Public Protector 2023/24 Annual Performance Plan, with Deputy Minister
Justice and Constitutional Development
03 May 2023
Chairperson: Mr G Magwanishe (ANC)
Meeting Summary
The Portfolio Committee on Justice and Correctional Services was briefed by the Public Protector of South Africa (PPSA) on its 2023/24 Annual Performance Plan (APP).
Members were surprised to hear that only 3% of the Public Protector’s (PP) remedial actions have been fully implemented by state organs in the two years between April 2021 and March of this year. 62% were completely ignored, 26% partially implemented the recommended action, and 9% of the remedial action reports were currently under judicial review.
The Office indicated that measures have been taken to ensure increased compliance by state organs, such as the signing of memoranda of understanding with the Premiers of each province. This measure, she highlighted, has seen Premiers be more responsive to allegation letters and subsequent reports sent by the PP.
Moreover, the PPSA has begun to lobby for other provinces to establish integrity committees within their Premier’s offices, as has been done in Gauteng, which interacts with the PP’s reports and advises the Premier on, among other things, how best to implement the recommended remedial action.
The Acting Public Protector told the Committee that her office had written a letter to the suspended PP, Adv Busisiwe Mkhwebane, the Speaker and the Chairperson of the Section 194 Committee, indicating that it was seeking advice on the payment of the PP’s outstanding invoices for her legal fees.
Furthermore, the PPSA stated that an additional amount of R4.4 million has been availed for the conclusion of the Inquiry, with conditions. This money was obtained by the PPSA following approval from the National Treasury to tap into the surplus fund that it had previously approved for the 2021-22 financial year.
Members further heard that with this R4.4 million allocation, the PPSA would have spent close to R30 million, in total, on the payment of Adv Mkhwebane’s legal fees during the entire proceedings. They, like the PPSA, hoped that this amount would be enough to finally conclude the hearings of the Inquiry, which have been ongoing since July of last year.
The PPSA also indicated that the Treasury should consider establishing a vote for Chapter 9 Institutions to receive their funds directly, as the continued reliance on the R357.9 million baseline allocation from the Department of Justice and Constitutional Development was both inadequate to cover the institution’s financial needs, and reduced its independence.
Meeting report
The Chairperson mentioned that the PPSA’s briefing would be moved forward to 12:30 instead of 15:00, as it managed to conclude the earlier engagement with the Department of Justice and Constitutional Development (CoJ & CD). Thereafter, he handed over to the Acting PP, for her opening remarks.
Opening Remarks by the Acting PP
Adv Kholeka Gcaleka, Acting PP, indicated that the presentation outlined the PPSA’s predetermined objectives, which were contextualised by the medium-term strategic framework.
In its last appearance before the Committee, the PPSA highlighted opportunities that it believed would position it to be fit for purpose, one of which was the improvement on the quality of its reports. In line with this objective, it has since finalised the review of its investigation standard operating procedures (SOP), for the purpose of the standardisation of its operations and responsibilities.
Furthermore, the PPSA also looked into the fact that many of the difficult decisions on investigations were taken by junior officials. This process has since been revised, with executive managers now having the discretion to delegate decisions on investigations to the chief investigating officers.
Work is currently underway to digitalise the processes of the institution, and train and develop staff to keep up with the 4th Industrial Revolution. One of these projects is the case management system.
A draft amendment bill is planned to be submitted to Parliament on 08 May 2023, which seeks to align the Public Protector Act (PPA), following the Constitutional Court (CC)’s judgement that made the PP’s remedial action binding.
To enhance its impact and improve relations with other stakeholders, the PPSA has entered into a number of collaborative agreements with provincial governments and legislatures across the country on outreach activities.
The organisational development study has recently been finalised, and contains a number of recommendations required by PPSA to perform core functions and improve its ability to deliver on its mandate, she indicated. Among other things, it proposes a strategic workforce analysis to address critical skills required and competency shortages.
She acknowledged the staff currently working in the PPSA for the work they have done for the institution, amidst the difficult climate it has faced in recent years.
Briefing by PPSA on its 2023/24 APP
Ms Thandi Sibanyoni, Chief Executive Officer, PPSA, and Mr Mfundo Mdingi, Chief Financial Officer, PPSA, took the Committee through PPSA’s 2023/24 APP.
