Workshop: Policy & Procedure for Complaints against the Auditor-General & Media Policy

Meeting report

Policy and Procedure for the Handling of Complaints Against the Auditor-General
Mr Wally Van Heerden, Head of Auditing, Office of the Auditor General, stated that the policy was developed as part of the impact study that was performed in relation to the Public Audit Act (PAA). The main purpose of the outcome of the project was to establish a procedure on the handling of complaints about the Office of the Auditor-General (AG) and its staff when conducting an audit. The policy came about because Section 13 of the PAA required the AG to determine procedures for the handling of complaints when performing audits, after consulting the Standing Committee on the Auditor General (SCoAG). The Complaints Policy and Procedure (CPP) was drafted in 2005 and approved by Exco. Exco would implement it as the final CPP once it had consulted with SCoAG.

Mr van Heerden expanded that Section 13(1)(c) of the PAA required the establishment of a complaints policy, limited the application to Section 11 audits and required consultation with SCoAG. Furthermore, due to the South African Quality Control Standards (SAQCS), the AG was required to have a policy in place that provided for the assurances given in terms of the quality of audits and addressing of complaints. 

The nature of the complaints that were dealt with were only complaints directed at the AG in an official or personal capacity, employees of the AG and authorised auditors conducting audits on behalf of the AG. Any other forms of complaints, such as protected disclosures made to the AG, were excluded.

The identified sources of the complaints were the those bodies being audited (the auditees) of the AG, any other public or private body, individual members of the public and AG employees and authorised auditors. Complaints were divided into four categories. The first category looked at complaints that fell outside the scope of the subject matter and the second category focused on complaints pertaining to operational matters during the execution of Section 11 audits. The third dealt with complaints pertaining to the conduct of AG employees or authorised auditors. The fourth category looked at complaints pertaining to the person of the AG.

The Office of the AG identified the points of entry for the Complaints Manager (CM). All complaints were to be addressed to the CM, who was situated in the Governance section. The CM ensured proper execution of the CPP in the AG, received all complaints directed at the AG and developed and maintained the complaints register and tracking system for complaints. The CM also notified the Complaints Committee (CC) of the receipts of complaints and directed complaints to the relevant points of authority. Other functions include referrals to CC, communication of resolutions to complainants and providing monthly reports on the status quo to the CC.

The monthly reports to the CC must contain the number of complaints that were rejected and the reasons for rejection, complaints that were not resolved by the relevant Corporate Executive (CE), complaints that required more time to resolve and all category four complaints.

The CC consisted of three members, two members of Exco and one external, independent member within the industry.

Complaints were to be in writing and recorded in the form of an affidavit or affirmation. The supporting documentation should accompany the complaint and the CM could reject complaints that did not comply with the prescribed format. Anonymous complaints were rejected.

With category one complaints, the CM received the complaint and acknowledged the receipt within five days. Because these complaints dealt with matter outside the scope of the Act, the CM would reject the complaint and send a notification to the CC for ratification. The complainant would be notified of the rejection and the appeal procedure within five days.

With category two complaints, the CE investigated the complaint within twenty days and if the complaint could not be resolved, he/she declares a dispute. The CC may ratify the dispute or resolve the dispute. The complainant was notified of the outcome and appeal process after five days.

Regarding category three complaints, the CM referred these complaints to Legal Services for an opinion. Legal Services then submitted the complaint and opinion to the responsible CE who would decide on further investigation and action. If the person involved was higher than a Business Executive, then the submission is directed to the CC. If a member of the CC was implicated, then the AG replaced him or her with another CE for the purposes of hearing the matter. If an authorised auditor was implicated then the CE referred the matter to that private firm for action. The CE was to report on the status of the case to the CM within twenty days. The CM then submitted it to the CC for ratification or amendment. The complainant was notified of the outcome within five days; however, details of the investigation were not disclosed to the complainant.

In terms of category four complaints, the CM submitted directly to the CC. Within five days of the receipt the CC would submit the complaint to the AG for comment and to the SCoAG. The complainant would be notified of the referral to SCoAG within five days after the complaint was submitted. The AG would prepare a written response to the complainant and a proposed resolution for submission to SCoAG. SCoAG would make the final decision and would notify the CM of the decision. The CM notified the complainant of the outcome within five days after receiving the decision from SCoAG.

The appeal to the AG was only applicable to Categories one, two and three complaints and must be made within thirty days of the notification of the outcome. The notice of the appeal should state whether it was an appeal against the whole or part of the finding, and the grounds for the appeal. The AG would then have thirty days to consider the appeal and make a final decision. The CM would notify the complainant of the outcome.

