Operational Recommendations: responses by Public Protector & Deputy Public Protector

AD HOC COMMITTEE ON OPERATIONAL PROBLEMS IN THE OFFICE OF THE PUBLIC PROTECTOR
08 May 2007
OPERATIONAL RECOMMENDATIONS: RESPONSES BY PUBLIC PROTECTOR & DEPUTY PUBLIC PROTECTOR

Chairperson: Prof K Asmal (ANC)

Documents handed out:
Progress Report: Report of the Ad Hoc Committee Office of the Public Protector
Response by Deputy Public Protector
Draft Amendments to the Employment Policy of the Office of the Public Protector

Audio Recording of the Meeting

SUMMARY
National Assembly reconvened this committee to assess the response by the Public Protector and the Deputy Public Protector to the recommendations made. Each was interviewed separately and then together. A number of issues raised in the original meeting and arising from the Committee's report were fully canvassed. These included the definition of the functions of the Deputy Public Protector, her role in light of the appointment of a CEO, the allegations of sexual harassment, publication to staff of information, the pending defamation action and counterclaims, the needs of the office, supervision and monitoring of the Deputy, the need to redefine the terms of reference and internal policies, and the desirability of trying to reach finality on issues without recourse to the courts as against the parties' constitutional rights to proceed with the actions. Although both said that their working relationship had improved the Committee found it difficult to understand how that could be in light of some of the strong wording used and the pending case. The nature of the committee's recommendations and the binding nature of them was canvassed. The parties indicated their willingness to continue to work with the Committee and expressed their appreciation. A report would be presented by the Committee to the National Assembly.

MINUTES
Issues between the Public Protector and the Deputy Public Protector
The Chairperson summarised that In August 2006 the National Assembly had requested the Committee to discuss and to identify issues which had arisen between the Public Protector (PP) and the Deputy Public Protector (DPP). The Committee had sent through its report in September. The National Assembly adopted the report and said the Committee should reconvene six months later to identify whether the corrective actions had taken place, the social confidence in the relationship, and identify any outstanding issues. This meeting was convened to assess the response by the PP and DPP to the recommendations made.

Response by Public Protector
The Chairperson explained that the Committee was concerned that, in recognition of the dignity of the office, there had to be some degree of introspective investigation. Recommendations were made and the National Assembly had asked the Committee to assess the extent to which they had been carried out. He clarified that the Committee had agreed to have a brief session with the Public Protector, of a general nature, then speak to the Deputy, and then to both together to deal with more specific issues.

He asked the Public Protector to say how he addressed the recommendations made in the report, in broad terms, and to comment on the process followed and his own views.

Adv Lawrence Mushwana, Public Protector, broadly summarised what had been done since the last meeting. He was of the view that relations between himself and the Deputy Public Protector, Mr Mamiki Shai, had improved because since the two problems, being the definition of the Deputy’s duties and functions and the accusation of sexual harassment, had been addressed, there were no further problems that had arisen. sOther measures applied had assisted in the day-to-day operations, which was appreciated, and the two had gone on to implement each recommendation. Appointment of staff had also greatly enhanced matters in the office.

The Chairperson noted that Adv Mushwana had said in the progress report that there was concern about the role played by National Treasury (NT) and by the Committee of Justice and Constitutional Development. The Committee’s view was that budgetary matters, remuneration terms and conditions of employment would really be a matter for the Ad Hoc Committee dealing with Chapter 9 institutions. He would ask Adv Mushwana about this because it did not affect the Deputy. This was a serious matter and if there were continuing problems this must be put in the report. He asked Adv Mushwana to confirm that the issue that had arisen was about the interference in detail. Treasury had a role to decide how much of the global funding would go to the six Chapter 9 bodies. They also had to decide whether in fact the Public Protector should have regional offices. He asked Adv Mushwana to expand on the comments.

Adv Mushwana responded that Treasury indeed had a role to play, as with expenditure must come the involvement of Treasury. The reasoning behind the comments was that there were certain decisions that were not taken. He gave an example where an attempt was made to upgrade the post of the Chief Executive Officer. Having gone through a number of outlets they were not able to find suitable candidates because of the salary scale. A formal application was made to Treasury to upgrade the post. Treasury had approached the Department of Justice, instead of seeking answers from the Public Protector. The Department of Justice said that the application for funding should not be approved and had given some reasons. The reasons may have been reasonable, but there should be a consultative process.

The Chairperson stated that he had said in the report that that was a decision of Parliament and the post should be filled. He asked whether the post had been filled.

Adv Mushwana agreed that it had been filled, but at a lower rank.

The Chairperson referred to recommendation 8.6, on external communications. There was some problem as to how the communications were done. He noted that there was now a very senior person appointed as Head. He would not only have to communicate with Parliament, but the office of the Public Protector would also have to communicate with other organs of State, with the media and with the public. He asked what practical process had been put in place as part of a comprehensive protocol to regularise external communications for the office of the Public Protector.

Adv Mushwana replied that in the policies it was laid out generally that any staff member of the Office of the Public Protector (OPP) would communicate through the communications officer. When this incident happened the question was how the communication to the media had come about as it did not go through the correct channel. The new communications officer had already drafted a communications strategy, which had been circulated to all members of the OPP for, and was also tabled and debated at the last management meeting.

The Chairperson noted that there was a scheme in place and asked what the date was.

Adv Mushwana replied that it was adopted at the last management meeting last month.

