Review of State Institutions Supporting Constitutional Democracy
07 February 2007
A summary of this committee meeting is not yet available.
COMMITTEE ON REVIEW OF STATE INSTITUTIONS SUPPORTING DEMOCRACY
7 February 2007
Chairperson: Prof K Asmal (ANC)
Documents handed out:
Public Protector’s Responses to the Questionnaire
Annexure B – Three-year Strategic Plan
Annexure C – Annual Plan 2006
Annexure D - Report of ad hoc Committee on operational problems in the Office of
the Public Protector
Annexure E – Service Delivery Indicators
Terms of Reference
Public Protector 2005/06 Annual Report available shortly at www.publicprotector.org
Public Protector Act 23 of 1994
Public Protector Amendment Act 22 of 2003
A Nation in the Making: A Discussion Document on Macro Social Trends in South Africa 2006
Audio recording of the meeting: Part1 and Part2
The Office of the Public Protector was the fifth body to appear before the Committee. Some of the key issues that were raised were the Office’s interaction with Parliament, their budgetary process and whether its functions ought to be redefined. The Committee raised concern that the Office of the Public Protector could not defend its budgetary proposals.
Prof Asmal’s opening remarks
Prof Asmal welcomed the delegation from the Office of the Public Protector (OPP) to the Committee’s fifth interaction. The delegation comprised Adv Mabedle Mushwana (Public Protector), Adv M Shai (Deputy Public Protector), Ms P Mogaledi (Acting Chief Accounting Officer), Mr Z Docrat (Chief Finance Officer), Adv S Fourie (Head of Special Investigations) and Mrs S Thoke (Chief Executive Manager Provincial Coordination). He noted the need to adjourn for the memorial service for Mrs Adelaide Tambo but if need they could continue afterwards.
Clarifying the need for a certain degree of formality in the proceedings, Prof Asmal said that the Committee’s interactions with the different bodies were official hearings. The Committee’s work represented one of the most significant activities as far as the general oversight function of Parliament that it had undertaken, since its inception more than twelve years earlier.
As before each interaction, Prof Asmal explained that the Committee did not represent an inquisition. The terms of reference, which had been adopted by the National Assembly, guided the Committee’s interactions. In addition, matters arising from the OPP’s responses to the questionnaire, the Committee’s reading of their annual reports, and representations made by non-governmental organisations (NGOs) as well as individuals would also be considered.
The provisions of both the interim and the final Constitution made clear that the Public Protector was regarded as one of the most important constitutional bodies supporting democracy. The President, speaking at a meeting of the International Association of Ombudsmen and women, had said that this office was central to a democratic order.
Guided by the terms of reference, the Committee would consider the efficiency and efficacy of the OPP as well as its relevance, and proficiency in meeting the needs of the society over the past twelve years. He referred in particular to the provisions of Section 181(3) of the Constitution, which required organs of state to, through legislative and other measures, assist and protect the institutions to ensure their “independence, impartiality, dignity and effectiveness”.
The format of the interaction did not require the OPP to make an opening statement. The Committee would also not require reports on individual cases as it was interested in a broader picture. He emphasised that the discussion and questions asked at this stage were exploratory and that no decisions should be construed from questions raised. The Committee would, after extensive deliberations, capture its decisions and recommendations in a report, which would be tabled before the National Assembly.
Prof Asmal noted that in response to the first question the OPP stated that it complied with the principles of cooperative governance, especially the need to cooperate with other organs of state in all spheres of governance. The Constitution said that the principles of good governance applied to three spheres of Government. He wondered whether this did not result in a severe tension between the requirements of good governance (cooperation, mutual trust and good faith) and the requirement to investigate misconduct and maladministration of organs of state without fear, favour or prejudice.
Adv Mushwana responded that cooperative governance was a theme that permeated the whole Constitution. The ‘cooperation’ referred to in the response should not be understood as there being formal memoranda of understanding or agreements on how the OPP should do its work. The Public Protector Act and the Constitution provided the OPP with extensive powers of investigation. The OPP could for instance conduct searches and enter premises but had very seldom needed to use these powers precisely because of the cooperation received from government departments. Since he had taken office for instance, the OPP had only needed to subpoena two departments. These subpoenas were later withdrawn because the departments eventually cooperated. The OPP worked in such a manner that it became “acceptable to the government” who understood what investigators looked for and cooperated with the OPP by submitting the requested information. The cooperation did not refer to a working relationship whereby the OPP was prevented from performing its function.
Prof Asmal took this explanation to mean that the relationship was not antagonistic. The Committee would come back to the matter later.
Ms C Johnson (ANC) said that there had been significant criticism of the OPP. The Public Service Accountability Monitor for instance said that because it interpreted its mandate too narrowly, the OPP had been generally weak, particularly with regard to oversight over the Executive. Since the OPP had not had a chance to respond to the statement in public, she wondered whether the delegation could explain to the Committee exactly how it viewed its legal mandate.
Adv Mushwana replied that he had heard that criticism from another source as well. Currently there was a matter in court that would deal specifically with whether the OPP interpreted its mandate too narrowly. It would be interesting to see how the courts ruled. The criticism quoted was made about to two particular cases. Since they could not refer to specific cases, he would not be able to answer the question in greater detail. However that statement had not been substantiated and could thus be referred to as a “sweeping statement”. Allegations of a too narrow interpretation of their mandate or of lack of independence were made with regard to two or three cases, but no one spoke of the more than 50 000 cases the OPP had finalised within the last four to five years.
