Briefing by the Human Rights Commission and Public Protector

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Justice and Correctional Services

16 March 1998
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Meeting report

JUSTICE PORTFOLIO COMMITTEE
17 March 1998
BRIEFING BY THE HUMAN RIGHTS COMMISSION AND PUBLIC PROTECTOR

Documents handed out:
Annual Report 1996-1997: SA Human Rights Commission
Report on the Office of the Public Protector
SA Human Rights Commission Report to Parliament

Introductions

The Chairperson, Adv de Lange (ANC), opened the meeting. He explained that the committee had originally envisaged having the Heath Commission to brief the committee on today’s agenda, but that Judge Heath was still in Germany.

Today’s hearings should not be seen as an event, but as the beginning of a process. The Chairperson mentioned the absence of the Gender Equality Commission from the agenda and said that this was due to an uncertainty as to whether the Justice committee or the Committee on the Status and Quality of Life of Women would be responsible for calling the Gender Commission to account.

The chairperson said that he realises that these briefings are long overdue and that there has been a lot of talk about creating a platform like this, both to enable the Justice committee to keep abreast with the state of the commissions and for the commissions to alert the committee to problems which need to be addressed.

Briefing by Dr Barney Pityana, Chairperson of the South African Human Rights Commission (SAHRC)

Dr Pityana noted that the submission should be read together with the two annual reports. He then proceeded to read out the SAHRC’s submission. A short summary of selected highlights follows below:

The SAHRC has tabled two annual reports in Parliament, but these reports have elicited minimal response.

The SAHRC was inaugurated on 2 October 1995 , the Commissioners were sworn into office in March 1996 and the President brought the powers of the Commission into operation in May 1996 .The process of establishing the Commission was very slow for a variety of reasons .

Resignations, new appointments and vacancies

Of the 11 Commissioners appointed , 4 have resigned. Two of these resignations were due to the Commissioners being appointed to other Commissions, one was for reasons which the Commissioner preferred to keep confidential and the other resignation occurred in very controversial and unfortunate circumstances.

There have been two new appointments; namely Mr Jody Kollapen in December 1996 and Mr Jerry Nkeli in February 1997. At the moment there are two vacancies.

The Commission has experienced a high turnover among office staff.

Vision and Mission

In December 1996 , the Commission adopted a mission and vision statement. Where the Commission has failed to give expression to that Vision, it has been due to inadequate resources. For example, the commitment to become accessible has been thwarted by the fact that resources are not available to open provincial offices. The Commission is negotiating with the Office of the Public Protector and the Commission on Gender Equality with a view to finding cost effective ways of reaching out to the provinces.

The Commission has recognised the advisability of appointing commissioners to specific portfolios in order to advance special human rights concerns like the rights of the Child, Environment, Equal Opportunities, Administration of Justice and to give effect to some statutory obligations as in the Open Democracy Bill. To do his, there is a need for all commissioners to serve on a full time basis yet there are not enough financial resources for such a move.

The Commission recently underwent a strategic planning workshop for 1998. The workshop further streamlined the operations of the Commission in order to ensure that it can operate effectively within available resources

Regarding bringing proceedings to court, the Commission has been slow to take that route because of resource constraints. They have however worked in partnership with other agencies like the Legal Resources Centre to bring matters to court or where convenient they have applied to intervene as amicus curiae. In order to advance this development aspect of its work, the Commission has sought assistance from the Canadian Human Rights Commission to establish a Litigation Unit.

Proposals for improving effectiveness of the Commission

In October, the Commission submitted to the government a Memorandum of Understanding which seeks to regulate relations between government and the Commission. The Memorandum has not yet been signed because government has not yet approved it. The Commission has observed woeful ignorance within government about the Commission. It was to meet this difficulty that the Memorandum was proposed.

The fact that the Minister of Justice is the line function minister for human rights in the Executive and the Department of Justice the conduit for the budget for the Commission poses an obstacle to the independence of the Commission. This financial dependence, jeopardizes the independence of the Commission as envisaged by the constitution. It was proposed that parliament take a more direct role in facilitating the funding of the Commission and undertaking the supervisory duty required by the constitution. This will mean that parliament will continue with its role of supervising the Executive and the independent state institutions will be an extension of that. The consequence of such an arrangement is that there be a parliamentary committee on human rights which would be an interdepartmental committee overseeing the application of human rights throughout the governmental structure. A report will be presented to the Speaker in the name of three institutions shortly.

