Public Protector: Annual Report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
5 June 2001
PUBLIC PROTECTOR: ANNUAL REPORT

Chairperson: Adv J H de Lange

Documents handed out:
The Public Protector's Presentation (See Appendix)
"South Africa's Public Protector - An Introduction" brochure
"Meet the Public Protector" brochure

SUMMARY
The Public Protector discussed the proposed funding of his office for 2001/2002. His office is receiving a proposed R29 million instead of the R50 million requested. The money would be used to computerise the national and regional offices, pay for the rental of accommodation, urgently needed furniture and other sundry expenses. Money is also required to contribute towards funding the Arms Deal inquiry. A severe backlog in cases is also being experienced due to lack of staff, as there are insufficient funds to acquire more staff.

Adv Baqwa also touched on the lack of support received from Members of Parliament as evidenced from recent press releases and stated the need for a mechanism to deal with such a situation.

MINUTES
Presentation by the Public Protector
Adv Selby Baqwa addressed the Committee on the Financial Year 2001 of the Office of the Public Protector reading from Part II of the 'Presentation to the Portfolio Committee on Justice and Constitutional Development 5 June 2001'.

Adv Baqwa made reference to the allocated budget and stressed the need for an increase in the budget due to the backlog of cases at national level. He also expressed the need for greater staff, equipment and technical support.

Adv Baqwa also pointed out the necessity for a South African public awareness campaign in order to make the public aware of the existence of the Public Protector. To this end, booklets titled 'South Africa's Public Protector - An Introduction' and 'Meet the Public Protector' were being disseminated among the public. It was hoped that a greater awareness of the Office of the Public Protector would facilitate an increased number of referred complaints by members of the public.

Adv Baqwa also felt that it was a good idea for parliamentary members to visit Chapter 9 institutions. He suggested that visiting these institutions would enhance their understanding.

Discussion
The chair felt that a more detailed budget would be more useful and asked if a more detailed budget was available.

Adv Baqwa replied that a more detailed budget was not available.

Mr Ashley Rampersadh, the Commercial Director of the Office of the Public Protector, added that items such as stationery, telephone bills, rental and postage amongst other things were included on a more detailed breakdown.

The Chair asked how much the arms inquiry investigation would cost the Office of the Public Protector and also asked how the Public Protector's Office would manage this inquiry.

Mr Rampersadh replied that there is no movement of funds and that the Public Prosecutor would have to allocate a team of investigators.

The chair asked if staff had to be withdrawn from other commitments to take part in the
investigation.

Adv Baqwa confirmed that this was the case and added that this would further impact upon the backlog of cases.

Mrs Camerer (NNP) said that it was not clear to her what the R5.8 million mentioned in the report had been spent on. She asked which services had been paid for or ordered but did not appear in the report. She asked if the Public Prosecutor could be more specific on the cost of the arms deal inquiry and how how it was decided what part of the enquiry should be carried out in Public.

Dr Delport (DP) was concerned with the nationalisation of the various institutions and the wide powers given to the Public Protector. He wanted the Public Protector to give his opinion on the role his office would play if he were to be given adequate staff.

A member asked which of the three bodies, whose responsibility it is to investigate the arms deal, bore the responsibility of funding the arms deal inquiry. He also wanted to know why the Public Protector and his employees could not be compelled to answer questions in a court of law.

Mr Rampersadh first responded to Mrs Camerer's questions. In summary, R4.2 million went towards SITA, and the rest towards computer systems at both national and regional levels, licences, development and installation, information systems, human resources, support systems and furniture. He apologised for not having a more detailed breakdown of the budget but the intention was not to obfuscate.

With regard to the arms deal, he said that the general expenditure came out of the budget of the respective agencies involved but added that it would require proper funding. Some staff working on the arms deal inquiry would be out-sourced and this would also be at a significant cost.

The investigation itself was divided into two parts: a public enquiry and a forensic/investigative investigation. He said that because the investigation had been going through the media, people were aware of it but did not have any real knowledge. Further, despite all the government Departments having confidentiality agreements, this situation could potentially damage the Department and hence it was advisable that parts of the inquiry be open to the public.

Adv Baqwa recognised Dr Delport's concerns with regards to the nationalisation of the Department, but countered that the Department was unable to access sufficient funds.
He listed some examples of where the Public Protector has operated successfully at a national level, specifically ICAC in Hong Kong. However, he noted that ICAC has a budget of US$90 million. He said that this was not financially possible in South Africa at the moment.