Administrative targets: 2023/24
Ms Sibanyoni informed the Committee of PPSA’s achievements for the previous financial year, most notably, a clean audit opinion, and the implementation of an ICT system. Following that, she outlined the institution’s targets for the 2023/24 financial year, some of which were:
- Maintain a clean audit opinion
- The implementation of a CMS Self-Service Portal by 31 March 2024
- Finalise two business continuity plan monitoring reports by 31 March 2024
- Finalise 2000 cases through investigation and;
- Finalise 500 cases through advice given and/or assistance rendered by 31 March 2024
- Finalise 80% of cases within 6-12 months, depending on the complexity
- Execute 328 activities in the implementation plan of the integrated access and stakeholder strategy by 31 March 2024
She then highlighted that of the 4207 cases reported to the PPSA, 1704 of them related to maladministration within government departments and municipalities. The biggest culprits of the complaints were municipalities, the Department of Home Affairs, the Department of Labour, and the South African Police Services.
Financial budget: 2023/24
Mr Mdingi explained that the PPSA’s total allocation has decreased by 1% from R357.9 million in the 2022/23 financial year, to R357.2 million for 2023/24, with the majority of it being a R357 million baseline allocation from the DoJ&CD. The rest of the budget allocation is made up of interest income from the bank (R2.9 million) and other income (R177 000), such as bursary repayments. Thus, the total projected revenue budget for the financial year will be R360.4 million, he said.
Personnel costs for the financial year account for 75% of the total baseline allocation, while goods and services account for 22%.
With the limited budget, the PPSA currently cannot afford to fund the R15 million required for the filling of 22 critical positions in the institution, which will assist with the administrative work of investigations, he indicated. A further R2 million is needed for the skills development of current staff in relation to investigations.
(See Presentation)
Following the presentation, the Chairperson opened the floor for discussion.
Discussion
Dr W Newhoudt-Druchen (ANC) indicated that she would pose a few questions to the PPSA. One, she asked for an update on the money spent on the legal fees of the suspended PP at her impeachment inquiry, as it was previously raised that there were funding concerns.
Two, she asked if the PPSA made any follow-ups with departments that had not implemented its remedial action. Moreover, she asked if there was anything that the PPSA could do if its remedial actions were not implemented.
Three, she asked why the PPSA had taken time to submit the amendment of the PPA, particularly as it had been aware that the term of the 6th Administration of Parliament would soon elapse.
Four, she asked whether the long-standing security issues at the PPSA’s offices had been resolved or not.
Five, she asked if the PPSA had received the funds from its application at the Criminal Assets Recovery Account (CARA) Fund yet and if so, what it had done with them. If not, she asked what the reasons for this were.
Mr W Horn (DA) asked for the PPSA to clarify the differences between complaints, cases, and reports, as mentioned in the APP because in a previous meeting the institution distinguished between complaints of a complex nature and those that can be resolved through mediation or simple intervention. He noted that the differentiation was falling away, and if so, he asked how the PPSA planned to track the performance of matters previously seen as the subject of reports.
He applauded the PPSA for the successful development of the internal phase of the case management system. As part of its second phase, the PPSA has targeted introducing a functional self-service portal, which will also include a tracking portal, by the end of the year under review, he said. On this, he asked what progress has been made thus far and if the developers of the portal were on track to meet the target.
Thereafter, he asked what process the PPSA had in place to follow-up on the progress of its interventions in individual cases.
In his final question, he asked for the PPSA to elaborate on the number of remedial actions that have been taken on judicial review in comparison to previous years and whether there were specific targets in the APP to address this problem – in a previous meeting it was said that this was a growing trend.
The Chairperson asked how many years he was referring to.
Mr Horn stated that he was referring to the last three years. However, if the PPSA did not have the information on hand, he requested that it be answered in writing.
Ms N Maseko-Jele (ANC) applauded the PPSA for maintaining its clean audit for a successive financial year.
The biggest culprits in the lack of implementation of the remedial action were municipalities, the provincial departments, and the Department of Correctional Services (DCS). The lack of implementation by the former two concerned her, as they are where service delivery occurs.
She too thought that the amendment to the PPA would have been submitted to the Committee earlier by the DoJ & CD, and suggested that the department be called to account for this delay. The amendment would assist the PP in referring organs of the state or criminal prosecution for their lack of compliance, she said. She asked whether the department or its workers would take liability for contempt of not responding to the remedial action if this amendment were to pass in Parliament.
Certain indicators, she noted, such as the number of bilateral dialogues held with organs of the state on systemic challenges and the number of quarterly reports submitted to Parliament on the implementation of remedial action (which she said had assisted the Committee), had been removed by the PPSA in its APP. She asked why this had been the case. In addition, she asked what impact the increase in the percentages of the indicator for outreach activities, compared to previous years, have on this target.