The Chairperson referred to the appointment and transfer of staff. He thanked Adv Mushwana for submitting responses and said it was not necessary for the committee to assess them in any detail. Questions arose as to the process of consultation embarked upon in drawing written procedures; how the procedures were communicated within the office; whether they were put into practice; and what redress and remedies were available if procedures were not fully observed in a particular case.

Adv Mushwana explained that normal procedure for policy documents was to produce a draft. The first draft went to all staff members for initial comments. Those comments would be incorporated into a second draft. The document would then be tabled at the next management meeting and debated amongst management staff. In the drafts there was not yet provision made for the details of matters like penalty clauses. The employment policy was not detailed in some aspects, and he would like to see the response of staff.

The Chairperson noted that documents should be as brief as possible but clear.

The Chairperson referred to paragraph 8.9 on staff retention strategy, and said that staff retention policy was very important. It was not necessary to discuss this issue but asked, for the record, whether this matter had followed the same procedure.

Adv Mushwana responded that it had been established that OPP never had a process of staff remuneration policy. Retention strategy followed on remuneration strategy. OPP was going to a service provider to assist with the formulation of a remuneration strategy, and recommended that there must be a job evaluation to assess each job and attach an appropriate monetary structure. The employment decisions had not been very clear until now.

The Chairperson referred to paragraph 8.11 on conditions of service, Adv Mushwana had indicated that the Justice Commission still played a role in salary increases for the PP and DPP. He asked what had been the increases and what role the Committee played.

Adv Mushwana clarified that the position had been clearer in the case of the DPP. He had known the situation in regard to the PP appointment until the Department of Justice drew it to his attention, and he had no idea as to the basis. When the salary review was raised they were not consulted. His salary was benchmarked. He was not mentioned anywhere in the report and he needed to know where he stood.

The Chairperson replied that he was lined with the judiciary; but agreed he should have been consulted. He asked for some detail about the fact that his salary increase came on notice from the Department of Justice.

Adv Mushwana’s understanding was that the salary was not benchmarked exactly but contained reference to “should not be less than…” and gave a comparison. He wished to clarify this for future PPs. He stressed that potential candidates might not be willing to take on a job that was ranked on the same level as a judge of appeal, but not on the same salary level, and there was no protection for loss of jobs. When he wanted to make a submission or an appeal he didn’t know who to approach

The Chairperson said the Constitution mentioned that the National Assembly prepared an outline of terms and conditions of employment, but it had not done so in twelve years. Mr Kasper Hahndiek, former Secretary, National Assembly, had given him details about the Deputy Public Protector’s salary (flexible), medical aid, bonus, car allowance, all conditional service benefits including annual increments, subsistence and travel expenditure, and relocation as applied to senior management staff. Membership of the Government Employees Pension fund was specifically excluded, as this was a short-term appointment. There was still mention that the Committee on Justice and Constitutional Development decided upon this.

Ms S Camerer (DA) recalled that the Committee was never tasked in the past with looking at the Public Protector.

Mr K van der Merwe explained that Judges of Appeal and judges in general were normally appointed for long periods but the appointment of the Public Protector was a short term contract. Pension could not be included because it was a short-term appointment.

The Chairperson asked Adv Mushwana about whether the tension among staff had subsequently been resolved, how was it resolved, and whether there were any residual difficulties in that regard.

Adv Mushwana responded that tensions were not easily discernible but it had in the past been clear that things were not working properly. Currently relations seemed to be normal and he saw no difficulties affecting the office. He and the DPP had participated in several meetings, including one to appoint the CEO who appeared to be a very strong personality and had taken over the area of administration dealing directly with staff. There was no sign of any hindrance on the Deputy’s functionality. The only issue about tension may be around the Deputy’s own personal staff.

The Chairperson realised tensions were not tangible.

Mr van der Merwe was very happy that Adv Mushwana believed that all was now well and assumed that the complaint of sexual harassment had now fallen away. He was concerned that Adv Mushwana had said that many times he had not been consulted when it came to salaries and other issues, and the Committee should take cognisance of that complaint. The PP should be properly consulted whenever something affecting him was done.

Mr van der Merwe noted that the DPP was appointed on 1 December 2005 but delegated powers were only finalised on 24 April. He asked why it took seventeen months to finalise such an important issue.

Adv Mushwana clarified that there had been a problem in grappling with the nature of the delegations. DPP was already performing all the delegated functions and it was necessary to test whether the situation was practical, and what type of functions could indeed be delegated. The Act referred to ‘delegation of powers’, which meant executive functions. In some instances executive functions were quite ad hoc. In the definition DPP was not in a functional position, but was rather one who exercised oversight over what the CEO had done. This had been a lengthy process.

Ms Camerer was concerned about the communications aspect and emphasised that Adv Mushwana had made communication with the Speaker, and noted that paragraphs 8.7 and 8.6 said he would communicate with the Speaker when needed. Now that a communications manager had been appointed to handle all communication matters, she cautioned that Adv Mushwana personally, and not the communications manager, must communicate with the Speaker.

Adv Mushwana noted that it was unfortunate that comment was contained in the same paragraph. All other communication matters apart from dealings with the Speaker went to the communications manager.

Mr L Joubert (DA) noted that Adv Mushwana had concluded that the OPP was fully operational, more than ever before, and continued to be stronger by the day. He asked whether he was catching up on the backlog in his work.

Adv Mushwana responded that there would always be a backlog but OPP was functioning well. There had been a shortage of staff in IT and other critical positions and OPP had battled to get those positions filled because of the lower salaries. OPP used a service provider to get the best people possible in the market, particularly in the IT department maintaining statistics. The situation was improving but clearly there would be areas still lagging behind.