The Minister of Justice has tabled the Human Rights Commission Amendment Bill. The Bill seeks to bring into the Human Rights Commission Act some of the provisions in the interim Constitution which have not been incorporated into the final Constitution and which clearly express the powers and mandate of the Commission. The Bill also seeks to give the Commission powers to raise funds outside of government.

Please see the full submission for a complete picture of the briefing.

Questions and answers

Ms Camerer (NP) raised the following issues and questions:
1.The Human Rights Commission Amendment Bill which the submission says has been tabled, actually has not yet been circulated. (The Chairperson explained that the draft bill was currently with the Minister of Finance). Would this bill address the technicalities regarding the recent resignations? Regarding the contents of the bill, could Dr Pityana please elaborate on the detail , especially the detail from the interim constitution.
2.What is the Memorandum of Understanding with the government? A code of conduct? Is it meant to be binding once signed?
3.Noting that the Commission had held hearings on education, is the Commission able to be activist in various educational crisis, e.g. the Vryburg situation?

Dr Pityana answered:
1. Yes, it would be a good idea to remedy the technical difficulties in the Amendment Bill. The bill does not however contain provisions to this effect because it was drafted before the problems arose, for instance the issue of withdrawal of resignations. Ms Kadalie submitted her intention to withdraw her resignation after the resignation had come into effect. Another technical difficulty is that the current Act allows a Commissioner to change from a part-time commissioner to a full time commissioner, but not visa versa.
2. The Memorandum of Understanding is aimed at enabling government to understand the perimeters of authority of the Commission and what the Commission is all about. It is not a contract. It will specifically address the nature of the Commission, the Commission’s responsibilities, the responsibility of government to ensure that the Commission can do its job and accountability to government. It is not known why government has not yet agreed to sign it. The interim constitution had a more comprehensive view of the Commission’s powers and responsibilities. The final constitution is much more concise and there is a feeling that things have been left out.


Commissioner Kollapen said that the Commission had experienced frustration in getting co-operation from government departments.

Ms Ngwane (ANC):
1. What is meant in paragraph 19 of the submission by the reference to the Commission’s independence being jeopardized?
2. There is an increase in your budget this year. Thus you have extra money to play with plus once the bill has been passed, you will be able to raise funds outside of government. What percentage do you estimate you can raise from sources other than government?
3. You are incorporating the rights of people who have disabilities - are you being given this responsibility without a budget?

Dr Pityana:
3. When the white paper on disabilities was being considered, a critical request was for the creation of a commission to oversee the rights of people with disabilities. However, the government was not ready to consider the establishment of another Commission. Thus we have appointed a commissioner to oversee the issue of disability and we have established a section 5 committee. What is still needed is a unit within the Commission. However, the resources which were promised have not been forthcoming. There is no intention for the commission to take over the function of the Office on Disabilities within the Deputy President’s Office. The Commission’s unit will be additional.
2. We welcome the increase in our budget. R13,2 million has been promised and we will for the first time be able to undertake our projects. We need another R7 million which we hope to raise after the bill has been passed. We are in a better position than before.
1. The Commission is required to be free and impartial in its duties of monitoring and promoting human rights. It is very hard to raise funds from a department which the Commission is required to monitor. This problem has been discussed with senior officials within the Department of Justice and they are all agreed that it is an untenable situation. All three Commissions (GEC, HRC and PP) will be submitting a common proposal to the speaker to attempt to solve this problem.

Ms Ngwane (ANC) asked Dr Pityana to state how much or what % of the budget could be raised outside of government. He replied that they hoped for R7million. Commissioner Kollapen added that the outside funds will be for projects and will not cover capital or expenditure costs. He also raised the problem which NGOs might experience when the Commission enters the competition for foreign funds.

Commissioner Mabusela added that the Commission struggled to help the plight of the elderly and the farm workers due to a lack of resources.

Commissioner Suzman said that the lack of provincial offices was very disabling, especially in fulfilling the Commission’s mandate to monitor access to resources. This is a big problem at local government level. To fulfil this mandate without provincial offices is very difficult.

The Chairperson said that the Committee was mindful of the resource constraints faced by the Commission and that the Committee will try to bring this need across. The Committee is willing to put its weight behind this.

