Justice Budget: input from the Public Protector

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT AD HOC COMMITTEE
10 June 2004
JUSTICE BUDGET: INPUT FROM THE PUBLIC PROTECTOR

Chairperson : Ms F Chohan-Khota (ANC)

Documents handed out
Office of the Public Protector Income Statement 2003-2004
Public Protector presentation

SUMMARY
The Office of the Public Protector presented its budget and administration report. The challenge of encouraging whistleblowers was emphasised and it was noted that the Public Protector had adopted a proactive approach to investigations . The Committee asked why there were budget roll-overs and why the Deputy Public Protector had not been appointed. The Committee also raised concerns about the hosting of the Public Protector's website outside the government website domain.

MINUTES
Department presentation
Mr Ashley Rampersadh (Director Corporate Affairs Public Protector) presented the financial aspects of the presentation.

Adv Lawrence Mushwana (The Public Protector) then went on to emphasise that the Public Protector intended to focus on the root causes of the complaints to prevent them recurring. The purpose of the Protected Disclosures Act was defeated if the identity of whistleblowers became known. Where whistleblowers became known, disciplinary action had been taken against them. Whistleblowers were thus reluctant to come forward. Adv Mushwana stated that employers must wait for the investigations by the Public Protector to be completed before taking any disciplinary action against whistleblowers.

The Chairperson commented that the Public Protector should make it a priority that the identity of whistleblowers was not known. A report should be submitted to the Committee on what action had been taken to prevent leakages.

Adv Mushwana stated that he had already appointed two advocates to compile a report on the whistleblower problem. Members of Parliament had wasted the time and resources of the Public Protector by bringing matters that are beyond the jurisdiction of the Public Protector. MPs should instead make the public aware of the mandate of the Office of the Public Protector and assist the public in bringing matters to the Public Protector.

The Chairperson said that the Public Protector must not be used for political games and should draft internal guidelines to filter out frivolous claims.

Discussion
Mr J Jeffery (ANC) asked what exactly the Public Protector's media strategy was. He commented that more could have been done to explain to the public what type of cases should come before the Public Protector. He commented that the report showed a disparity of resources in the provincial offices. The North West provincial office was well resourced with more investigators. He asked why there was this disparity. Further, a large number of complaints were from the North West. He asked why this was the case. Was any effort made to share resources on a provincial level with other Chapter 9 institutions?

Mr Solomons (ANC) commented that the Public Protector had enough financial resources to fulfil their mandate because there had been a roll-over of funds. He wanted to know why there was a rollover.

Mr M Malahlela (ANC) asked what the Public Protector's approach to donor funding was. He wanted to know what input the Office had on donor programmes.

The Chair commented that in future the Public Protector must give the Committee an idea of the budget from the time of the establishment of the Office in 1995 to the present date. She asked by how much the budget had increased from the previous budget. What were the Office's priorities for the current budget? She wanted to know if the internal audit had been completed. Further, was the interest from the savings account accrued to the Office of the Public Protector or to the Department of Justice?

The Chair commented that the Public Protector must address the appointment of the Deputy Public Protector. The position had been already budgeted for so what was causing the delay in the appointment and was this postion crucial to the functioning of the Office? She asked what the full staff complement was and the percentage of the budget that was spent on personnel expenditure. She wanted to know how many vacancies the Office of the Public Protector had at any given time. She also asked what kind of problems the unfilled positions created.

The Chair asked for a race and gender personnel breakdown. She wanted to know what the skills audit had revealed. She asked where the Office had fallen short on skills and what the skills competency levels were. She asked whether the new structures met the skills deficiency. She asked how old the case backlog was. She commented that in addition to the new cases there would be a substantial increase in backlog in the future. She asked whether this was the Public Protector's assessment as well and if it was, what the Public Protector was going to do about it.

The Chair wanted to know how the Specialised Investigation Unit would operate differently. What was the Public Protector's thinking in setting up the Specialised Investigation Unit? She commented that the Public Protector must give some priority to collaboration between the Office of the Public Protector and other Chapter 9 Institutions.

Adv Mushwana responded that there had been no agreement as yet to any collaboration between the Office of the Public Protector and other Chapter 9 institutions. Nothing concrete had emanated from the discussions. He said that the difficulty had been finding time suitable for all parties to meet. EU donor funding envisaged collaboration between the Chapter 9 institutions.

Adv Mushwana responded that the Office had established a system that could establish how old a case was. The Office did not want to have any case more than three years old. He stated that delays in finalizing cases were caused by the loss of files.

Adv Mushwana stated that a problem that had not been highlighted in the report was that of personnel employed in the department that had been seconded to the Public Protector. Personnel employed in the Department of Justice were given certain benefits. In order for these persons to take up permanent positions in the Office of the Public Protector they had to resign from the Department of Justice. As a result these persons lost pension benefits. This was a serious technical problem that needed to be addressed.

Mr Rampersadh commented that at the time of setting up the Office in 1995 there were only 12 personnel. In order to carry out its mandate the Office approached the Department of Justice for personnel.

Adv Mushwana responded that the initial problem with the appointment of the Deputy Public Protector was procedural. The Department of Justice was delaying the appointment of the Deputy Public Protector. Some progress had been made. Adv Mushwana stated that the Deputy Public Protector was to be the CEO of the Office. The Deputy Public Protector must be administratively attuned. The core function of the Public Protector was investigations. All reports conducted by the Public Protector must be finalized.