Mr van der Merwe asked whether the backlog was bigger or smaller than it was six months ago.

Adv Mushwana responded that there was no backlog of very old cases. There might be more cases carried forward but that did not necessarily mean a backlog, only that there many cases less than a year old. OPP was striving to finalise cases much earlier and much quicker.

The Chairperson said that Mr van der Merwe was referring to the backlog in relationships, and asked how that was faring.

Adv Mushwana confirmed that this was being addressed and brought up to speed.

Ms C Johnson (ANC) reflected that one of the main recommendations made was the lines of accountability should be crystal clear and it had been resolved that the entire OPP must see Adv Mushwana as the head of the institution. She asked whether he was accepted and respected on the day-to-day operations as the head of the institution, and whether those lines were clearer than they were when the Committee had last discussed the issue.

Adv Mushwana responded that there had never been a stage where any member of the institution had not been accepted, including the Deputy. There were only specific areas mentioned where there were tensions, which this Committee wisely expected to be resolved, but there had never been a stage where authority was questioned.

The Public Protector left the meeting and the Deputy Public Protector was called in.

Response by Deputy Public Protector
The Chairperson asked, in general terms, whether Adv Shai (Deputy Public Protector) was satisfied with the progress made since September.

Adv Mamiki Shai, DPP, confirmed that she was.

The Chairperson stated that the delegation function was done in April and asked what she had done between September and April.

Adv Shai responded that the delegations were not recorded but that delegations existed. She had been performing all those functions and generating mechanisms to be able to provide a report. All this was enabled by the appointment of a CEO, which meant that where there had formerly been confusion over administrative functions and management functions, these were delegated to the CEO, leaving the DPP to deal with matters of governance. Where the PP wished to maintain some of the administrative functions, these were delegated to the DPP as well.

The Chairperson stated that the response of senior management was very important in terms of her own role and status. He asked whether the delegation of powers and authority had been communicated to staff members and, if so, when, because it was very important that her authority on the delegation should be accepted.

Adv Shai agreed that the problem had been around powers and authority. She understood why certain functions should be done. The problem was when the functions were not accompanied by the necessary power and authority and she had to go via PP to get some help, which had been problematic to her. She had indicated to the Public Protector that it was frustrating that in his absence she could not get through to management or administration to get the work done.

The Chairperson asked whether the delegation had been communicated.

Ms Shai said it had not.

The Chairperson said the original complaint was that of core competencies not delegated to the Deputy, and he asked whether she believed that that was the case.

Adv Shai said that part of the work she did was developmental, which she enjoyed, and believed it was necessary for OPP to do. She gave the example of a fire inspection that would also involve promotion or development of investigative methods and techniques, enabling her to draw the guidelines and terms of reference and to be part of that investigation and part of authenticating the reports that were given.

The Chairperson asked whether this delegation optimally used her knowledge and expertise.

Adv Shai said that it did.

The Chairperson asked whether she thought there would be a review now that a CEO had been appointed, because many of the delegated powers were of an administrative nature that would now be carried out by the CEO.

Adv Shai referred the Chairperson back to her complaint around separating the the mandate and the administrative portion. The Act provided that this had to be done by the chief administrative officer, which was the same function as the CEO. She assumed that PP was not ready to give up part of the administration. The functions that were delegated to the CEO were those that were contained in the Public Finance Management Act (PFMA), which was why there was separation of governance and management functions. In respect of some functions the role had now been re-defined as supervising, which was different from actually performing the function, meaning that the functionaries would be coming from the administration and would be managed by the CEO. She felt the Public Protector wished to retain all the supervisory functions.

The Chairperson asked when the CEO was appointed.

Adv Shai responded that he commenced duties on 1 April.

The Chairperson indicated that if he was appointed on 1 April there might be a need to review the delegations to the DPP, although the Committee would agree that the administrative officer was the CEO. The Act could be changed as it was only a minor amendment. He asked whether the Deputy was satisfied that this delegation would enable her to grow and to develop.

Adv Shai replied that she was. She expanded that the OPP was not previously doing quarterly reviews. She was conducting an institutional quarterly review which also enabled her to grow because she had to be able to guide management around investigations and certain other functions, and also to be able to recommend areas for development and areas of weakness to the PP. This would enable her to do comparative studies. She had already done a lot of work creating guidelines that would be incorporated in the investigative manual being worked on. The Act also provided that the Public Protector should create rules about investigation, which had not yet been done, so that she would be able to do this or monitor that it was done.

The Chairperson noted that Adv Shai had signed the report asking for assistance in relation to delegation, which implied that delegation was not the final word.

Adv Shai believed that if management and administration were totally left to the administration staff, and the governance function remained with PP, it would allow both of them to develop the institution and to develop the application of the mandate. She believed that in time the PP would be able to let go of management and administration so that he was concentrating on governance and with the constitutional mandate.

The Chairperson asked Adv Shai to give an example of the distinction between administration and governance.

Adv Shai responded that, according to her understanding, governance issues would be innovative and creative work that dealt with growth and development. If this were not done the institution would stagnate and not grow. In her opinion governance was planning around development and growing.

The Chairperson believed governance might be more specific. He asked how would she approach complaints made to the Public Protector; how she would investigate complaints; to expand upon the relationships with the provinces, provincial committees and regional committees. That was what he would see as governance. Other development issues were really “pie in the sky”. He asked how DPP would see her role in these real governance issues.

Adv Shai responded that the Act had already indicated the role and functions of the Public Protector. Those fell under governance. Her role would be to assist the Public Protector in those functions and in exercising those powers that were granted by the Act.