Adv Baqwa insisted that non-compellability to testify in court was not intended to place the Public Prosecutor above the law. In practice, the Public Protector and it's employees could be taken to court. However, non-compellability was intended to operate where they would be required to testify about something revealed to them in confidence by members of the public. Non-compellability was therefore intended to protect the public.

Ms Botha (ANC) asked how the reports from the Public Protector were made available to the public. She also asked how budget allocations were made to the different offices and the which control measures related to them. Finally she remarked that since the Public Protector's office had requested a budget of R50 million and received R29 million instead, she asked how the Public Protector's office would make up this difference.

Mr Magwanishe (ANC) wanted to know which of the offices experienced the greatest backlog and asked if there is any money set aside for staff training.

Imam Solomon (ANC) felt that a budget increase for 2001/2002 of 60% was unrealistic. He asked how could Adv Baqwa could substantiate this increase.

The chair emphasised the specific nature of the Public Protector. He explained that people go to the public protector who in turn investigate the executive. Adv de Lange said that he was concerned that the unique nature of the Public Protector would be diminished or extinguished if it was to closely associated with government.

Mr Rampersadh addressed the financial questions. He explained that the finances of the regional branches were controlled at the national level. The office had no surplus funds and relied completely on the budget. The purpose of requesting such a substantial amount was for computers at the regional offices, severance packages and for the appointment of members of staff.

The chair stated that the amount of staff needed depended on the formula you used. He said that it was necessary to see the formula used including the cases and turnover rate.

Adv Baqwa replied that they did have such a document and that it was based on a scientific study. He insisted that it was not necessary to determine the amount of funds required since this determination had already been made.

With regard to reports, Adv Baqwa said that 20 special reports were issued in the last 6 years, in addition to annual reports. There were also reports that inform the public generally.

In response to the query regarding donor funds, Adv Baqwa said that their policy was not to ask donors since the funds lasted for a limited period only. Despite this, they have started accessing donor funds. He explained that the glossy booklets for the Department were created using EU funds with EU consent. They have also received limited private funding.

Adv Baqwa responded to Mr Magwanishe's query by saying that backlogs were experienced throughout the country primarily due to a lack of staff. Although the Eastern Cape seemed to have the greatest number of difficulties, there have been improvements.
Further, staff training had been completed successfully. In-house induction courses were conducted within the Department. Staff were and will continue to be sent on relevant courses conducted outside the Department.

Adv Baqwa contended that Imam Solomons view that the budget increase was "unrealistic" was unfounded. The Office of the Public Protector was a growing project and as such required funding. The R50 million figure was not arbitrary but based on scientific evidence.

In responding to the Chair's comment, Adv Baqwa referred to Prof Hugh Corder's report and agreed that it is necessary for the Department to maintain it's credibility through remaining independent of government. He added that the Office of the Ombudsman is not intended to become an investigative unit.

The chair asked whether the idea of a "one-stop-shop" was still being entertained and whether there were any plans or problems in this regard.

Adv Masuta (ANC) referred to s 181(3) and asked if other organs of state were being accommodating and supportive of the Public Protector's Office. S 181(3) refers to the duty of different organs of state to support and protect Chapter 9 institutions. He also wanted to know if the funding for the rental of office accommodation would be provided for in the budget of the Public Protector or by Public Works. Making reference to the figures on page 9 of the Presentation to the Committee, he asked if the cases mentioned were only those which the Public Prosecutor's office had chosen to deal with and how many of those cases would not be taken up for various reasons.

Ms Chohan-Kota (ANC) wanted to know how the "whistle-blowers" Disclosure Act was progressing. She also asked if there was any difference in the manner parliament dealt with a report as opposed to the Public Protector.

Mr Rampersadh replied to the question regarding rental accommodation and explained that Public Works acts as the leasing agent for government Departments. Provided funding is provided they will obtain and maintain lease agreements.

Adv Baqwa responded to the idea of a "one-stop-shop" and said that plans will encompass Constitutional Court, the Public Protector and other Departments. He admitted that this would be costly but added that this would prevent people from having to search for different government Departments.

He also responded to Ms Chohan-Kota's question buy saying that the Department played a mediating role with regard to information. Cases relating to the Disclosure Act were beginning to trickle through.

With regard to s 181(3) of the Constitution, he said that there was a lack of support from Members of Parliament in press releases. He had spoken to the Speaker but she had responded that there was no mechanism to deal with this problem. He confirmed that support had been provided at an operational level.