The EU donor funding had a lot of tags attached with it such as how the money would be used, where it would be banked, the appointment of staff not answerable to the Public Protector. The donors had even suggested that the Public Protector collaborate with certain NGOs that expressed certain political agendas and that the Public Protector should target certain government departments. Adv Mushwana stated that the Office would rather do without donor funding that was conditional

Adv Mushwana stated that the roll-over was caused by the non-appointment of the Deputy Public Protector. The position had been budgeted for but because no one had been appointed the money had rolled over from year to year.

The Chair commented that when the post was arranged, an amendment of the Act had not been foreseen. This was probably why the money had been made available first before the post had been filled.

Adv Mushwana responded that the Office was in the process of creating a media strategy. He stated that the North West province was problematic because the structures there had remained unchanged. It was not possible to expel the personnel in the North West office because of their long service. This was also why they earned more than others. The North West province had a lot of cases because files on non-jurisdictional matters had been opened. This created a false impression.

Mr Rampersadh responded that the roll-overs were caused by the non-appointment of the Deputy Public Protector. Salary adjustments had taken longer than anticipated resulting in funds sitting in the bank and accruing interest. He stated that the National Treasury had at one time claimed the interest. The interest would be used by the Public Protector for the outreach programmes. The Auditor-General was happy with the internal audit.

Mr Rampersadh responded that 72 to 74% of the budget went towards personnel expenditure. The larger portion of the staff component was made up of legal professionals.

The Chairperson asked if the Auditor General was happy with those figures.

Mr Rampersadh stated that the National Treasury found those high figures problematic. National Treasury had asked why the bulk of the budget was spent on personnel expenditure.

Adv Mushwana commented that the high expenditure on personnel was an issue that needs to be tackled.

Mr Rampersadh stated that a skills development facilitator would ensure that the skills gap is lessened; a full report would be submitted.

Mr Mushwana said that there were sensitive cases that could not be given to any staff in the office. In such cases the Specialised Investigative Unit would take an active interest. Cases involving high ranking officials, because of their nature, were finalised much quicker.

The Chairperson suggested that the issue of protected disclosures must be brought into the Specialised Investigative Unit.

Ms Fiona Johnson (Consultant to the Public Protector) said that there had been a significant improvement in backlogs. The process was still not clear to everyone in the office. Once everyone understood the process the new system would increase efficiency. After the skills audit it was found necessary to elevate some persons to managerial positions so they could lead and manage and be in a position to execute the vision and mission of the Public Protector.

Dr J Delport (DA) asked whether the Office would have the financial means and personnel to tackle endemic issues. For example would the Office have experts to seek out root causes in pensions? He asked whether the Office was equipped to tackle the huge problems with which the Office was faced.

Mr C Burgess (ID) wanted clarity on the Income Statement. He wanted to know what the performance remuneration was. He also wanted to know to whom the professional contract work was contracted out.

Mr J Jeffery (ANC) commented that the problems in the North West Province office were problems of inheritance. He asked whether the North West office would be restructured and if the quality of its staff would be addressed. He wanted to know where the line was drawn between non-jurisdictional and jurisdictional matters. He asked what communication systems were in place and whether there were any criteria for measuring investigations. Further, how many municipalities had appointed an ombudsman?

Mr Solomons commented that the majority of cases were complaints. He said that the Public Protector's vision was to be proactive and to initiate investigations. He asked how many investigations had been initiated.

Mr Landers asked if it was possible to alert Parliament's Home Affairs Committee of the problem of the deletion of thousands of marriages in the Home Affairs registry.

The Chairperson wanted to know on average how long it took to deal with a case. She said that the Public Protector must give a report of how efficient the Office was in resolving complaints. She commented that the Public Protector must instil confidence in the public through the Office's turn-around times. She asked why the Public Protector wanted to host its website outside the government website. She also wanted to know the Public Protector's policy where people were investigated by the police.

Adv Mushwana responded that where people were investigated by the police, the Public Protector did not take any action. Doing so would duplicate investigations. He commented that MPs tend to lodge duplicate investigations for publicity sake. The issue of hosting the Office's website outside the government website had not been finalised.

Mr Rampersadh stated that the website was ready for launching. It would be registered on a .org domain. This would give the Office impartiality and peace of mind to the complainant.

The Chairperson said that she was not happy with the website been hosted outside the government website. The Public Protector should enhance state institutions not alienate itself from them. The Public Protector was part of the state and is supposed to work together with government to improve bureaucracy.

Adv Mushwana noted that the Public Protector needed to improve its relationship with Parliament. He stated that the Home Affairs problem needed to be tackled. Proactive investigations had begun but had not been finalised. That was why they were not included in the report. He stated that proactive investigations were very effective.

Adv Mushwana said that Cape Town municipality had appointed an ombudsman. An ombudsman helped to deal with problems internally. The Public Protector should be used as a last resort. He said that he encouraged the appointment of an ombudsman. The military had appointed an ombudsman attached to the Office of the Public Protector.

Adv Mushwana responded that the Office did not have all the resources to carry out pensions investigations satisfactorily.

Mr Rampersadh stated that the performance remuneration was paid to all staff members. He said professional and special services were work that was contracted out. Examples were the internal audit and the procurement of goods.

The meeting was adjourned