Ms Jana (ANC) added that it was anticipated that the Commission would have teething problems and that the Committee appreciates the Commission’s efforts to overcome this. She asked for the Commission’s view on the streamlining of the various commissions.

Questions from Mr Gibson (DP):
1. There is a sense of lack of support. Is this because the Commission is not focussed but is trying to change the whole world at once? Wouldn’t it be better for the Commission to focus on specific programmes? He expressed concern at the lack of complaints processed.
2. He questioned why the Commission did not make use of the money that it already had. He mentioned various figures and concluded that there was an amount of R2,2 million out of R9 million unspent in 1997.
3. He asked for statistics on the number of complaints which were successfully resolved.

Commissioner Kollapen's replies:
1. The Commission had been given a very wide mandate by Parliament. At the recently held strategic workshop, the Commission was told to focus, specifically on equality (race and disability); constitutional rights and socio-economic rights.
3. There were about 100 complaints coming in per week. Dealing with all of them amounts to a fair amount of work. There have been successes, for example a parole board decision being reversed, a child being re-admitted to a school. He gave an example of a foreign human rights commission which had a staff of 7 legal officers and 6 lawyers. The South African Commission has a staff of 3 lawyers and some interns.

Commissioner Govender's reply:
1. The Commission has a very broad mandate and an expansive Bill of Rights. The Commission’s focus wasn’t as sharp as it should have been. It was hard to do this at the beginning due to the broad mandate.

Govender responded to a previous question by Ms Camerer (NP) regarding the new amendment bill and possible amendments to address the difficulties surrounding the resignation of Commissioner Kadalie and the request of Commissioner Routier to work part time. He said he would be concerned if the Act was amended for specific individuals. Such a move might not be constitutional. There are less drastic measures to solve the problems which have arisen. He mentioned re-applying as an example.

The Chairperson interjected at this point to state that the Bill was with the Finance Committee which had worries about the provisions dealing with private fund raising.

Commissioner Pityana answered Ms Jana’s (ANC) question on the overlapping of the three human rights institutions. He said that the Gender Commission, Public Protector and Human Rights Commission have been having discussions. The closer they work together, the fewer overlaps there will be. At least at provincial level, all three want "One Stop Shops".

The Chairperson asked Pityana to explain exactly what was meant by "One Stop Shops".

There would be one physical office, which would enable the Commissions and the Public Protector to share administration and other costs. They could also do human rights training together. There is a lot of merit in the three bodies retaining their separate identity, but at provincial level, "one stop shops" are important.

Commissioner Mabusela addressed the Committee on how the Commission was addressing the rights of children. She said that the Commission has set up a section 5 committee, but that the Commission does not yet have a systematic way of focussing on children’s’ rights. She said that the section 5 committee is comprised of "outstanding South Africans" but that the Commission experienced frustrations, particularly in getting government departments to respond to a request for information on how they are addressing the rights of children. The Commission wants to submit an independent report to the UN on the rights of the child.

Dr Pityana discussed complaints, saying that a lot of complaints are referred to other institutions if the complaint falls within its area of expertise. A lot of complaints which the Commission receives are not human rights violation. This points to a need for a public education campaign.

In July, the Commission will be hosting an international conference of Human Rights Commissions.

Socio-economic rights is also an important focus for the Commission because our democracy will be meaningless if people’s socio-economic needs are not addressed. The Commission needs to speak of a holistic integrated approach to human rights.

Another focus is justice and the administration of justice. Prisons, police and the investigation of crime are important areas.

The Commission will have to accept that there are things it will not be able to do. It needs to decide where to focus.

The Commission has been operational for 2 years and is looking forward to the EU impact assessment study.

The Commission’s long term objective is to foster and build a human rights culture in South Africa.

Dr Pityana said that he could not answer Mr Gibson’s question on the budget now. The Chairperson asked whether there had been a roll over at the end of 1997. Dr Pityana answered that there was no roll over. There had been one in the Commission’s first year, but not in the 1996/97 year. Mr Gibson pointed out that there was a surplus of R1,7 million. The Chairperson advised that the Committee wait for the final audited financial statements before taking the matter any further.