The Chairperson said many Acts laid down laws passed for ministers, yet Ministers would not use them, instead delegating to the Director General, the Deputy Minister, or the Chief Director. Although the Public Protector decided everything, he would need assistance. One example was the relationship between Head Office and the provinces. This was surely a governance function.

Adv Shai responded that OPP was presently creating a manual, which allowed coordination of activities between the national office and the provinces. All the links and activities were incorporated in that manual.

The Chairperson asked what her role would be if that manual was determined.

Adv Shai said that the manuals did not yet exist, but her role would be to ensure they were implemented.

Ms Camerer was concerned about what the Chairperson had said and the Deputy’s responses. She pointed out that there was a statement that the Deputy Public Protector’s job on governance would be to assist the CEO in supervising and strategy in full collaboration with the other Chapter 9 Institutions, and the NGOs. This seemed to be a role reversal.

The Chairperson said this question should be addressed to the PP, as it did seem rather inconsistent. He asked whether the Deputy could see that was incompatible with her functions.

Adv Shai agreed, but said that they would probably be able to improve on that.

The Chairperson asked whether Adv Shai was satisfied with the “supervision” afforded to her by the Public Protector.

Adv Shai replied that before this there had been no supervision, although there had been constant consultation. Most of her work was creative work, involving design.

The Chairperson asked what kind of supervision she would like, apart from consultation.

Adv Shai responded that supervision would mean some guidance or direction, some indication of how things should be done.

The Chairperson said the Committee had the impression last year that she did not particularly like that kind of direction. However, she seemed to now have accepted what was stated in the law. She asked her to clarify how often she met with the PP.

Adv Shai replied that they met often and communicated almost on a daily basis. When the Public Protector was in office they would meet regularly on issues of concern.

The Chairpersonasked whether these meetings were minuted?

Adv Shai responded that since September some of the meetings were minuted.

The Chairperson stated that the Public Protector had documented that he and the Deputy had amicable working relations. He asked if this was really possible, in view of the acrimony that had led to the setting up of this Committee.

Adv Shai agreed that initially there was tension but that had subsided because there was a lot of issues in the office that they had to attend to together.

The Chairperson asked whether she was happy with the Public Protector supporting her in her role.

Adv Shai said she was not dealing with staff at all. Until recently she was looking at submissions but was not directly dealing with management except during review meetings.

The Chairperson asked whether managers reported to the DPP

Adv Shai said they reported directly to the PP..

The Chairperson asked whether, with such a large number of delegated functions, none of the managers was obliged to report to the DPP.

Adv Shai replied that that was one of the frustrations that arose. There was an infringement of the delegations. Previously there was frustration because she could not instruct a manager to get what she needed, but had to go to the Public Protector, who would then go to the manager to assist her, but she could not control those kind of resources and that delayed completion of the work.

The Chairperson stated that the law said that she worked under supervision of the Public Protector. She seemed not to have accepted that at some point.

Adv Shai said that was not correct, she did at all times understand that and had no problem with it.

The Chairperson continued that in broad terms DPP was now saying to the Committee and to National Assembly that her relationship with the PP was friendly, amicable and professional. He asked her to expand on that.

Mr A Harding (ID) asked for clarity that this relationship could be friendly despite all the shortcomings such as no manager reporting to her, only to the Public Protector.

Adv Shai confirmed that the relationship was good. She had no problem with the managers reporting to the Public Protector. The only problem was when she was obstructed by a manager not responding, in which case she must ask for permission all the time to take steps.

Miss Johnson asked whether camps still existed.

Adv Shai said they did, but she was not sure what it meant.

Ms Camerer said she was delighted that relationships had improved between DPP and PP and asked Adv Shai to update the committee on what was happening with the counter claims which she understood had been withdrawn, the letter Adv Shai had written to the Gender Commission, and the claim of sexual harassment.

Adv Shai replied that the court cases were still pending.

Ms Camerer referred the Chairperson to paragraph 7.2 of the Committee’s report, which indicated that PP had issued summons for defamation against the DPP, and that she had instructed her attorney to prepare a counter claim. .

The Chairperson said the Public Protector had assured the Committee that he had withdrawn all the court cases. He asked how it was possible still to have a counter claim to a non-existent claim.

Adv Shai said she was not aware of any withdrawal, the last she heard they were making preparation for trial.

The Chairperson asked what the basis of he counter claim was.

Adv Shai replied it was for defamation and damages.

Ms Camerer asked what the rand value was of the claim.

The Chairperson said it was not the Committee’s job to get the details. He was concerned that actions taken against each other were still pending, and affected relationships.

Ms Johnson asked for clarity on the letter the DPP had written to the Commission for Gender Equality. She asked if the Gender Commission were still investigating the matter.

Adv Shai acknowledged that she had written a letter but had not submitted it because she had not needed to. The letter was not about sexual harassment.

The Chairperson asked where did the allegation of sexual harassment fit in.

Adv Shai responded that she did not make the allegation; but only conceded that there had been complaints by two other ladies who had complained. When she was asked about possible sexual harassment, she had indicated that the only contact related to a rubbing of the shoulders.

The Chairperson asked if she was then saying that there was no sexual harassment.

Adv Shai was saying that the words sexual harassment did not come from her.

The Chairperson asked her to clarify that there was first the rumour of sexual harassment, then a comment that the contact with Adv Shai involved rubbing the shoulders. He asked if she was now saying that there was no basis in that.