The figure regarding the number of cases presented an idea of the volume of work being done. Cases are analysed and screened according to certain criteria, such as gender.

With regard to parliament handling reports, he said that some have been dealt with more effectively than others. He drew a comparison with the English system where parliament effectively takes up matters raised by the Ombudsman who has the support of the people.

Mrs Camerer (NNP) referred to the statistics on page 6 and wanted to know if the national office was able to manage the workload and if the regional offices were, as they seemed, more efficient. She also asked how long it took to process the cases.

Adv Baqwa replied that the processing time had increased because of the backlog. With the exception of simple cases, it usually takes 6 to 9 months. Within the next few months he hoped to provide a more specific answer.

The meeting was adjourned.

Appendix:
OFFICE OF THE PUBLIC PROTECTOR

PRESENTATION TO THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT: 5 JUNE 2001

A.        INTRODUCING THE OFFICE OF THE PUBLIC PROTECTOR
1.        AIMS AND OBJECTIVES OF THE PUBLIC PROTECTOR
To investigate any conduct in state affairs, or in public administration in any sphere of government that is alleged or suspected to be improper or to result in any impropriety or prejudice, to report on that conduct, and to take appropriate remedial action.

2.        FUNCTIONS OF THE PUBLIC PROTECTOR
The office has the following core functions:
To undertake investigations within its sphere of jurisdiction
To provide administrative support for such investigations

B.        FINANCIAL YEAR: 2000/2001
The following issues address the activities for the financial year 1 April 2000 to 31 March 2001

FINANCE
Allocation of Budget: 2000/2001 Financial Year
In the Medium Term Expenditure Framework (MTEF) my office requested a budget of R32 891 000. However, only R23 969 000 was approved and allocated to my office. As a result of the shortfall of R8 922 000, major changes were necessitated in order to function within the allocated budget. Service delivery was also affected as I did not have enough staff to cope with the backlog which was accumulated because of a lack of resources and the turn around time for some investigations was much too long.

The allocated budget was utilised to incur the following items of expenditure:
Personnel Expenditure                          R14 000 000
Administrative Expenditure                                 R 3 600 000
Stores                                                              R 300 000
Equipment                                                        R 130 000
Professional and Special Services          R 50 000
Miscellaneous                                      R 20 000

Total                                                               R18 100 000

It will be noted from the above that the office had incurred what appears to be a saving of R5 869 000 on its budget. It needs to be emphasised however rather strongly, that these funds had been earmarked for expenditure during the financial year in question. Due to the non-delivery of services, I have requested for the rollover of such savings to the current financial year in order to incur such related expenditure. Funds had been earmarked for the acquisition of the following services and payment:

Professional and Special Services
My office is currently in the process of negotiating the signing of a contract with the State Information and Technology Agency (SITA) with regards to the procurement and implementation of all Information Technology and Information Systems related matters for my office. At present, my office is totally reliant on the Department of Justice to provide all financial and administrative support services as my office does not have the necessary information systems to undertake all financial and human resource functions. This is a much needed and urgent service in order to relieve the Department of Justice in providing such services.

In addition hereto, I have established regional offices in six (6) of the nine (9) provinces and these offices are currently functioning without the necessary information systems. It is important that these offices are adequately equipped in order to enhance the level of service delivery from my office.

Equipment
As already mentioned above, computers and file servers are needed at both the National and Regional offices in order to implement the much needed information systems. However, such can only be purchased once the business agreement with SITA is signed. It is envisaged that such an agreement will be signed in due course.

With the increase in staff, additional office furniture was required. Even though the orders for such furniture were placed in advance, the supplier was unable to deliver the ordered items of furniture in the course of the financial year in question. The result of this is that payment will now have to be made in the course of the current financial year when delivery is scheduled.

Personnel Expenditure
Funds had also been earmarked for the allocation of merit and notch increments to members of staff who are on my establishment. Some of them had not been assessed for the past three(3) years. As a result, a large portion of the personnel expenditure was set aside in order to incur this expenditure. With the ever-increasing pressure and workload in my office not all the cases were finalised as initially anticipated. Hence, such outstanding cases will only be finalised in the course of the current financial year and hence the need to rollover such funds.

Audit Report
Currently, my office does not have the necessary resources (finance, personnel, and information systems) and infrastructure to maintain a fully operational financial division. To overcome this problem, an agreement was reached with the Minister of Justice that his Department will assist my office in the rendering of such needed financial support services. Hence, all accounting records are processed, maintained and audited at the Department of Justice although, the budget and expenditure is controlled by my office. Consistent with previous practice thusfar, the audit report for my office will therefore be included in the audit report of the Department of Justice.