Ms Chohan- Khota (ANC) referred to page 16 of the annual report where the issue of crime and the perception that "human rights" is a barrier to the prevention of crime. Exactly what does the Commission have in mind in order to reverse this perception? Giving a high profile to prison issues enhances this perception, what about steps to enhance victim protection?

The Chairperson added that the perception of the Commission as criminal friendly was a big problem.

Mr Nel (ANC) questioned the Commission on its long term vision. What niche does it wish to occupy in its promotion of a human rights culture? He named a lot of other human rights bodies including the Independent Complaints Directorate and the Judge Inspectorate to illustrate his question. He stressed that he was not suggesting that there are too many commissions. He felt that a range of commissions was a good thing given the history which we come from. But where does the Human Rights Commission see itself in relation to government commissions and NGOs working in the same field? He mentioned the problem of "crowding out" funding resources for human rights NGOs. Does the Commission see itself moving in the long term to a more general role of facilitation, or does it foresee a more specific role for example as the primary body responsible for implementing and monitoring the Employment Equity legislation?

Mr O’Malley (IFP) asked for more information on the task team appointed to review the Gender Equality Commission, HRC and Public Protector. He said he understood it had to do with overlap. He also raised a point regarding the statistics on page 28 relating to complaints. There seemed to be a maths error of some sort. He asked whether the Commission had a website. Lastly he referred to page 5 of the Public Protector’s submission where it was stated that "whereas the Public Protector is the objective adjudicator of facts placed before him, the commissioners are the subjective promoters of Human Rights.", and asked the Commission for comment on this statement.

Mr Landers (ANC): What are the implications if the Commission becomes responsible for implementing employment equity.

Mr Mzizi (IFP) commented on the budget increase(R9 million to 13 million) and mentioned that R4 million was spent on salaries.

Commissioner Dhalmini addressed Ms Chohan- Khota’s question on the perception that the Commission is "soft on crime". He said that in the past criminals were marginalised. The Commission is concerned with a broad approach to human rights. Education has been marked as a priority. For instance human rights training in schools and radio talk show. He said that crime was a complex problem and even more so because law enforcement officers were involved in crime. The Commission wants to see the protection of all peoples rights - and that includes criminals.

Commissioner Routier commented on the task team on rationalization. She said that it had not yet been convened and that the Commission did not yet know what the task team intended to find. There is however a document circulating on the rationalization of the Commissions.

She said that a Website is in the pipeline.

Commissioner Nkeli said that the Commission’s parameters are determined by law and that the Commission recognises that they cannot be everything to everybody. He added that where the Commission is given new responsibilities, it is wise to follow that up with adequate resources.

A commissioner (unidentified) mentioned that the statistics on rejected complaints included complaints which were referred to other bodies.

Commissioner Kollapen said that the "soft on crime" perception was fuelled by the media and politicians. He stressed the need for the Commission’s prison work to continue because prisoners remain a vulnerable group. It is not a popular pursuit but it is something which must be done. He said that taking people to the prisons and showing them the conditions would do a lot to break down the perception. As far as addressing the needs of victims, he mentioned the Commissions work relating to the Victims’ Charter and compensation of victims.

In answering Mr O’Malley’s question on the statistics on page 28 not totalling up correctly, he explained how the total was reached.

A Commissioner mentioned that the Commission was meeting with the ICD on Monday to discuss racism in the police force.

A Commissioner said that the Equality Legislation would require a commission of its own, similarly with the Open Democracy Bill.

The Commission commented on its powers to "make recommendations" and compared South Africa to other countries. In other countries, the government was often required to respond to the recommendation within a specified time period, e.g. 40 days. The SAHRC has made recommendations to various government departments and there has been silence.

Mr O’ Malley (IFP) said that of the 440 complaints reported to have been received, more than 50 come from prisoners. This leads to a perception that the Commission leans over backwards for prisoners.

A Commissioner mentioned that the Commission should not be complaints driven. Complaints should be used to show trends. The Commission wants to move towards analysing trends and taking action.


Briefing by the Public Protector, Advocate Selby Baqwa

A public awareness video was shown to the committee. The video seeks to explain to the public when it is appropriate to ask the Public Protector for help and how to do so.

Adv Baqwa then presented his submission. Selected highlights follow below. Please consult the submission for a comprehensive picture of the submission.