Adv Shai said she was not saying that. She repeated that when her shoulder-rubbing incident she and the PP dealt with the matter there and then, and it was considered closed. Later he had started reacting to her in a way that she could allude to the earlier incident..

The Chairperson asked, for the record, if Adv Shai could confirm that once they had discussed the matter that was the end of the matter.

Adv Shai confirmed that she regarded it as concluded.

The Chairperson asked if the newspapers were inventing the stories or whether Adv Shai had made some indications to the media.

Ms Camerer was concerned that there was a transcript of a radio broadcast where the DPP clearly indicated that sexually harassing moves had been made by the PP, and what was now put before the Committee condtradicted that transcript.

Adv Shai responded that she did agree that there were claims about sexual harassment that came to her but she did not say the PP had harassed her sexually.

The Chairperson stated that the Committee had already said to National Assembly that this was not substantiated.

Adv Shai said for her the word "unsubstantiated" meant that certain moves had been made but that she could not provide evidence around it. The actions had offended her, but the matter had been settled immediately between the two of them.

The Chairperson wanted to put an end to the matter. The point was newspapers made allegations of sexual harassment; but the Committee had found that this was unsubstantiated. The actions had been regarded by Adv Shai as offensive, but that was as far as it would go. The committee would clarify this with the Public Protector.

Mr van der Merwe said the Committee was given the assurance by the DPP that everything was now in order between her and the PP, and he was hoping that that was the position, but there were to his mind three hurdles. He was still concerned about the existing letter to the Gender Commission, albeit that it was not sent, the allegations of sexual harassment, which now seemed to have fallen away, and the pending High Court cases. He wondered how their working relationship could really be described as amicable and friendly.

Adv Shai insisted that the working relationship was good and normal between professional people.

The Chairperson asked whether it was possible to have a good working relationship when the threat of a defamation action was still hanging over. Such matters by their very nature usually brought out the worst in people.

Adv Shai replied that she took a mature approach. She did not institute the case. She received summons and responded. She put a counter claim because she believed the courts would be able to extract the truth. As far as working relations were concerned, as long as she performed her work and was able to speak to the Public Protector and get the direction needed it was possible to have a working relationship. She did not institute the case and only responded in the way she believed she should.

Mr van der Merwe asked whethe she would be prepared to withdraw the counter claim if the Public Protector was prepared to withdraw his case against her.

Adv Shai responded that there were certain public statements by the Public Protector to staff that were very offensive. The fact of publication of those statements were not true and could not be corrected.

The Chairperson stressed that when he had asked if there was an amicable relationship, she had said there was. Now she was claiming that something said was offensive. To his mind this did not reflect an amicable working relationship. This point would be put to the Public Protector. He asked for clarification on the offensive communication.

Adv Shai responded that the communication was to the effect that the DPP was not wanted in the office, and that there was overspending of money she had no authority to use. This was circulated to such extent that a member of another company brought the communication to her attention, thinking that it had leaked from another source, but i was found that it was actually the Public Protector who had circulated the statement.

The Chairperson asked when that happened.

Adv Shai replied this was in February.

The Chairperson agreed that the word "offensive" was a strong word but that the committee had exhausted this matter.

Ms Camerer asked whether at any time since August, when the Committee made the recommendations, and sighting of the report, up till May, the parties had never sat down and talked about settling their differences and withdrawing these court cases for the sake of the office

Adv Shai said they had spoken about a lot of matters, but not the court cases.

Ms Johnson referred to paragraph 9.2 of the recommendations, which noted that it was undesirable that current legal action remain in the public domain and unresolved. No steps had been taken to remove the court case despite it being a written recommendation from this Committee.

The Chairperson noted that the DPP had presumably seen those recommendations and reminded her that the National Assembly had said it was undesirable that this disagreement be carried out in such a very small and close office.

Adv Shai responded that she had tried in the beginning to resolve the matter. She had drawn up an agenda but no meeting did not take place, other than a very short one in which, despite her best attempts, she could not take control of the meeting.

The Chairperson asked whether there had ever been a meeting between the two to discuss the recommendations, which had been signed by the parties, at any time between September and April.

Adv Shai replied there was a meeting to discuss part of the recommendations but she did not recall the question of the court case being in the report.

The Chairperson asked whether the specific recommendations in the report were ever discussed.

Adv Shai replied that she and the PP had discussed some, such as appointment of a CEO, but the court cases and the allegations were not discussed.

The Chairperson emphasised there should be regular meetings.

Adv Shai responded that she had evidence of having tried to put matters in writing and set up meetings, but these were not responded to.

The Chairperson declared there would be no further questions.

Discussions jointly with Public Protector and Deputy Public Protector
Both the PP and the DPP were present together for this part of the meeting.

The Chairperson stated that the Committee would be going through the recommendations.

The first related to the delegation of powers. This aspect had only been raised with the DPP, when the Chairperson indicated that he would welcome any points of guidance and suggestions from the DPP. The report said the powers and delegations must be clear and must be openly approached. The delegation of powers had not always been clear and the powers included responsibilities of a purely administrative nature, which were really the function of the CEO and office staff. PP was the one who represented executive authority; discerned policy, and issued policy objectives. The question was how the signed delegation powers were communicated within the office and regionally. The delegated powers could in fact be bunched together under four or five headings, but it was important to note the administrative matters. DPP had confirmed that she had attended to such issues after September but that in April a CEO was appointed and would be exercising some of the functions. He requested a response as to the core elements of the report pertaining to governance.