Afterward, she asked that the PPSA inform the Committee on the status of the partnerships between it, the traditional leaders, and community-based organisations, as there has been an intention to advance collaboration on issues related to advocacy on the ground level.
She also asked how long the eleven reports had been on judicial review.
Adv G Breytenbach (DA) asked what the PPSA’s position was on the funding of the Section 194 Committee, and if additional funding would be made available in the future. If so, would the PPSA require assistance from the Committee on this, she asked.
Thereafter, she asked if the PP could indicate to whom she could address correspondence, to assist a Mr Ruben Govender, on a certain matter.
Mr R Dyantyi (ANC) asked what intervention plans the PPSA had to ensure the improvement in compliance by departments of its remedial action. He was pleased with the introduction of the indicator for quarterly reports on non-compliance with the remedial action.
In its APP, the PPSA stated that it would pressurise the DoJ&CD to make its submission of the PPA Amendment Bill, as it also addressed its funding shortfalls.
He then asked whether the PPSA regularly updated its risk register on emerging risks that it has assessed. He believed that this would assist the institution with minimising the damage that may be caused by, for instance, a disaster.
The Chairperson asked that the PP begin by answering the question on the reason for the change in the indicators.
Ms Sibanyoni clarified that the PPSA did not remove the indicators, instead, they, as well as a number of other activities (388) aligned with the implementation of the stakeholder management plan, had been consolidated. Some of the activities, she added, include the outreach clinics and the radio interviews done to communicate with members of the public.
Regarding the target on the quarterly reports submitted to Parliament, she mentioned that the PPSA moved it from the APP to its operational plan, because it felt that it was not a deliverable. All the reports were submitted by the PPSA in the previous financial year, and it will continue to do so every six months, as it did not believe doing so on a quarterly basis would be practical, she added.
In response to the question on the PPSA’s partnerships with traditional leaders and community-based organsations, she said that these partnerships were being formed to advocate for, as well as to promote, its services to communities. Through these partnerships, individuals will be able to lodge a complaint with the community stakeholders, who can then elevate it to the PPSA for its attention.
Referring to the question on the legal fees paid for the current PP, she confirmed that the PPSA has been funding the legal fees. Initially, the suspended PP and her legal team provided the PPSA with an estimate of R4.5 million, on the basis that the inquiry would be finalised by the end of September, however, due to the extension of the process, the costs escalated to over R25 million, with the office still having to fulfill the commitment of another R4 million plus – meaning that R30 million will be spent on the legal fees in total.
Due to the servicing of the suspended PP’s legal fees the institution had to suspend some of the payments for legal fees related to court orders issued against it, she told the Committee. Presently, the PPSA cannot afford to continue paying for the suspended PP’s legal fees as the current budget only caters to the bills that have accumulated since last year.
However, following engagements between the DoJ&CD and the National Treasury, the PPSA has received approval to tap into the surplus fund that the latter had previously approved for the 2021-22 financial year. Through this, the PPSA will make available R4.4 million for the conclusion of the Section 194 Inquiry.
On the question related to the security challenges faced at the PPSA’s offices, she indicated that the institution has since embarked on an audit of all of its offices across the country, to determine the level and extent of the security required. In certain offices, the PPSA opted to place burglar doors for security, while in others it has placed physical security personnel.
Despite those efforts, security remained a challenge, especially in the Phuthaditjhaba, which is located in an area that is difficult to secure. Efforts to secure alternative accommodation, with the assistance of the Department of Public Works, have failed thus far, and as a result, the PPSA is considering moving the office to Bethlehem.
She confirmed that the case management system had been fully developed and is operational. The PPSA has since worked to finalise the business case, within the next week, for the development of the self-service portal. The implementation of the system is scheduled for the second quarter of this financial year.
Regarding the question on the difference between the complaints, cases, and reports mentioned in the APP, she explained that a complaint is any matter that is referred to and assessed by the PPSA. Once the matter has been assessed, a case will be investigated. Not all the complaints received are investigated, as the office may not have the jurisdiction (in those cases the complainant will be referred to the correct institution), and there may be a long lag in time from when the incident occurred to when the complaint is laid, or a determination is made that they will not withstand legal scrutiny.
For every investigation conducted, a report will be produced. On average, the PPSA will spend one week dealing with a referral of a matter, as it has to conduct email and telephone communication with the relevant authority, she outlined. In its APP, the PPSA, she added, differentiated between complaints resolved through a formal investigation – which end up in either a closing report, intervention report, advisory report, or an alternative dispute resolution (ADR) settlement agreement – and those resolved without one.
