the budget, she assured the Committee that there was no room to play with so the PP had to wait and see as the decision would come from the Minister of Finance and National Treasury. The OPP had a committee on financial misconduct which was currently handing the case of the trip to Turkey that had not taken place. She added that R27 000 had been spent on thermometers.

The Acting CEO addressed the litigation strategy. Not all matters were challenged but those that were likely to have an impact on the mandate of the PP were challenged and those cases were then outsourced to legal professionals. In the current financial year, 15 cases were being taken on review so not all cases were challenged.

She corrected herself in respect of the Turkey trip, saying that the PP had received a refund. Mr Dyantji had referred to a paragraph in the report that he thought could have been omitted. However, the PP had been instructed by National Treasury to add it to the report. It was not required under normal circumstances. The Report also contained an analysis of cases. She anticipated that at level 2 walk-ins would be permitted but she would be guided by legislation. Two cell phone numbers had been provided for complainants during lockdown and the PP would have a toll-free line from the coming week. She acknowledged the error on page 7 of the report.

Adv Swart urged the PP to take speedy action on the water, sanitation, malnutrition issues and persons going without food. The lack of food was having an impact on people needing medication for HIV/AIDS and TB. People could not take their medication if they did not have food. Up to 500 people were dying per day because of issues other than Covid-19. He appreciated that the PP would be working with the HRC but he had to stress that it was an extremely urgent matter. The PP had said that a letter had been sent to the NCC on behalf of Chapter 9 institutions. He asked for a copy of the response to that letter as the Committee was not privy to the NCC. It was a matter of concern that Chapter 9 institutions were not being fully utilised at the time.

Adv Swart was fully appreciative of the fact that litigation costs were rising and that was because the PP report was binding, so he was not surprised at the increase in costs. He was concerned about the quality of the findings of the PP reports that led to scathing comments by judges. The findings were not adequately written up by the team.

Mr Dyantyi noted the high cost of litigations across all departments. The Committee had started to deal with 22 identified issues and one of those was the high cost of litigation in every department or entity. The reference to the Department of Justice and Constitutional Development was inappropriate. High costs in that Department were as a result of the State Attorney Office being located in that Department and so there could not be comparisons. The PP had to deal with the issue in terms of quality assurance, even though he understood that some challenges would occur irrespective of quality. He wanted to make the point that the Committee’s concern about the high costs of litigation was not limited to the PP.

Adv Mkhwebane promised that she would send the written responses as agreed on Covid-19 preparations and would follow up with the HRC on the urgent matters. She would provide an update on the letter sent to the NCC when she received a response. She pleaded with the Portfolio Committee to contact National Treasury to assist with budgetary issues.

Closing remarks
The Chairperson was pleased that the discussions were fruitful but he would await the reports on cases lasting more than two years. He required a copy of the motivation sent to the National Treasury and he wanted a report on potential savings that could be made because of the Covid-19 situation. For example, the PP would have made savings on travelling since most of the PP staff were working at home. The country needed to save each and every cent. The Portfolio Committee did not generally support the cutting of baseline budgets of Chapter Nine institutions but the country was in a desperate situation and the money had to be found somewhere. Potential savings had to be identified. The discussions had revealed a need for the Committee to create space for a discussion on the grassroots issues of water and sanitation, etc. which were bread and butter issues affecting most of the poor people. The Committee had to create space for more robust discussion. Over time the governance issues had overshadowed other issues in the PP’s engagement with the Committee. It was necessary to profile the work that the PP did for the poor people in the country.

He thanked the PP for the engagement and assured her that the Portfolio Committee wanted to impact positively on the work of the entities that reported to the Committee.

The meeting was adjourned.