Prof Asmal said that part of the problem the Committee had around interpreting the OPP’s responses was the generalness of the responses and the quoting of large extracts of legislation and the OPP’s programme of action. The Committee needed more specific information.
Ms Johnson said that in their response the OPP mentioned that there was a “perceived overlap” between their role and that of the South African Human Rights Commission (SAHRC). The OPP’s statistics showed they were receiving more complaints from the public, than the SAHRC was. This was despite the fact that the latter’s case load increased by about 20% per annum. She wondered whether the OPP was experiencing a similar increase in its case load.
Adv Mushwana said that the statistics in the Annual Report showed a rise in cases from 2002 to 2004, after which they started decreasing a little. The OPP’s workload had stabilised to the extent that they could now better manage cases.
Having said this he felt it necessary to explain that because of the new approach they had adopted for dealing with cases, one could say that despite the decrease in the number of cases, the workload had increased.
The OPP now made sure that a closing report on every finalised case was submitted to the relevant ministry or to Parliament. The process of writing such a report consumed much time. The fact that investigators also investigated cases related to the numerous new visiting points also impacted on the load. The OPP now investigated the root causes of complaints.
Prof Asmal noted that there had been a decline in cases received. In 2004/5, 22 350 cases were received, and in 2005/06, only 17 415. He wondered what had resulted in the decline. The cases brought forward in 2004/05, numbered 9 292, and had, in 2005/06, increased to 14 103. He wondered why there was a decrease in one and an increase in the other.
Adv Mushwana said that the new approach to investigations partially answered this question. The OPP now investigated why a person had had to resort to approaching the OPP to address their concern i.e. they were looking for the root cause of complaints. If they received a number of similar cases about one particular department, it suggested that there was a systemic problem. In such case the OPP conducted systemic investigations.
In addition the writing of reports took up much time – previously investigators only concluded investigations and did not need to write reports. They had started writing reports to enable anyone who wanted to quality assess the OPP’s work to do so. This gave people the opportunity to assess the quality of the reports as well as the impact the OPP had. All these changes contributed to the increase in the number of cases carried over.
The OPP had also started implementing a strategy to address the increase thus the number of cases carried over had, in this financial year, declined. Over the coming two days, they would deal with the cases at the Western Cape offices that had been carried over.
Prof Asmal said that the Committee would later consider the delays more closely. He realised that there could be a pattern of abuse and misbehaviour by a particular department and that these cases had a systemic investigation. However, this meant a delay. He asked if a distinction could not be made so that a social welfare or social security complaint could receive a speedy response while a systemic failure awaited an investigation.
Adv Mushwana said that it was extremely difficult to get speedy responses from certain departments. Appeals, for instance, were one of the “nightmares” the OPP had to deal with. Due to the change in the legal system certain cases were automatically ‘appealable’. There were a number of criminal appeals that were currently under systemic investigation. These investigations were near conclusion. Now that there had been a change in the law, many correctional service officials did not know how to process appeals. The OPP had conducted workshops in the Free State to explain the procedure to be followed when appeals were received.
In matters related to Unemployment Insurance Fund (UIF) payments one also struggled to get answers speedily. One often had to go from one office to the other. Often one corresponded with one manager in a section, only to find that that manager had been replaced resulting in the process having to start all over again. Pension payments posed similar challenges.
Prof Asmal asked whether he could assume that the OPP did not delay the investigation of a particular complaint, while they investigated the possible systemic problems.
Moving on he said that the OPP had very wide terms of reference as far as the complaints they could receive from the public. Under Section 4(a) they also had a very important power whereby they could, on their own initiative, investigate certain matters. This spoke directly to the OPP’s function and was therefore a very important matter for this Committee. How many such investigations had the OPP had undertaken in the last twelve years?
Adv Mushwana was not in a position to supply information related to the last twelve years since there had not been much archived information on that.
Prof Asmal wondered aloud about what this reflected about the institutional memory of the OPP.
Adv Mushwana said that the Annual Report listed the OPP initiated investigations. In the strategic plan they set out the minimum number of cases the Office had to investigate on their own initiative. Their limited institutional capacity impacted on the number of cases they could investigate. He said that many appeals were investigated on the OPP’s own initiative.
Prof Asmal realised that third parties could refer matters to the OPP. He pointed out that according to the Annual Report, two and a half cases had been investigated (one was withdrawn) and asked that the OPP supply the Committee with a list and brief description of the cases it had initiated over the last five years.
Mr S Simmons (UPSA) noted a contradiction in what the Public Protector said about case loads having decreased and the workload has stabilised. According to paragraph 8.11 of the response document, the number of complaints received were increasing.
He also wondered if the OPP had made a projection of immediate as well as future capacity requirements, bearing in mind the problem of retention of skilled staff.
Adv T Masutha (ANC) said that if one looked at Section 182(1)(c) of the Constitution, one found that it was much wider than subsections (a) and (b). He wondered how widely the OPP interpreted sub clause (c) and asked what forms of remedial actions had been taken so far.
Adv Mushwana replied that the remedial action taken varied from case to case. The OPP had recently recommended to the Department of Justice that, in cases where a person’s rights had clearly been violated, instead of waiting for that person to institute an action, an ex gratia grant be paid. The OPP found that sometimes government officials, despite it being clear that they were wrong, would defend a matter which was clearly wrong. In the end it was still the tax payer that suffered.