2.        PROGRAMME AND SERVICE DELIVERY
2.1Â Â Â Â Â Â Â Expansion of Office
In addition to the existing regional offices in the Provinces of North West and Eastern Cape, three (3) additional regional offices were established in the Provinces of Kwa Zulu-Natal, Western Cape and Mpumalanga. The composition of the offices is as follows:
Kwa Zulu-Natal Office
1 x Regional Representative
6 x Investigators
3 x Admin

Western Cape
1 x Regional Representative
2 x Investigators
2 x Admin

Nelspruit
1 x Regional representative
1 x Investigator
1 x Admin

2.2Â Â Â Â Â Â Â Public Awareness Campaign
Two major publications were prepared and launched during the course of this financial year promoting the office of the Public Protector. Copies of these are submitted for you kind perusal.

I am proud to announce that during October 2000, my office had successfully hosted the 7^th Annual International Ombudsman Institute Conference in Durban. The conference which was attended by Ombudsman from about 100 countries, was opened by President Mbeki and closed by the Minister of Justice. This being a first for Africa, received high levels of both local and international media coverage. I am further pleased to announce that during this conference I was elected as Vice-President to serve on the Board of Directors.

With the launching of the regional offices in the respective Provinces, my office is constantly involved in projects to further promote the presence and activities of these offices.

Accessibility to the poor, the illiterate and the people without faxes and phones is being enhanced. We are receiving positive feedback from government representatives and the general public in this regard.

2.3Â Â Â Â Â Â Â Number of cases received for investigation
The following is an overview of the workload that the office of the Public Protector had received for the period 1 April 2000 to 31 March 2001:

As can be seen from the abovementioned statistics, it becomes clearly evident that the office is in dire need of personnel and other resources to address the backlog.

PROBLEMS ENCOUNTERED
3.1Â Â Â Â Â Â Â Appointment of personnel
A work study investigation was conducted in my office and based thereon, it was recommended that additional posts be created to the existing establishment in order to manage the backlog and projected increase in investigations. Such recommendations were approved as per the organisation and post establishment blueprint.

As a result of the of shortfall of R8 922 000 in the requested budget, the following personnel could not be appointed:
1 x Deputy Public Protector      Â
            1 x Assistant to the Public Protector
            8 x Senior Investigators
9 x Investigator Assistants

The services of these key personnel would have contributed to improved service delivery.

3.2Â Â Â Â Â Â Â Rental of Office Accommodation
In the MTEF, my office did not make any budgetary provisions for the rental of additional office accommodation both at national and provincial levels. The reason for this being that it was understood that such related expenditure would be met from the budget of the Department of Public Works. My office was never informed to the contrary.

As a result of this non-provision, R312 000 had to be made available from the limited budget to incur this much needed expenditure. The committee needs to be informed that provision has now been made in the MTEF to accommodate such related expenditure based on the costing from the Department of Public Works.

C.        FINANCIAL YEAR 2001/2002
4.1Â Â Â Â Â Â Â BUDGET
In the Medium Term Expenditure Framework (MTEF), the office had requested that a budget of R50 725 000 be made available to undertake all existing and envisaged activities. However, only R29 371 000 was approved and allocated. This leaves the office with a shortfall of R21 354 000.

ALLOCATION OF FUNDS
The allocated budget of R29 371 000 will be utilised as follows:
Personnel Expenditure                          R23 000 000
Administrative Expenditure                                 R 4 100 000
Stores                                                              R 450 000
Equipment                                                        R 580 000
Professional and Special Services          R 1 041 000
           Miscellaneous                                      R 200 000

Total                                                                R29 371 000

4.3Â Â Â Â Â Â Â PROGRAMME FOR THE CURRENT FINANCIAL YEAR
4.3.1Â Â Â Â Expansion of Service Delivery
The office will be expanding its services to the following Provinces:
Northern Province
Northern Cape
Free State
Each office will be headed by a Regional Representative and supported by staff as approved in the organisation and establishment blue print for the office of the Public Protector. Due to budgetary constraints, it would not be possible to implement fully operational regional offices. The offices will have to function with limited resources.

4.3.2Â Â Â Â Information Systems
With the planned implementation of information systems for my office, it is envisaged that such will allow the office to enhance its levels of service delivery both internal and external to the Office of the Public Protector.