The AG’s Annual Report would report on complaints and would include information on the number of complaints received, the number resolved, number of complaints pending, the breakdown of complaints, the number of disputes declared, the number of appeals received and the breakdown of successful and unsuccessful appeals.

Discussion
The Chairperson addressed the matter of protected disclosures made to the AG. She asked if Mr Van Heerden could explain what protected disclosures were.

Mr Van Heerden replied that they were disclosures that were protected because they were specific and special audits that were performed with security arrangements, that fell outside of the complaints procedure. Certain information was also protected in terms of legislation.

The Chairperson clarified that Mr Van Heerden was talking about security legislation. She also wanted to clarify that any form of a complaint that was a security matter would be excluded.

Mr Van Heerden stated that matters would be excluded in terms of the procedures and the open forum that the AG followed.

The Chairperson noted that protected disclosure related to the intelligence function of the Government. She asked how a complaint was dealt with in terms of protected disclosure. She wanted to clarify if the reason that such complaints were excluded was because the AG was bound by certain privacy arrangements and confidentiality agreements.

Mr Van Heerden stated that with protection of information, the AG followed a different process in terms of disclosure. They believed that investigating and informing as well as the disclosure process needed to be handled differently; it was not about exclusion.

The Chairperson wanted to know why there was no explanation of what this “different” procedure was.

Mr Van Heerden agreed that the procedure was something that they had to expand on.

Mr T Mahlaba (ANC) stated that procedure should be able to help the AG and Committee in the event of such information coming forward. The “different” procedure for protected disclosures should have been included in the presentation. He wondered if it was possible for the PAA Act to include guidelines on how to resolve complaints.

Mr Van Heerden stated that the Act did not specify the different categories of complaints. The policy would probably be published as a directive of the AG. It would be made public and would be available on the AG’s website for purposes of clarity. Other complaints that fell outside of the subject matter were queries that did not relate to audit functions and were not included in the policy. Classified documentation was also protected because of the information it held and was therefore not included in the policy.

Dr G Woods (NDC) asked if intelligence legislation referred to legislation specified in Section 22 as well.

Mr Van Heerden stated that it did. He said that it was those audits that were performed that were of a confidential nature. The AG was bound by other legislation that protected the information.

The Chairperson stated that the Committee did not want repetition of the uncertainty that happened in the past and that Members needed to know the procedures to handle complaints that were of a confidential nature.    

Adv J Stephens (DA) asked why there was a difference in procedures. He wanted to know if the same procedure was used for complaints of a confidential nature but the difference was that the procedure was not “open court”.

Mr Van Heerden stated that normally complaints of that nature was dealt with by the members of the Complaints Committee who were properly vetted, and the AG together in consultation with the Joint Standing Committee on Intelligence (JSCI), because there was information that related to reports that were tabled to the JSCI.

The Chairperson wanted to know the procedure that the AG recommended for special procedures.

Mr E Trent (DA) asked what the procedure was for internal complaints against the AG.

Mr Van Heerden replied that the normal procedure would be followed if there were complaints by employees.

The Chairperson asked what the working relationship was between the AG and the JSCI.

Mr Van Heerden stated that they would expand on the policies and procedures, specifically making reference to complaints regarding the audits performed in terms of Section 22 of the Act.

The Chairperson asked about consultations with the JSCI. She asked if the AG would not be able to independently initiate an investigation into a special complaint and would need the permission of the JSCI.

Mr Van Heerden stated that the AG had not defined the relationship with the JSCI clearly. He said that any matter that was reported on in the AG’s report to Parliament was reported to the JSCI. In terms of normal legislation, the JSCI needed to be informed of any matter that impacted on the outcome of the audit or the report that was tabled. The procedure was not about obtaining permission from the JSCI, it was about informing them of the complaint.

The Chairperson stated that she was concerned about the protection of the AG’s independence. There was the potential for a Parliamentary committee to interfere with the process once they were made aware that a complaint was lodged. She asked if it was necessary for the JSCI to be informed, as the results of the investigation could impact on the actual audit information.

Adv Frankie Jenkins, Legal Adviser to Parliament, stated that the protection of information was part of the legislative requirements. He agreed with the office of the AG; if there was a complaint about information that was already in a report that was sent to the JSCI then the JSCI needed to be consulted. The JSCI could not prevent the AG from fulfilling its constitutional obligations, as it only had an oversight function. The JSCI could recommend that the AG not pursue a certain complaint but the AG would decide finally whether to proceed or not. It was Mr Jenkins’s recommendation that the AG then approach the SCoAG without disclosing specific information.