The PPSA did not drop the target on the reports signed and had instead added on to those signed by the Public Protector.
In response to the question related to the PPSA receiving its funds through the department, she said that it continues to be a challenge for the institution. As an independent institution, it would be more efficient for it to obtain its own allocation from the National Treasury.
In a previous engagement, the PPSA indicated that there was never a deliberate allocation for the establishment of the PPSA, and as a result, the institution has only received an allocation based on its needs.
The continuous reliance on the DoJ&CD for its baseline allocation has affected the PPSA’s planning for each financial year, she pointed out. At times the PPSA is unable to procure services because it usually only receives R20 million from the DoJ&CD in November, December, or January. Initiating a procurement process in January does not provide the PPSA much time to finalise the process and commit the funds by the end of the financial year, which will require that it request the Treasury allow it to retain the unspent funds. The PPSA believed that Treasury should consider establishing a vote for Chapter 9 Institutions to receive their funds.
She confirmed that the PPSA did conduct risk assessments continuously and did have a risk register. Following the findings from a recent risk assessment done that the PPSA was not adequately prepared should there be another pandemic or disaster, the PPSA decided to develop a business continuity policy and plan.
Usually, once a risk register is finalised, a risk action plan is implemented and tracked on a quarterly basis, with subsequent interaction between the internal risk management team and business on the extent to which the plans have been implemented. A separate action log is kept for analysing emerging risks so that the institution is ready for any eventuality. In the future, the institution will provide training to its officials, so that they can incorporate risk mitigation in its operations.
Ms Nelisiwe Nkabinde, Acting Chief Operations Officer, PPSA, mentioned that the status of the implementation of the remedial action across the government for the previous financial year stood at 3%; those partly implemented at 26%; non-implementation at 62%; while reports under judicial review are at 9%.
To improve on this, the PPSA has implemented a multi-pronged approach: one, it has continuous engagements with the implicated state organ; two, it has established a special unit that focuses on following up the implementation of remedial action. She was pleased that the PPSA had seen positive results in its interventions.
Parliament, particularly the Speaker, has given attention to the lack of compliance, with many of the committees inviting the PPSA to engage with the relevant departments on the progress of their implementation or lack thereof, she said. Further engagements with committees would allow Members to understand the remedial action that needed to be taken on various matters and to hold the state organs to account for their non-action.
Internal systems have been developed by the PPSA, she pointed out, with lessons being taken from the courts on their various judgments, especially where they have highlighted issues relating to its procedures, rules, and implementation, to prevent its reports from being taken on review. In addition, the PPSA is still conducting its quality assurance, and before a report is issued, it engages with the affected state organ on the likely adverse findings that will be made on a matter.
Referring to the question on the status of the reports taken on judicial review, she said that a report remains on judicial review until a decision is made by the court. Where the state organ has not suspended the implementation of remedial action through a court action, the PPSA will follow-up on the progress of the implementation.
Adv Gcaleka, on the PP’s legal fees, indicated that the PPSA had originally budgeted R4.5 million for the entire process. In a letter written to Adv Mkhwebane, the Speaker and the Chairperson of the Section 194 Committee, the PPSA indicated that it was seeking advice on the outstanding invoices. Moreover, the PPSA stated that a further amount of R4 million has been availed, with conditions, and that it is the last allocation that can be made for the legal fees.
Regarding the questions on remedial action, she mentioned that the PPSA has established a unit in the Chief Operating Officer’s (COO) office that monitors the implementation of the remedial action by state organs. The follow-up process has been decentralised to provinces and branches, to better enhance its effectiveness, and there has been a slight improvement.
On the PPSA’s relations with other stakeholders, she remarked that the cooperation with traditional leaders, community-based organisations, and memorandums of understanding have been signed with the Premiers of each province. The latter has been effective as the Premiers have been more responsive to allegation letters and subsequent reports sent by the PP. An agreement has been reached with the KwaZulu-Natal (KZN) provincial government for the PPSA to address the provincial legislature on the response protocol as well as the implementation of remedial action – the PPSA is hoping to have this in other provinces.
The PPSA has also suggested that other Premiers also establish an integrity committee, like the one in the Gauteng Premier’s Office, which interacts with the PP’s reports and advises the Premier, as it has seen greater progress on the implementation of remedial action. While the institution was not where it wanted to be, she was confident that these new initiatives, with the assistance of Parliament, would make headway.