In high profile cases specific recommendations were made. The President’s responses to recommendations gave an indication of how he wanted a specific matter to be resolved. When the OPP made a recommendation, each manager in the investigative unit, reported on a quarterly basis as per the new audit requirements. Successes were contained in the quarterly reports.
He said that within remedial action there was also room for conciliation and mediation, which could bring parties together - a negotiated settlement had the potential to restore relationships. The OPP saw it as part of their mandate not only to be punitive, but also to assist in reconciliation through negotiations.
Mr J van der Merwe (IFP) felt that remedial action was very important. He said that he had complained to the OPP about a minister who had ignored his letters for nearly a year. Remedial action was taken immediately and he received what he had been waiting on for nearly a year. He wondered what action the OPP was empowered to take against such officials.
Adv Mushwana replied that Mr van der Merwe was raising a matter that was fundamental, not only to ombuds in South Africa, but also to those across the world. The decisions of the ombudsman in Ghana for instance, had the force of law. The OPP however could only, as per the Constitution and legislation, recommend remedial action. This was an impediment to their work.
Prof Asmal interrupted saying that all Chapter 9 bodies made this complaint. In serious matters recommendations were made. He wondered whether the OPP did not have “other armoury”. The OPP compiled an annual report and the legislation allowed them to make a special report to Parliament for instance. On how many occasions, in the last five years, had a special report had been made to Parliament with a request for a special debate on the issues raised in that report. There was also what he termed “the oxygen of publicity” – such as press conferences and statements.
Adv Mushwana referred to an occasion where Prof Asmal himself had made a complaint to the OPP on communication within a specific department. The OPP conducted an extensive investigation, tabled the report to Parliament, made follow ups and made recommendations which were tabled in Parliament. It was only after three years that they were called to talk to that report. The OPP also needed Parliament’s assistance in this regard. The OPP could only make recommendations. If a minister did not implement a recommendation, the OPP’s remedy was to approach Parliament so that Parliament could, as per their powers, summons that minister to give an explanation on why the recommendations were being ignored.
Prof Asmal reminded the OPP that it took them two years to respond to his complaint against the Ministry of Water Affairs, and their report was only published after he had stopped being Minister.
Mr S Dithebe (ANC) said that one of the terms of reference was to establish if the Chapter 9 and related bodies were suitable for the South Africa environment and whether their consumption of resources was justified. He wondered whether the OPP saw its role expanding in the future. According to the report by the National Democratic Institute of International Affairs several countries were debating whether to expand or redefine their current model.
Adv Mushwana replied that although the question was multi-faceted he could immediately respond that the ombudsman would remain, particularly if South Africa continued having the vast majority of people living in the rural areas. The OPP specialised in service delivery – requests for identity documents, disability grants, UIF, etc. These were important matters to the person living “in the back of beyond”. Until the socio-economic situation had improved considerably, the OPP would not be redundant. As an official within the international bodies of ombudsmen, he could state that there was not a decline, but that all countries were beginning to have these offices.
Interjecting, Prof Asmal said that the Committee understood the need for an ombudsperson but that Mr Dithebe had been interested in whether there was a need to redefine its role. In Ireland they had just appointed an ombudsperson for the police and in the United Kingdom, they had an ombudsperson for local government matters.
The question of delivery was not the OPP’s primary role - abuse of discretion, maladministration, freedom of information and corruption was. The OPP had “just grown and grown and grown” in the past fourteen years. In the context of a developmental state, should not the OPP perhaps be redefined. The delay in responses to questions and the carrying over of large numbers of cases were a problem. The President had said that efficient and early decision making was vital. In the light of developments in other countries, who had ombudspersons for different areas, did the Public Protector think it necessary to redefine the South African OPP?
Adv Mushwana replied that he knew for a fact that there was a move to do away with the proliferation of ombudsmen in England. In Australia they were restricting the use of the name ‘ombudsman’ because it was confusing. It did not refer to the ombudsman in the traditional sense of the word. Each department had to have an ombudsman as an interval mechanism.
Prof Asmal wondered how effective it was, in a country of 45 million people, to have only one office. The OPP also had functions in relation to the defence force.
Adv Mushwana replied that the Department of Defence was in the process of establishing an ombudsman. The OPP had made a submission on this only because there was a clause in the defence legislation that would have over-ridden the function of the OPP. There was nothing that prevented different departments from having their own ombudsmen. One would then however be eroding the notion of the ombudsman in its classical sense – the office of the ombudsmen was the last resort. If one only had the smaller bodies, one would not have a “super structure” to resort to once everything else had been exhausted.
Ms Johnson noted that the OPP had argued that to streamline their investigation process their enabling legislation would have to be amended.
Mr Stoffel Fourie (Head of Special Investigations) said that the enabling Act had been last amended in 1998 due to certain changes in the Constitution. The OPP would like to see that its investigative functions and procedures be brought in line with developments internationally.
In addition the Act still provided that the Public Protector had to be a judge. Only in the absence of a suitable candidate, other occupations could be considered. The amendments thought necessary related to minor issues and not to matters such as powers, functions and definitions.
Prof Asmal felt that that would be a “piffling” matter since Parliament had taken into account that they should not appoint a judge. The more substantial issue related to the fact that one needed to be a Member of Parliament for more than ten years to be considered for the position of Public Protector. The Committee would look at whether this was still relevant. In some countries one needed to be an existing civil servant to be an ombudsperson.
Mr Fourie said that they would leave that up to Parliament to decide on.
Ms Johnson wondered how the OPP measured the impact of the remedial actions on departments as well as whether recommendations have been implemented.