Introduction

The Public Protector’s office does not have the benefit of a functional parliamentary committee at present. He expressed appreciation for this opportunity to make a submission to the Justice committee, yet stated that the Justice committee is not in an overseeing position with regard to his office. It terms of section 2(1) of the Public Protector Act, an overseeing parliamentary committee was appointed prior to Adv Baqwa’a appointment, but the committee is no longer functional. This has resulted in a lacuna: There is no proper ongoing communication with parliament. This situation should be remedied by the re-creation of the ad hoc committee.

Brief of the Office and Adv Baqwa’s interpretation thereof

The brief given to the office by the constitution makes it clear that the Office is an institution that would in international terms be described as an Ombudsman. Adv Baqwa regards the mission of his office not only to receive complaints and to deal with them, but also to improve efficiency, transparency and accountability in public administration and to improve fairness in the provision of governmental services.

Utilisation of the office by the public

The office has proven to be much in demand by the public. This is reflected in the continual rise in the number of complaints received each month. Whereas the office received an average of 105 complaints per month for the first three months in 1995, this has increased to an average of 284 incoming complaints per month for 1998 so far.

So far, 7000 complaints have been received and 3545 have been finalised so far.

Relationship with other state institutions supporting democracy

On the face of it, there seems to be an area of overlap between the commissions and my office due to the fact that many complaints against state administration involve the infringement of a Human Right. However, if it concerns that individual complainant only, it is a matter for the Public Protector to investigate. It is only where the infringement is indicative of a larger picture of human rights abuses that it is referred to the commissions. Adv Baqwa gave the example of a complainant who is assaulted by a prison warder. Such a case would be referred to the Human Rights Commission.

He stressed however, that where duplication has occurred, it has proved to be a strength rather than a weakness.

There is ongoing discussion with the Gender Equality Commission and the Human Rights Commission to facilitate proper utilisation of resources. The office has also liased with the ICD and the anti-corruption unit within the police.

International relations

South Africa has been placed second after Hong Kong to host the fourth yearly world-wide ombudsman conference in 2000.

Present establishment

Adv Baqwa pointed out that he has a staff of less than 30 people. A deputy public protector as provided for in the Act has not yet been appointed. This issue has been bogged down in parliament. The Department of Justice is attending to the matter.

He gave population/public protector staff ratios for other countries to show how understaffed his office is.

Ghana has a population of 20 million and a public protector staff of 420.
Senegal has a population of 7,5 million and a public protector staff of 40 people.
South Africa has a population of 40 million and a public protector staff of 30.

Budget

The budget for the present financial year (1997/98) amounts to R5 827 000. An amount of R7 438 000 has been allocated for 1998/99.

Request for additional funding for expansion of the office

Adv Baqwa has requested an additional amount of R22 386 000. The bulk of the amount would go to establishing regional offices.

Adv Baqwa stated that the Interim Constitution made provision for the establishments of Provincial Public Protectors, but the final Constitution does not. The fact that provincial offices were not proceeded with resulted in a severe backlog of complaints in the national office. Given the vast geographical area that needs to be covered, such regional offices would bring the institution closer to the people, as it should be and as was envisaged in the founding legislation. It was pointed out that section 182(3) of the constitution provides that the Public Protector must be accessible to all. Much pressure has been put on the Office to establish regional offices, by NGOs, state institutions and the public.

The office has proved to be extremely popular with the public. Whenever the office receives publicity, it is translated into a rise in the rate of incoming complaints. As a result, the Office has had to put its communications strategy on hold. Even so, the incoming complaints keep on rising.

Adv Baqwa said that his office was aware of the budgetary constraints faced by government and thus would understand if the government said they could only give enough money for the establishment of 5 regional offices.

Problems encountered by the Office

Adv Baqwa mentioned that the state of public administration in the Eastern Cape was of real concern to him. He said that it was the one area where he has difficulty in getting co-operation. It seems not so much to be a reluctance to co-operate, but rather an inability to co-operate. A "Ghost Busting" unit has been set up to root out ghost schools etc. If additional funding is granted, the first regional office would be the Eastern Cape.