She explained that the attention placed on the Section 194 Committee has taken time away from the PPSA staff’s ability to attend to the PPA Amendment Bill. However, she confirmed to Members that the internal process had been finalised, and all that remained was the memorandum and the draft bill. She was hopeful that the process would be completed by the end of the week and submitted to the DoJ&CD on Monday.
In response to the question of who is accountable for the contempt of remedial action, she stated that remedial action is addressed to an office and not a particular individual. As such, whoever holds the position of authority at the time will be charged with contempt of remedial action.
The proposed amendment has placed more responsibility on the PPSA to make accurate and implementable remedial action. A memorandum is currently being drafted by the PPSA on what should be done in the instances where remedial action has not been communicated by the institution.
At present, the PPSA has four reports that have been taken on judicial review, but it is confident that it will succeed with one of them. The significant gap in training development and knowledge management, caused by the lack of strong strategic human resource development, was the root cause for the decline in the quality of reports, and the main reason for them being taken on review, she explained.
Touching on the question related to the differences between complaints, cases, and reports, she indicated that the PPSA has not changed how it classifies its matters. She emphasised that the process flow and operation have not placed the PPSA in a position where it is able to investigate efficiently and effectively. In fact, this contributed to the backlog of cases in the institution. To improve on this, the PPSA has revised its process flow, with the executive managers now conducting the assessments – some have delegated this responsibility to the chief investigation officers – instead of the junior investigators.
Part of the closures the PPSA is facing is due to the fact that it is sitting with many non-jurisdiction matters that have been in the role for more than two years in many cases. As such, the executive managers are now expected to place instructions in the file before allocating the matter to the investigator, so that there is a clear structure for each investigation.
Regarding the question on CARA Funding, she reminded Members of the meeting the PPSA attended in Parliament where the Director-General of the DoJ&CD made it clear that the PP would not be allocated the funding. In her view, she said, this was wrong, because the PP is one of the institutions that identifies corruption in the government, and refers it to law enforcement agencies. However, the institution remained confident that it was working in the right direction to improve its reputation and standing, which will allow it to obtain donor funding.
Referring to the question on where a Member could channel a complaint to, she said that the PPSA, through the COO’s office, would provide the Secretariat of the Committee with the required email address.
On whether the PPSA regularly updated its risk register, she was pleased that the PPSA had a business continuity plan which has assisted with risk mitigation.
Ms Maseko-Jele thought it would not be a good idea to remove the office from Phuthaditjhaba to Bethlehem because of the large distance between the two areas. As such, she recommended that the PPSA employ a mobile office on certain days for those in the area to access.
The Chairperson asked how the PPSA’s briefing patterns, especially for previously disadvantaged individuals and women, were.
Adv Gcaleka, on the proposal made on the Phuthaditjhaba office, mentioned that the PPSA employees are working under appealing and inhumane conditions in the office. The office was also not conducive to complainants. She added that the office has been unable to find alternative accommodation in the municipality, and would have to move to Bethlehem. To ensure that people still have access to its services, it will place more drop boxes.
Prior to the suspension of the PP, the institution announced that it would open an office in Ulundi, however, this has not materialised, as it was later noted that a proper assessment of the move was not done. After it was found that moving to Ulundi would make it difficult for people in the South of KZN to access the office, the PPSA decided to reconsider the move.
She assured Members that the institution now conducts proper assessments before the closure of an office or relocation, and mitigating factors are monitored on a quarterly basis, to ensure that affected communities are not prejudiced.
In respect of the institution’s briefing patterns, she admitted that the PPSA has not been equitable in its briefing patterns, and is looking to procure the services of other firms that have not been briefed in the past. In the near future, the PPSA will also acquire more firms in its legal panel, as it found that it is not diverse and jurisdictional, meaning that the institution has had to have correspondence in most areas. Nonetheless, the PPSA would provide the Committee with statistics on the firms briefed, and compliance with the remedial action by state organs.
The Chairperson mentioned that the Committee would follow-up with the departments that report to it which are not cooperating with the PPSA, and in this case, the DCS. He advised the institution to continue to foster its relationship with the Speaker so that she can also intervene on its behalf.
The meeting was adjourned.
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Documents
Present
-
Magwanishe, Mr GB Chairperson
ANC -
Breytenbach, Adv G
DA -
Dyantyi, Mr QR
ANC -
Horn, Mr W
DA -
Jeffery, Mr JH
ANC -
Maseko-Jele, Ms NH
ANC -
Newhoudt-Druchen, Ms WS
ANC -
Swart, Mr SN
ACDP -
Yako, Ms Y
EFF
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