Mr Fourie responded that recently the OPP made recommendations around the disciplinary action that should be taken after a violation of a code of conduct. The OPP would give the entity reasonable time to respond to the motions and procedures. Follow-ups started three to six weeks later and the head of the institution was expected to give a response as far as the progress that had been made. If they were not convinced that the recommendation had been implemented, it was taken to a higher authority and then eventually reported to Parliament. Failure to implement recommendations would also be contained in the OPP’s Annual Report to Parliament.
Adv Mushwana added that implementation of their recommendations was critical. If not, the OPP might as well not be there. One of the strategic objectives required every manager to follow up, where a report had been issued, and to then report on a quarterly basis.
Mr Simmons quoted Section 182(4) which said that the OPP had to be accessible to all persons and communities. Bearing in mind the vastness of the country, especially the rural areas, what practical programmes did they have to ensure its visibility so that citizens were aware of them.
Prof Asmal pointed out that the very important 2006 discussion document on macro social trends, A Nation in the Making, published by Government noted that over half of the people canvassed in a study had never heard of two of the most important bodies in the Constitution, the SAHRC and the OPP. This was a very serious matter since South Africa was now nearly twelve years into its democracy. The Committee would be carrying out its own survey within the next month.
Adv Mushwana said that the OPP had also considered these figures. An NGO had reported that a presidential report had indicated that 73% of South Africans did not know about the OPP. He questioned the statistics and said that he would give the OPP’s side of the story and then it would be up to the Committee to decide whether the statistics were valid. The nine provincial offices were spread across all the major cities with the national office located in Pretoria. There were also six regional offices with two more in the process of being created. In addition there were more than 73 visiting points which were visited at least once or twice a month in order to popularise the OPP. They were located in the most rural areas where there were no regional or provincial offices. He did not argue that it was adequate, but there were certain realities that needed to be kept in mind.
Ms Thoke added that they were conducting clinics across the country. They had started with 43 clinics in 2004 and in 2005 there were 78 clinics which had received more than 1 000 cases. This proved that people were aware of the OPP.
The OPP was identifying stakeholders from within the CBO, NGO and departmental sectors who could partner with the OPP in outreach programmes. They conducted workshops and public awareness programmes to ensure that people knew about the offices, so that they could access them and lay claim to their rights.
Prof Asmal said that the Committee had to accept the validity of a document published by the government. He felt that that every one should read the macro social policy document very carefully as it was a very important document. In nearly every country in the world, people were ignorant about the ombudsperson. What was needed now was a self critical reflection on these issues and so that the matter could be addressed. He added that there were ways of achieving greater visibility and expanding knowledge – leaflets could be placed in post offices and welfare offices, which most people used. Such steps would also be much cheaper than setting up regional offices.
Adv Mushwana said that with the Civil Society programme established in the OPP, they now have a directorate that dealt with outreach. The EU would be funding the programme over the next two years and would be phasing it into the programmes of the OPP. They were now working on the terms of reference that would govern this programme.
Mr Dithebe noted that the OPP suggested that the overlap between its functions and those of other bodies was very slight, if at all. The OPP had a memorandum of understanding (MOU) with the Public Service Commission (PSC) in which they delineated their roles and responsibilities. The OPP dealt with complaints from the public, while the PSC dealt with complaints from within the civil service. He wondered why the OPP thought that there was no overlap with the PSC or even the SAHRC.
Prof Asmal noted that page 31 of the OPP response document read that much needed to be done to improve collaboration with the SAHRC and the Commission for Gender Equality (CGE). He wondered why steps had not been taken and what would be done to address the matter.
Adv Masutha referred to the OPP appearing before the Ad Hoc Committee on Operational Problems in the Office of the Public Protector, where issues of overlap (with a Chapter 8 institution) had been one of the issues raised. He asked if the OPP had now been able to develop a proper framework within which to address collaboration and cooperation.
Adv Mushwana explained that because the OPP and the PSC had separated their roles and functions and had an MOU, there was no overlap anymore. In terms of the Constitution and the provisions of the legislation there was no overlap. The agreement was intended to prevent collision in the operation of the two bodies.
Mr Fourie said that he had been with the OPP since its inception. The PSC, OPP and SAHRC had at that time raised concerns around what they would do when a person lodged the same complaint with all three of them. At that time they agreed that in terms of the promotion, monitoring and assessing of gender and human rights issues, the OPP would refer cases that pointed to a tendency of human rights abuse in a particular department or institution to the SAHRC. Where it was an isolated incident, they would deal with the matter in terms of the legislation and then recommend remedial action. He could not think of many cases where overlap resulted in difficulties.
The OPP received some complaints with regard to the closing of residential areas as a form of crime prevention for instance. At the time the SAHRC was conducting hearings and investigations into the matter. The complaints were passed onto the SAHRC who took them into account when they finalised the hearings. Mr Fourie agreed that there could be better collaboration.
Prof Asmal asked the OPP to respond directly to what kind of steps could have been taken and why they had not been taken.
Mr Fourie said that there could be better communication between institutions and that they could meet on a more regular basis. If capacity allowed it, the OPP could identify more investigations to be done on own initiation, and in collaboration with other bodies and thus submit more joint reports. So far this had not happened because the OPP started off very small and was in the process of establishing itself by setting up offices in the provinces and trying to be more accessible. It had also not had the capacity nor the time to explore the matter further but was now in a better position to do so.