Public Awareness Campaign
With the official opening of the newly launched regional offices, much media coverage was achieved. Further details with regards to the official opening are as follows:

Kwa Zulu Natal
Officially opened by: His Majesty King Goodwill Zwelithini
Officially opened by: 9 May 2001

Nelspruit
Officially opened by: The Honourable Premier Mahlangu
Date opened: 17 May 2001

Western Cape
Officially opened by: The Honourable Speaker of Parliament, Dr. F. Ginwala
Date opened: 23 May 2001

The office will continue to embark on a public awareness campaign. Plans include further training as there is obviously a tremendous need for such as well as the production and large-scale distribution of a publication on the office.

Number of cases received for investigation
The following is an overview of the workload that the office of the Public Protector had received for the period 1 April 2001 to 1 June 2001:

5.        PROBLEMS ENCOUNTERED
5.1Â Â Â Â Â Â Â Appointment of personnel
The shortfall in the allocated budget places severe limitations on the office in appointing the much needed personnel.

The following is a breakdown of personnel who cannot be appointed onto my establishment due to the lack of funds:

1 x Assistant to the Public Protector
3 x Senior Investigators
7 x Investigators
6 x Investigator Assistants
1 x Provisioning Manager
1 x Chief Admin Clerk

Rental: Office Accommodation
The office is of the opinion that adequate funding was not made available to acquire the identified additional office accommodation, both at national and provincial levels. Budgetary provisions were made in the MTEF based on costing supplied by the Department of Public Works. Of the R29 371 000 allocated budget, R2 800 000 will be spent on the hiring of office accommodation.

D.        CONCLUSION
          Â
As can be seen from the above, a major problem facing my office is that it is still not yet adequately resourced. However, having raised this issue, I have noted with appreciation the substantial increase in the budget allocated to my office for the 2000/2001 and 2001/2002 financial years.

The impact of the work of my Office extends beyond ensuring the rights of particular individuals. Rooting out the legacy in government of the apartheid years of arrogance, secrecy and corruption is a task still to be completed. It is in this regard that the Office of the Public Protector is of critical importance in the transformation of the Public Service into one which is worthy of the name - one that is dedicated to, and effective in, translating the democratic mandate of better governance.

For all these reasons, one is conscious of the enormous responsibility that finds itself in the Office of the Public Protector.

The office of the Public Protector has grown internally. We now have offices in six (6) of South Africa's nine province's. This was necessary to create accessibility for South Africa's still largely illiterate, indigent and rural community. We currently handle on average 954 complaints per month in all of our offices. The total number of complaints handled by my office from the date of my appointment in 1995 totals 48 017.

Even externally, my office has gained more recognition. We have in some ways become a resource even to some of our neighbouring countries' Ombudsman Offices. I have been engaged as a resource person in workshops and seminars aimed at strengthening the capacities of Ombudsman Offices in countries such as Malawi, Namabia, Lesotho, the Gambia and even in the Caribbean.

Independence and effectiveness are compromised by the allocation of resources that are disproportionate to the mandate and expectations of the people. My office is supposed to be a model for efficiency. It is supposed to be an institution, which investigates complaints speedily and effectively. That is the essence of an Ombudsman office. Without the necessary resources, my office would not be able to attain it set goals. To deny the office the capacity it needs would result in the office loosing its credibility and make it impossible for staff to remain in their current jobs because of the unacceptable workload.

It must be stressed that the office is careful not to take on any investigation that does not fall within its area of jurisdiction. It is however not in a position to choose its projects in the sense that it cannot show a citizen with a complaint away. It has to deal with all matters received. I can only ask that these difficulties are taken into account in the budgeting process. A typical example would be the current arms investigation with which my office is tasked. It becomes difficult to budget and plan for incurring any such related expenditure such as this. I therefore wish that due and proper attention would be given in my requests for additional funding during the adjustment budget hearings.

I would also like to take this opportunity to urge this honourable committee to study and follow up on the proposals which were made by Professor Hugh Corder to try and facilitate the work of Chapter 9 institutions. That report was commissioned by Parliament. It would be improper in my respectful view for the proposal made therein to gather dust.

We need to recognise that the work with which these institutions perform is essential. It does not fall under the category "any other business". It is an essential and intrinsic part of the agenda of good governance and good government.

In concluding, I would like to express my greatest appreciation for the co-operation that we continue to receive from the Department of Justice. Copies of the annual report for my office which are in the process of preparation will be made available once printed.