Adv Mushwana responded that as the Chairperson had correctly pointed out, it was difficult to decide what to delegate with executive functions. This was compounded by the fact that within a short space of time OPP had to appoint a CEO, since the PFMA assigned certain functions to the CEO or accounting officer. These included virtually all matters of remuneration and that was why the style of the delegation took the form of overseeing what the administrative staff had done. For instance, when there was a need to sit in a strategic meeting to review compliance with the strategy plan or compile a consolidated report, then it became the duty of the executive to see whether the third targets were being properly followed. Although matters might appear to be on the face of it of a purely administrative nature, it must be remembered that all actions taken in the office remained the responsibility of the executive who was required to answer to whether they were in line with the set objectives. Other models of delegation of executive powers had been looked at.

The Chairperson said that delegation was the prime issue.

He further noted that the DPP was to approve all systemic and own initiative investigations. It was not clear what was covered in this.

There were 26 delegated powers. Five or six of the delegated powers in fact contained detail that took them outside of being delegated powers and into the realm of adminsitrative matters to be dealt with by the CEO. There were some governance matters that should be monitored and evaluated. He did not see that the DPP was to be involved in assessing the work of the provincial officers. That was a matter of governance.

The Chairperson asked the Public Protector to respond to the fact that the Committee felt that of those 26 delegations most were merely administrative functions.

Adv Mushwana wished to address the matter of going to provinces. National Office had a coordination office headed by the Chief Director, coordinating everything in the province at a national level. That coordinator reported to the CEO. All investigations in the provinces were contained in analysis reports and therefore when the CEO sat in on the review of strategic objectives on a quarterly basis he reviewed also the provincial issues, so that his report reflected the whole OPP.

The Chairperson said that the reporting lines were important.

Ms Camerer felt there were inconsistencies. She said that point 18 noted that the DPP should be concerned with governance. The clause said she would assist the CEO in supervising collaboration with other Chapter 9 institutions. That seemed to be entirely inconsistent with the strategy that she should be assisting an administrative officer on governance issues, and she said that surely the CEO should assist her. She asked Adv Mushwana to explain why that was worded in this way. She also noted that point 25 reserved the right to review the powers to the PP.

Adv Mushwana stated that the function contained in point 18 was one recently assigned to the OPP. The EU issued a report and gave specific funding to establish an outreach office which would enable it to reach out to the people in the rural areas. The strategy would need to be guided by the executive. As soon as that function was accomplished both the strategy and its functioning were to be included in a two-year project to be included in the MTEF.

The Chairperson took cognisance of Ms Camerer's remarks and noted that the CEO must assist the DPP and report to the DPP.

Ms Johnson referred to point 20, that the DPP must monitor and evaluate investigations. There would be no way that the Deputy could do that effectively if the managers did not report directly to her. In effect the Public Protector was incapacitating his DPP and making her a glorified administrative assistant.

Adv Mushwana said that the secretariat would, on a day-to-day basis, after preparation of reports, take these through to a think tank for analysis and evaluation. Once recommendations were made at that level, then the secretariat would follow up on them and formulate a document that would deal with that particular monitoring.
It was never intended that the DPP should be seen as a mere functionary.

The Chairperson said that on the report the CEO must report to the Minister or Deputy Minister. In this case the report would be made to the DPP. He suggested that point 14 must be looked at again and either re-written or a definite ruling given on it.

Adv Mushwana maintained that he had not yet responded to point 14 and would like to express his views on it. He noted that managers were asked to investigate systemic investigations or own initiated investigations.

The Chairperson noted that "own initiative" must surely then now include the DPPs. He clarified that the DPP should approve a decision relating to an investigation, but in the end must report on to the PP because only the PP could approve an investigation. Own initiation did not mean "initiated by the DPP" but by the appropriate person in the office. In the end only the PP could approve strategic decisions. Effectively the DPP was acting on instruction of the PP. Each one of those functions could be re-regulated. He suggested, in response to Adv Mushwana's call for assistance, that these matters must be looked at again. Several areas could be combined, perhaps with subdivisions, and then this would be easier to understand.

Mr Harding suggested the committee’s report be a base document in the entire process. There were inconsistencies in the structuring of the OPP. The Committee's recommendations would be able to address the problems.

Ms Camerer asked about the drafting process of this document. Clear directions had been drawn by the committee and published in the ATC in September. The core problem in relation to operational difficulties seemed to be the failure to communicate directly. She asked why this document was only signed on 24 April and what led up to its finalisation. In particular she asked if PP and DPP had met,and had put a draft together.

Adv Mushwana responded that the document was late in the drafting as this was the first time he had had to attend to this function, and was also at the same time involved in the appointment process for a CEO, while also grappling with the functions of the DPP and assessing whether certain matters would work in practice. The DPP had already been performing most of these functions in the meantime. Perhaps the issue was not what she was doing, but the fact that this was not reduced to writing earlier. He had asked her for her views and they had worked together on the draft. This was not intended to be the final binding document.

The Chairperson agreed that it had earlier been noted that certain matters were already in practice.

Mr van der Merwe indicated that the Committee had been asked for advice and should try to advise the Public Protector on how to effect the delegation. It seemed that no other precedents were used for the delegation. He thought that Ministers, when delegating, would be quite specific, and the delegations would be short and to the point, not a list of 26 matters. He thought that definite directions must be given.

The Chairperson agreed that the delegations must relate to the core functions of the office. The assistance the Committee gave was to identify five or six core competencies - so far the Committee had been discussing only initiative investigations.

The Chairperson continued that there had been a long discussion on the concept of an amicable and good working relationship. A large part of the meeting had been spent on drawing out details and the DPP had confirmed that there was such a relationship. However, the details seemed to indicate that there was still conflict. He asked whether the PP and DPP had jointly discussed the recommendations by the Committee.