Prof Asmal reminded the OPP that the terms of reference spoke specifically of collaboration between Chapter 9 and associated bodies. The Committee’s experience so far was that, if there was collaboration, it was mostly a “publicity thing”. There was very little real collaboration in the form of joint initiatives, joint reporting, and joint campaigns. He understood now that the OPP would take measures to improve collaboration but that they did not know what these measures would be.
Adv Mushwana responded that there were many reasons why collaboration had so far been difficult. The bodies’ strengths and geographical spread were not the same. Some bodies were better capacitated. If there was no structure at a local level it was difficult to collaborate in activities. Now that the CGE almost had all their offices in place and with their Civil Society programme, collaboration would improve. The civil society programme was a joint SAHRC, CGE and OPP effort. The OPP now made sure that when they established offices, provision was made for the SAHRC and the CGE where possible. He added that the OPP had conducted a joint investigation with the CGE into child maintenance cases.
Prof Asmal said that because the written responses had been very general as far these efforts were concerned, the Committee had been unaware of them. He added that the OPP still had not answered as to what efforts they would undertake to improve the situation. He reminded the OPP that Parliament had passed the enormously important Promotion of Access to Information Act (2000) and one of the unintended consequences was that no one actually tried to determine whether the legislation worked.
Submissions received said that the SAHRC and the OPP had jurisdiction in this regard. What should have happened in a well ordered society, was that immediately the legislation had been passed, an agreement between the SAHRC and the OPP should have been made indicating how they would enforce and protect the legislation.
At present the only people who could get information were those who could afford to go to court. Departments did not even have adequate systems to accommodate the freedom of information legislation. The Committee would report to Parliament on how legislation was being implemented and would use, as one of the case studies, the freedom of information legislation because there was concurrent jurisdiction.
Adv Mushwana replied that the OPP operated within what the law specified. They had not entered into any other arrangements other than the 'joint investigation' with the National Prosecuting Authority (NPA) and the Auditor General. The nature of collaboration was determined by the nature of the cases they received. The legislation required that if a crime was committed it should be sent to the relevant institution. If a matter can best be dealt with by another Chapter 9 body, it got referred to that body immediately.
Prof Asmal said that the Committee was charged with reporting to Parliament on the proliferation of bodies (Parliament had appointed 29 such bodies). All the Committee had heard about so far was “reactive collaboration” and no proactive activities to “sell” themselves and to work together. The Committee would take this into account when they reported on the nature of collaboration. South Africa was a relatively poor country and every Chapter 9 body wanted more money, yet could not tell the Committee exactly for what they would be using that money. One did not need more money to work together on collaborative programmes.
Adv Masutha elaborated that his question had related more specifically to the OPP’s collaboration with Chapter 8 bodies and the NPA specifically, especially since both it and the OPP had investigative powers. The need for such collaboration had arisen sharply in the Ad Hoc Committee on Operational Problems in the Office of the Public Protector. It had then been recommended that the two institutions develop a framework on how to collaborate in situations where the NPA would actually investigate the case.
Adv Mushwana replied that there had not been any formal collaboration between the NPA and the OPP. If the OPP analysed a case and found that the amount of corruption occurring amounted to a crime, they referred the case to the NPA immediately. If after the conclusion of the NPA’s investigation they felt that there was still room for the OPP to investigate, they did so.
Mr van der Merwe recalled that the OPP dealt with a large number of criminal appeals taking too long to appear before court. He wondered how the OPP conducted their systemic investigations. A week earlier the Justice Portfolio Committee had received a briefing by the Justice Deputy Director General who reported that there was a 6 000 case backlog. He wondered what role the OPP played in such cases.
Ms Mogaledi responded that the complaints the OPP received related to delays in setting the matter down for hearing. Currently the OPP was engaging both the NPA as well as the Department of Justice. They had so far found that no systems and procedures to deal with the appeals had been put in place between the courts, the department and correctional facilities. The OPP’s investigations thus were around how the Department dealt with those appeals. The courts for instance did not have a database for how they recorded the various appeals nor did they have a follow up procedure. Correctional Services too did not have a database that could accommodate the transferral of prisoners form one centre to another. The OPP would make recommendations on this. She added that capacity constraints at court level also impacted on their ability to deal with the backlog. Most courts were running two years behind.
Mr van der Merwe said that there had been a Sunday Times article on this matter that week. A man had waited four years for his appeal to be heard and was then found not guilty. He wondered whether the OPP would take any action on this.
Ms Mogaledi replied that the OPP had noted some of these cases and had even done some of their own investigations. They found that in most cases there was a 30% chance that the appeal would be successful. In some instances lack of capacity in the high courts impacted on speed with which a matter was addressed.
Prof Asmal noted that the OPP had a complaints mechanism dealing with complaints against the OPP itself. He wondered how many complaints had so far been received and what recommendations had been made.
Adv Mushwana replied that the OPP had tried to give a detailed response to this question in their response document. The complaints received mainly came through the Office of the President. Some came from the Speaker and lately some came through the parliamentary committees too. The OPP looked at the origin of the complaints. Once complaints were received they were directed to the Public Protector, and he then referred them to one of the investigative units along with specific instructions on how to go about addressing each complaint to finality. He added that although the OPP did receive complaints about itself, they were very minimal.
Prof Asmal asked the OPP to supply the Committee with the figures for such complaints spanning the last five years.
Adv Mushwana responded that this might be difficult.
Prof Asmal wondered whether the OPP did not have systems in place for recording these details. He added that such systems, or lack thereof, spoke to their efficacy.
Adv Mushwana replied that he would have to verify the figures so as not give the Committee a guesstimate.