The backlog of complaints is a source of great concern. This has lead to some bad press for the Office. It is imperative for the Office to be able to deal with all complaints expeditiously and timeously. If unable to do so, the Office will be discredited in the eyes of the public. It is difficult to restore confidence once it has been eroded. In this context, Adv Baqwa expressed extreme concern that the Treasury Committee decided to postpone a decision on his request for additional funds. Of further concern is the task team set up by Cabinet to investigate the request for funding for the creation of regional offices. The Minister of Public Service and Administration, who is supposed to head the "task team", says he knows nothing about the task team. It seems that the Minister of Finance will not consider the request for additional funding without a report from this as yet non-existent "task team".

Questions and answers

Mr Gibson (DP):
1.Your office inherited 544 cases from the previous ombudsman. How many of these have been dealt with?
2.You report that 3500 complaints have been disposed of, there are thus 3500 left. The backlog is likely to increase every year. Is the additional budget enough to appoint enough staff to shrink the backlog?
3. If you could somehow quantify how the ghost eradication will save government money, you might convince government to allocate more money to your office.

Ms Camerer (NP):
1. The NP has been very vociferous in asking for more money for the Public Protector, specifically in relation to provincial offices. How does the idea of provincial public protectors tie in with "one stop shops"?
2. How urgent is the need for a Deputy ? Perhaps we could push it along?

Adv Baqwa's replies to Mr Gibson’s questions:
1. About three quarters of the complaints inherited have been solved. The more complex ones seem to drag on
2. The amount of R2 million will not allow the Office to appoint all the staff it needs. However, one of the first appointments will be a person who specialises in defence force matters.

Adv Baqwa's replies to Ms Camerer’s questions
1. Regarding the "one stop shops", discussions have been thorough on what we can and cannot share. For example labour, computers, receptionists. The Eastern Cape public works department has already identified offices which we could occupy today. The Justice Department, of its own initiative is also identifying office space in the Northern Cape for the provinces "one stop shop".
2. We would have liked the Deputy Public Protector to have been appointed last year. It is budgeted for.

The Chairperson pointed out at this stage that the increase in the Public Protector’s budget is much less compared to the Human Rights Commission and the Gender Equality Commission.

Mr O’Malley (IFP):
1.The IFP wants provincial public protectors.
2.The submission states that the Justice Portfolio Committee does not play an oversight role over your Office, could you comment on this further?

Some confusion regarding the submission was cleared up by the chairperson. He stated that the submission was not the Public Protector’s annual report, but a submission. Adv Baqwa added that the submission amounted to an ad hoc report. The 1997 annual report is still in the process of being compiled.

Adv Baqwa's replies to Mr O’Malley's questions:
1. Regarding provincial protectors, of all the provinces which had legislation providing for a protector, none of them have appointed one.
2. In the UK there is a special parliamentary committee set up to play an oversight function over the Public Protector. Section 2(1) of the Public Protector Act (SA) talks about a committee which has subsequently fizzled out. Adv Baqwa stated however, that he recognized the authority of any committee to call the Public Protector to account.

Mr Hofmeyr (ANC):
1. We appreciate the work that the Public Protector is doing and the pressure under which the Office is working. But we also have a criminal justice system which also needs to be dealt with. A budget of R22 million would be needed to set up provincial offices. This is about four and a half times the 1996/97 budget.
2. It would be useful for us to see the rate at which complaints are resolved per month. Your submission states that there are approximately 280 new complaints per month. How many of these are being finalised per month?

Adv Baqwa's replies to Mr Hofmeyr’s questions:
1.The figure for provincial offices is based on the budget of the Public Protector's office in the North West province.
2. The computer system is not set up to give the statistics asked for. Statistics on rate of resolution will be given later.

Ms Botha (ANC):
1. Regarding the Eastern Cape, you said that you recently visited the Premier and that they are keen to get the province’s administration back on track. What steps are going to be taken to get things back on track?
2. You give a lump sum for staff expenditure. Is it possible for you to give us a breakdown of that figure?

Ms Ngwane (ANC), Ms Chohan-Khota (ANC) and an unidentified MP (ANC) asked the following questions:
Does the fact that you have to ask for money from the government affect your independence?

There are some non-recurring expenses in your budget, for instance office equipment. Has this been taken into account in your request for additional funding? What does "sundry expenses" include?

You state in your report that the Eastern Cape is unable to get its administrative act together. Does this mean that there is no co-operation with the office of the Public Protector?

The monitor had to leave at this point. Should you want to find out what happened next, please contact the Justice Committee researcher, Jim Matemane, on 403 2283.

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