Adv Mushwana responded that they did not sit down together with this specific aim, but as they worked they observed what was contained in the report. Where the report said the DPP must take instructions from the PP this was not discussed in detail, but was accepted, and the recommendations were adopted and implemented. They were able to function without conflict as to their functions, and were able to focus on their work. They sat together when appointing staff.

The Chairperson pointed out that the Committee was concerned and had recommended that an amicable working relationship was not possible if there were court cases pending. The DPP said she had not reported the matter of sexual harassment to the Gender Commission. However, the Committee learnt that the PP had instituted legal action and DPP had a counter claim. This matter had not been addressed. It was their constitutional right to have access to the courts, but at the same time the Committee did not believe that relationships could be amicable and friendly with a court action still pending. He asked for an explanation.

Adv Mushwana admitted that the court action was still pending. If DPP maintained that she was not responsible for the fact that it was continuing, then this must be left to the court to decide.

The Chairperson noted also that the DPP had a counter claim. The Committee would have to report on this case.

Mr van der Merwe agreed it was the parties' constitutional right to sue and be sued, so the Committee’s questions must not be interpreted as putting pressure on them to withdraw or to settle. The Committee was simply trying to ascertain the facts.

Adv Mushwana responded that it was true that he had instituted action, that the DPP had defended and counter claimed and that the action was still pending.

Ms Camerer asked whether Adv Mushwana had ever initiated discussions with the DPP to settle this matter cordially. He had assured the Committee that they had an amicable relationship but the fact of the pending issue and the nature of the allegations meant that the matter would raise a host of matters if it came to court.

Adv Mushwana commented that this action could be seen as a way of removing the uncertainties and ascertaining the truth. He had studied the report of the Committee but did not see the pending action as a constraint. Concealing the truth would not solve the problem.

The Chairperson noted that Ms Camerer had specifically asked whether the parties had tried to reach settlement.

Mr van der Merwe thought Adv Mushwana had said there may be an opportunity for the parties' lawyers to discuss settlement.

The Chairperson still wanted to know if the two of them personally had ever came together with the intention of trying to settle.

Adv Mushwana replied that they had not talked together, but it was rare that parties in such a situation would move on their own, and it was standard legal procedure not to discuss the matter personally.

The Chairperson noted that it took two people to establish the truth. He asked them if they thought it was possible to settle the truth without formal recourse to the courts.

Adv Shai thought it was possible and noted that she had tried and had written a letter asking that discussions be held so that her viewpoint could be clarified and understood. She was still open to that.

Ms Johnson said that the Committee's report had specifically stated that it had found the court action undesirable. Despite that recommendation the action was continuing. She asked what assurance could they give the Committee that any other recommendations made by the Committee would be taken seriously.

Adv Mushwana asked if that recommendation meant that he had to comply …

The Chairperson interjected that, to be fair on the point Ms Johnson was making, Ms Johnson was talking about recommendations being totally ignored, rather than a considered opinion being given to the matter and a statement that for these reasons it was not desirable to comply.

Adv Mushwana said it never occurred to him that he and the DPP could challenge or say they did not accept what the report recommended. He had not thought that he could tell the National Assembly that he did not agree with Clause X. There were some areas where they did not agree but because the Committee had applied its mind to the matter he would have to accept the recommendation and move forward. He was not ignoring the recommendation on the court case but had no option. The finding of this committee was that the allegation of sexual harassment was not substantiated. If so, then he enquired where this left him if he did not pursue the truth.

The Chairperson maintained it was his view that some kind of clarity must be reached on the allegation.

Ms Camerer had another view. Both parties held very high office, which meant they were worthy of respect by the public. In light of the recommendation of the National Assembly, she asked if Adv Mushwana did he not consider it wise to prevent the airing of this case publicly, and to take every initiative to try to settle their differences outside the court.

Adv Mushwana reiterated that he would not like to view the recommendation of the Committee and the National Assembly as requiring him to relinquish his constitutional rights. Therefore he did not see himself as disobeying this Committee and the National Assembly in taking the matter to court, but operating within his constitutional right. He noted the concerns of the Committee, but only the two parties were involved and clearly could not themselves mediate.

Mr van der Merwe put to Adv Mushwana that the point was not that the Committee was attacking his rights, but was enquiring what he had done in the eight months since September to try to address these concerns. He noted that the DPP said she had written to try to start the process rolling. He asked why Adv Mushwana had not asked his lawyers to discuss a process of facilitation. He should not simply take a passive role.

Adv Mushwana responded that Mr van der Merwe equally should be aware of the legal process. It was particularly difficult for him because he had initiated the action. If the DPP's lawyer were to make an approach to his lawyer he would listen.

The Chairperson stated the matter had been exhausted. People in public life were maligned all the time, and he personally took the view that they should not become involved in litigation over such issues, but that he fully recognised their constitutional rights.

Ms Camerer asked Adv Mushwana whether he did not think that it would be wise here to put the national interest before his own interests, although she was not intending to detract from the allegations that he had been maligned.

Adv Mushwana said he had considered that. The national interest at stake at the time was how the PP operated. The fact that he held public office did not mean that he must not recognised and enforce his own integrity. Where it was in the public interest to forego litigation was one thing, whether to stand back and allow oneself to be accused of sexual harassment was another question and the answer was subjective, not objective.