Prof Asmal said that the Committee would like to see the number of complaints over the last five years, how they had been dealt with and whether the persons concerned had been informed of the outcome.
Ms Johnson noted that the OPP listed their budget, retention of staff, cooperation by organs of state and the media as its four major constraints. The budget however indicated that they had received and would continue receiving significantly more money: R55 million in 2006, R67 million in 2007 and R74 million in 2008. She asked the OPP to comment on why they saw these factors, specifically the budget as constraints.
Adv Mushwana replied that the Mr Docrat would be able to supply the Committee with the real figures. Since he took office and in his “reading of the past”, the OPP had never been able to fill all their posts because they did not have sufficient money. They drew up their organogram to support their strategic plan. One could only appoint the number of people the budget allowed. They had received approval to appoint a Chief Executive Officer (CEO), but since they did not have the money, that post still had not been filled.
Prof Asmal said that the Chief Financial Officer (CFO) was only appointed after an enquiry in August 2006. An acting CFO had now filled that position but there was still no CEO. The OPP mentioned that the employment equity plan had had some positive results and presumed that the OPP had a transformation plan. He saw that there were no coloured people appointed at management level. He had thought that if one looked at representivity one looked at it across the board – regionally and nationally. Coloured people made up 54% of the population in the Western Cape. It was difficult to understand why senior positions had not been filled when people from other population groups could have been available. He wondered whether the OPP had a transformation plan in the context of the Employment Equity Act (2000). Looking at the composition of the senior and middle level staff, he did not see that they were truly representative of South Africa. The representation was disproportionate and he asked why this was the case.
Adv Mushwana responded that the rank of the positions played an important role. The OPP did employ coloured people in the Western Cape where they were predominant. It all depended on the job applications received. Although they wanted to comply with the legislation, practicalities often interfered.
Prof Asmal said that here was obviously tension between delivery and representivity. How was the OPP able to perform the function that Parliament and the Constitution had conferred upon it, if posts were not filled while the money was clearly available?
Adv Mushwana responded that posts were not filled because the OPP did not have the money to do so. It was not the case that posts were not filled because the OPP was unable to find candidates of a particular colour.
Prof Asmal said one of the reports received from the National Treasury indicated that institutions set up regional and provincial offices without taking into account the long-term funding of those offices. All he was pointing out was that a position of central importance such as CFO was only filled after Parliament’s intervention. It was inconceivable that a body with such enormous powers and administrative demands did not have a CEO. This affected their efficiency. The priority should have been to fill that position.
Adv Mushwana responded that in the case of the OPP it was not true that regional offices were set up without taking into account the financial constraints. They had a standing agreement with National Treasury, where it allocated money for the establishment of two regional offices a year. Therefore any regional office that was set up, was set up within the bounds of that agreement.
He added that it was not wholly true that the CFO had been appointed after instruction from Parliament. The position was advertised a month after the previous CFO had resigned. The IT officer had also resigned and the interviews for this position were in the process of being finalised. The OPP did not have enough funds to appoint a CEO. This position had now been advertised. As the post was approved at Level 14 the OPP was unable to find appropriate candidates. They then wrote to National Treasury with a request to upgrade the post. National Treasury did not approve the request saying that the Department of Justice had said that a CEO had to be appointed in terms of the public service regulations. National Treasury also said that the legislation had to be amended before an appointment could be made.
Prof Asmal noted that it appeared as though there was a degree of administrative control over appointments by the Department of Justice and National Treasury. This affected the body’s independence. He requested that National Treasury’s response letter be forwarded to the Committee. While he realised that there had to be financial supervision, the degree of supervision reported seemed to interfere with the OPP’s work.
To the questions around staff retention and the OPP’s relationship with the media, Adv Mushwana responded that the OPP was formulating a policy for staff retention. They already had a service provider who had formulated a remuneration policy and they were nearing their job evaluation. This process was ongoing. He added that the OPP did not expect the media to not be critical of them. They welcomed criticism but wanted it to be constructive. There were instances where criticism was “not genuine”.
Ms D Smuts (DA) said that she was disappointed to see that opposition parties had also been listed under the constraints. The Pubic Protector had just reiterated that the OPP’s problems with the media were because it was sensationalist and liked to cover “highly politicised matters”, while opposition parties made complaints and reacted to findings in order to get “public exposure”. She was disappointed because they were “all part of a great system” which had to make the democracy work. She said that the fourth estate was an indispensable part of that system. All Members of Parliament had a duty to exercise oversight and to see that that principle was upheld. She thought that these allegations were “most unfortunate” when in fact “we are addressing the abuse of power”. The OPP was uniquely placed to address the abuse of power on behalf of all citizens and that rested together with their statements on cooperative governance. She said that she would have appreciated a comment from the Public Protector but noted with regret that he had already nodded, thus confirming that he stood by what he had alleged.
Not allowing any comment from the OPP, Prof Asmal said that making those statements in their report to Parliament had been “imprudent” and “injudicious”. He was expressing the views of the Committee when he said that they were “unnecessary and unfortunate” and should not have been made. However much he wanted to disagree with the opposition, the press was not an obstacle but part of a “democratic flowering in our country”. It was the OPP’s newly appointed press official’s duty to reply to any unfortunate or malicious reports.
Adv Mushwana said that he wanted to give reasons why he had made those statements.
Prof Asmal would not allow this as the OPP had ”made its case already” and the Committee had responded.
Adv Mushwana said he had facts to substantiate what he had said in the response document.