The Chairperson said that the Committee had questioned the use of the word "amicable" and had wondered if there was an element of dysfunctionality in the OPP because of the dispute. The Committee had been told there was an offensive publication. He asked for information as the Committee had to resolve this issue now, and consider whether there could be an amicable working relationship when such allegations were made.

Adv Mushwana replied that this depended on what was meant by publication.

Adv Shai replied that the publication element was in relation to her response around the defamation. Recently a document was brought to her attention and she was sent by the Public Protector to collect it. It was a 45-page document written by Adv Mushwana himself and circulated, or published, to all staff on the very issues of defamation and other matters.

The Chairperson asked the parties to explain what the document was about.

Adv Mushwana explained that, as he had understood the matter, somebody telephoned Adv Shai to say a document had been leaked from this office. When OPP collected it, it was clear that this was not a new document but one circulated to staff in February last year. It was assumed that one staff member may have shared an internal staff document with her partner, and he had threatened, when the relationship turned sour, that he would use this document as leverage to persuade her to return to him. This whole matter was concerned with the problem of staff leaks outside of the office. HR had dealt with the leak with the staff member responsible for it. He understood the point made that the document contained offensive information and confirmed that a copy of the document was sent to the media in response to the allegations against him.

Ms Camerer noted that this document emanated from April 2006 and was surprised that it was circulated in February 2007.

Adv Shai clarified that the notification of the leak and presentation of the document to her took place in February, but the circulation to staff was in 2006.

Mr van der Merwe said this committee was created by the National Assembly to look at the situation in the OPP. The more the issues were addressed the more he came to the conclusion that the relationship between the two was irreconcilable and they would not resolve their problems. ,

Adv Mushwana maintained Mr van der Merwe was wrong. He and the DPP had regular meetings and these were recorded. The fact that there was a court matter did not necessarily mean that the two were irreconcilable. They should not be judged by this. They were listening to how the Committee felt. It was a matter that the two of them had to deal with systematically. They took seriously the advice of the committee but would continue to engage as far as the court matter was concerned. How they moved forward on that matter remained between the two of them.

The Chairperson asked Adv Shai to respond.

Adv Shai reiterated that they did have an effective working relationship and they consulted regularly. The court case was a personal matter. It took time to heal and also to see how to devise a means to resolve something when still experiencing pain. She was open to resolve the matter and was committed to the recommendations of the Committee.

The Chairperson asked whether she accepted that she acted on the instruction of the Protector.

Mr Harding observed that the whole issue of the court case was only one paragraph in the entire report and in his opinion the committee spent too much time on it. He was concerned that by the Public Protector’s own admission he and the DPP had never taken time to sit down together and point by point go through the report from National Assembly.

The Chairperson noted that the report proposed that there should be some degree of mentorship. The PP argued that the DPP did not require mentoring in the performance of her duties, skills and expertise. He asked for an indication of how the supervision took place and why mentoring was not required.

Adv Mushwana explained that Adv Shai was skilled in all her work. She had been appointed as the fit and proper person for the post and her performance in all respects was good. The difficulties lay in assessing who did what. Her work was done perfectly well. After the roles were clearly spelt out, although he continued to supervise, at least there was an understanding of the roles and functions. There was not enough time for orientation. When he assumed duties in December there were already clashes, but now all was well.

The Chairperson maintained that supervision was ad hoc mentoring. Everyone coming into a job needed mentoring. He believed mentoring would still be a good idea. He asked whether the drafting of the strategic plan had been finalised, who finalised it, and whether it had been submitted to Parliament?

Adv Mushwana replied that strategic plans were submitted and had to be tabled in Parliament. It was created and adopted in May last year. The reviewed strategic plan for 2007/2008 was being printed. OPP allowed managers in their respective provinces to brainstorm and then consolidated all the areas. The previous strategic plan was reviewed at a workshop in December. All managers, including managers of the provinces, worked on the strategic plan.

The Chairperson maintained no person could not write a strategic plan unless they were personally involved.

Ms Camerer queried the appointment of senior staff members.

Adv Mushwana explained that certain appointments were effected through a service provider and this took time. The delay in appointment of the CEO had to do with discussions on salary. The process had been responsible for the delay as the person appointed was already making changes in the office. The delays had been difficult for the people in strategic positions.

Ms Camerer asked what the staff position was at the time.

Adv Mushwana responded that the trend was that many staff had been lost in the year. The bottom line was that of salaries. Many Level 4 were leaving to go to Level 8 in another department. Replacement processes had been made quicker but were still time consuming. The higher levels were very stable, except for finance where the competition in the market place was high. None of this negatively impacted on the functioning of the office.

Ms Camerer asked for an update on the throughput in the office.

The Chairperson said the Committee wanted to be absolutely fair, and asked if both parties were satisfied with the process and were satisfied that they were able to get their views across.

Adv Shai replied that she was pleased to have had the chance to return to the Committee.

Adv Mushwana responded that the exchange had been beneficial to all. Sometimes it was difficult te see matters fully in perspective. The Committee comments were quite helpful and enabled a broader perspective. They would continue to implement and to consider each and every recommendation very seriously as long as it was for the good of the OPP.

The Chairperson asked what they saw as the desired outcome and consequences of this process.

Adv Mushwana said the most desirable aspect had already been accomplished, which was the defining of functions. What remained was for them to refine the functionality of the office of the Public Protector.

Adv Shai would like to see the office held in respect, and that each person be allowed to bring out the best and serve in the way they were supposed to serve.

The Chairperson noted that the Committee would make recommendations to National Assembly. He stressed the importance and respect to be given to the OPP.

The remainder of the meeting was declared closed to the public.