Prof Asmal thought that this was an unnecessary departure from the proceedings. The statement had been made, and its justification would be left for another occasion. Two members had raised queries around it. As chairperson of the Committee he had to uphold the dignity of the Chapter 9 bodies. He did not think that that would be done if he allowed the matter to be debated.
Ms Johnson referred to the OPP’s statement that their liaison with the Justice Portfolio Committee was insufficient and they proposed that a special parliamentary committee dealing only with Chapter 9s be set up. She asked how a special committee would be better able to assist them and wondered if, as part of their cooperative governance, it was not the OPP’s responsibility to, approach the Justice Portfolio Committee when they had matters to bring to Parliament’s attention.
Adv Mushwana responded that their experience was that when they came to Parliament, once a year perhaps, there were often just two or three Members of Parliament who could attend the meeting. The OPP wanted to interact with Parliament more.
Mr Simmons wondered whether the OPP felt that more than one oversight committee would be more ideal in that it would ensure that oversight was performed with absolute diligence.
Adv Mushwana replied that only three of the bodies reported to the Justice Portfolio Committee, while all other bodies had been assigned to specific committees. He suggested that committees be capacitated and that the interaction be increased, so that they could better work together.
Prof Asmal said that the Committee would be receiving a submission from the portfolio committee too. Dissatisfaction with Parliament was a general trend. He took it that the OPP would like a more systematic relationship with Parliament.
He added that if the OPP wanted to respond to the queries raised by Ms Johnson and Ms Smuts they could write to him, giving him full details and he would consider whether it was appropriate for the Committee to take up the matter. It was not his intention to silence the OPP – the present meeting was just not the proper forum at which to discuss the matter.
Ms Johnson continued her questioning and said that the OPP argued that it had indirect oversight over other Chapter 9 bodies. She wondered how the OPP had arrived at that conclusion considering that Section 181 (2) of the Constitution said that the bodies were independent and subject only to the Constitution and the law.
Adv Mushwana responded that the OPP had received a complaint against the SAHRC. Someone had submitted a complaint to the SAHRC, which had not been dealt with. The same had happened in relation to the CGE. His statement thus referred to cases where complaints were made against these bodies and did not mean that the OPP could review these bodies’ decisions.
Adv Masutha wondered whether the OPP had considered the normal reporting relationship that existed between Parliament and the Chapter 9 bodies. Did the OPP think that this would perhaps require an extra committee?
Adv Mushwana replied that it would be best if, for instance the OPP compiled a report on matters related to minerals and energy, the relevant portfolio committee should receive the report. It would be good if Parliament interacted on substantive matters with the OPP in order to assist them. When the OPP made a recommendation they wanted it to be implemented and felt that Parliament could play a role in this.
Prof Asmal said that it was the first time that such a recommendation had been made. He understood that the OPP was suggesting that when they made a recommendation they would like the relevant portfolio committee to address it. The Committee would note this recommendation.
Returning to the OPP’s budget, he noted that the OPP felt that the budget process was fair. He requested them to explain their budget process in cases where they needed to request a greater allocation.
Mr Docrat replied that the budgetary cycle was drawn up on the basis of a three year cycle, which was then approved by Parliament. Before each financial year, the OPP reviewed that budget to see if they had other funding initiatives or other projects that needed to be funded. They then based their new submission to Parliament on that review. In this financial year they received R74 million but their unfunded priorities amounted to about R22 million. This was then submitted to the Department of Justice who submitted it to National Treasury.
Prof Asmal wondered whether, at that stage, there was any interaction between the Department of Justice and the OPP.
Mr Docrat replied that the OPP was a programme within the Department of Justice who assigned budget coaches to each of these programmes. The OPP met with their budget coach, who took the submission and presented it to the chief director of budgeting who eventually submitted it to the Justice CFO who made the final submission to National Treasury.
Prof Asmal wondered whether there was ever an opportunity to defend their proposals.
Adv Mushwana replied that Chapter 9 institutions had someone to deal with their budget appointed to them.
Prof Asmal enquired whether the Department of Justice was merely a conduit or whether they scrutinised the OPP’s budget.
Adv Mushwana said that the OPP did not have the right to defend their budget. The Department of Justice thus functioned as its spokesperson during the budget process.
Prod Asmal presumed that the Department of Justice could thus decide whether the application for a greater allocation, was appropriate or not.
Mr Docrat replied that the OPP submitted their proposal to the Department of Justice who in turn submitted it to National Treasury. If there were any questions, the Department answered them on the OPP’s behalf. The OPP did not meet with the National Treasury.
Prof Asmal presumed that the Department of Justice could thus either defend or not defend the OPP’s budget.
Mr Docrat explained that the OPP’s unfunded priorities amounted to R22 million, but that National Treasury indicated that they had been allocated only R4 million of this.
Prof Asmal wondered what unfunded priorities were.
Mr Docrat explained that these were the additional funds the OPP would require to fund the new initial projects.
Prof Asmal asked how the passing of the anti-corruption legislation would impact on the OPP. He wondered who would look after its funding when complaints related to corruption came to the OPP. He felt that the OPP would need an expert to deal with the new legislation.
Mr Docrat replied that the OPP would have to reprioritise and possibly "un-fund" some of the projects that would have been funded in order to fund such investigations.
Mr van der Merwe felt that it was a problem that the OPP was not able to defend its budget proposals.
Prof Asmal agreed that there were hundreds of programmes across the different departments. They had the right to defend their proposals to the budget committee. The OPP however did not have this opportunity.
Ms Smuts pointed out that the Department of Justice itself had unfunded mandates. She recalled that earlier the Pubic Protector had referred to letters written to National Treasury, and wondered whether the Department was an intermediary in these instances too.
Adv Mushwana replied that someone within National Treasury was appointed to deal with their budget. They had submitted their Medium Term Expenditure Framework (MTEF) before the injunction to appoint a CEO came from the parliamentary committee. Because they could not find a suitable candidate, they had to request additional funding. It was then that the letter was written to National Treasury.
Prof Asmal noted that the OPP stated that its success rate was very high and wondered how the OPP supported this claim. He presumed that success referred to cases where an investigation was done, recommendations made and accepted by the party concerned, and the OPP had supervised the implementation of those recommendations.
Adv Mushwana replied that that claim was related to a new strategic objective introduced in 2004/5. The OPP referred here to where recommendations were made, and the OPP monitored whether implementation took place. Quarterly reports were written in this regard. Some matters could be settled with one letter or through a telephonic conversation. Not all of the 17 000 completed cases were accompanied by a report. In speedily resolved cases, the OPP wrote only a closing report. The OPP had documentation to prove that it followed up on implementation.
Prof Asmal said that the Committee would gladly receive that information. He assumed that the OPP had a database to document these cases. The Committee would like the statistics of the cases that had been successfully completed so as to substantiate the claim that their success rate was very high.
Moving to the next question, he asked what the relationship between the national office and the provincial offices was like. Who decided whether a case was serious enough to be dealt with by the national office? Who carried out quality control on what happened in provincial cases? Was the reported success rate based on an evaluation by the national office, or on the “say so” of the provincial head.
Adv Mushwana replied that provincial offices were manned by senior managers and had investigative units too. Regional offices reported to provincial offices. The national office also had senior managers who supervised investigations. If a matter reported to a regional office related to a provincial department it would go to the relevant provincial office. If the complainant wanted the matter to be dealt with at a national level, they were allowed that latitude. If it was easier for the complainant to lodge the complaint at provincial level, that was allowed too. A report was first submitted to the regional representative who then submitted it to the provincial coordinator who then placed the matter in the ‘think-tank’, which consisted of the senior managers. They analysed every report that came from the offices before coming to a decision.
Prof Asmal asked whether this happened with all 15 000 or so cases.
Adv Mushwana explained that only where the OPP made a recommendation to Parliament or to a particular department, was a report written. The OPP had established a system where, at entry, it was decided whether a case fell within its jurisdiction.
Prof Asmal said that it might be useful to indicate which cases had been rejected because they fell outside the OPP’s jurisdiction.
Ms M Matsomela (ANC) wondered why there were more investigators in the North West than in the other provinces.
Adv Mushwana replied that the North West province had had an ombudsman even before the OPP was in existence. There used to be a system whereby they determined how many investigators were needed in a particular area. In some areas appointments were inflated because they also dealt with matters that did not fall within the OPP’s jurisdiction. The North West had three regional offices and thus had more investigators.
Prof Asmal noted that this province also had eighteen support staff which was a lot more than other provinces had and wondered whether this was not unfair to the other provinces.
Ms Mogaledi explained that the North West had taken over the former Bophuthatswana ombudsman. In other offices all services had been outsourced while in the North West there were still groundsmen and cleaners who could not simply be retrenched. Some of them were close to retirement.
Mr Dithebe asked if the corruption related complaints received, were categorised. The OPP’s 2001 report on anti corruption efforts in South Africa, distinguished between types of corruption. Had the OPP been able to show how corruption occurred so that the public could be made aware of when they were faced with possible corruption.
Adv Mushwana felt that this was an important question. The type of reporting Mr Dithebe referred to had ceased in 2001. At that time the OPP had had a system whereby they could categorise complaints. The system had to be upgraded but due to problems with the State Information and Technology Agency, it had not been revived. At the moment they did their statistics manually but would start using an alternative system, so that they could categorise information.
Prof Asmal now moved the questions to internal arrangements. The OPP response document referred to ‘alleged’ problems that took place in the office. He reminded the delegation that Parliament had made a finding that there were indeed difficulties. He advised them to reconsider the use of the word “alleged”. He wondered whether they had now solved problems to do with the delegation of functions.
Adv Mushwana replied that the CFO and the Human Resource managers had been appointed. The interviews for IT manager were being finalised and the interviews for the CEO had been completed. He could thus report that the senior position appointments were on course. In November 2006 the OPP had met to strategise and reprioritise functions. The new strategic plan would come into effect on 1 April 2007.
Prof Asmal asked whether the OPP had a register for the disclosure of financial interests of its high ranking officials. He asked where it was vested and to whom it was accessible.
Adv Mushwana replied that until 2003 there had not been a single policy in the OPP. They found that there were bits and pieces of incoherent financial information. They were now in the process of drawing up formal documentation for financial disclosure. In the interim all senior managers declared their interests to him “informally”. Before accepting gifts they had to verify whether they were allowed to do so. The OPP circulated the draft versions of all policies to all staff members. These policies were then adopted by a management committee.
Prof Asmal said that there were standard forms for disclosures available already that could be modified to suit the OPP’s needs. The Committee was very interested in disclosures and what was being done with that information. This was particularly important in the case of the OPP who also had investigative powers.
In closing Prof Asmal said that he had forgotten to introduce the Committee’s support team who, although young, were very professional and “very much committed to the constitutional order”.
The meeting was adjourned.
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