Mr Stephens stated that the Committee was currently dealing with Section 13(1)(c) of the PAA, which said that the AG must establish the procedures for the handling of complaints when performing Section 11 audits. He understood that the audits of security establishments were also Section 11 audits, therefore the procedure had to cover those audits as well. There could not be a Section 13(1)(c) procedure and different procedure for something else. He also understood that the AG had to have due regard for audits of a special nature, but felt that it was not correct to exclude complaints relating to security matters from Section 13(1)(c) procedures.

Mr Van Heerden agreed but said that the procedure did not exclude security accounts specifically.

The Chairperson was concerned that the JSCI played a role that other committees did not play in the investigation of complaints. She was trying to find the rationale for consulting the JSCI.

Mr Van Heerden answered that according to the legislation concerning the JSCI, the AG was required to submit the reports to them. The JSCI had a specific role that was set out and clarified in the relevant legislation, so if there were complaints about the audit then they would be informed.

The Chairperson was still concerned about political interference.

Mr Van Heerden stated that the office of the AG would follow up on the matter.

The Chairperson asked for an idea of a complaint that fell outside the scope of the subject matter.

Mr Van Heerden replied that it was anything that did not relate to an audit. These complaints were just grouped as category one complaints for record purposes.   

Dr Woods asked what the time frames were in which complaints were actually dealt with. He also asked if details of the complaints that were dealt with and were not dealt with could be included in the AG’s annual report.

Mr Van Heerden stated that time frames were clearly defined in the policies and that the details could be included in the annual report.

The Chairperson asked for more information on category two complaints.

Mr Van Heerden answered that these related to the processes followed in the audit. A person may object to the audit outcome or the process used.

The Chairperson noted that category three complaints could also impact on the processes used.

Mr Trent agreed, saying that it was a grey area, as both category two and three could be affected if there was a complaint about the AG’s behaviour.

The Chairperson noted that until a complaint was investigated it was difficult to establish whether it was a category two or three complaint. She wondered if there were too many levels of complaints and if it was possible to collapse a few categories so that the AG was not exposed to administrative review.

Mr Van Heerden stated that the office of the AG would look at the policy and clarify the categories. He suggested that another category be included to deal with complaints that could be considered either category two or three complaints.

Mr Terence Nombembe, Auditor-General, stated that the nature of the investigation would result in natural crossovers, but if the complainant specified the nature of the complaint then it would be easier to categorise.

The Chairperson agreed, saying that different categories required different procedural resolutions. She was still worried that the AG faced the possibility of an administrative review due to its process of solving complaints. She suggested that the AG classify the different components of the complaints.

The Chairperson asked for more information on why details of investigations were not disclosed to complainants.

Mr Van Heerden stated that complainants were not exposed to the court hearing and details on how the complaint was resolved. They were only given the outcome of the resolution. The complainant’s line manager or trade union representative would be present at the court hearing.

The Chairperson wanted to know how it was decided whether to continue or suspend someone’s employment if a complaint was lodged against him or her.

Mr Van Heerden said that it depended on the type of complaint. If the complaint was serious then the individual was suspended or removed from the audit and premises at the recommendation of the CC while the investigation took place. They followed the normal procedure for suspension for category three complaints. 

Adv Jenkins stated that it was better to provide in the disciplinary rule for when the individual could or could not be suspended, as the rule was very flexible.

Mr Nombembe agreed that the rule needed to be specific, particularly in regard to whether the person could or could not be on the premises or be involved in an audit while the investigation was taking place. There was also a need to be specific about the course of action that would be taken.

Mr van Heerden stated that if an individual’s presence were going to have negative impacts on the audit, then he/she would be removed from the audit. The seriousness of the complaint would determine if the person would be withdrawn from the audit or the premises of the AG’s office.

The Chairperson commented that a procedure was needed to establish the role players involved in handling the withdrawal of employees of the AG. Category three complaints would need a withdrawal guideline to consider when an individual should be suspended.

Mr Stephens addressed category four complaints. He stated that a process of ratification was mentioned for procedures in other categories and that the CC established if there was substantial reason for the complaint. It seemed to him that complaints against the AG should only be referred to SCoAG after ratification of the complaint. There was no procedure for ratification under category four. He said that a filter for complaints was needed.

The Chairperson stated that in terms of the Constitution, the AG could be removed from office for misconduct, incompetence and incapacity. These cases would be referred to Parliament. There could not be a process in the AG’s office that established the seriousness of the complaint if it related to the misconduct, incapacity and incompetence of the AG.

Adv Jenkins stated that Members needed to ask what the relevance was of having the process within the AG’s office for category four complaints. Even if the complaint were resolved, the complainant would still be able to approach the President or the National Assembly (NA). Such a complaint should therefore be given to the Office of the Speaker.

The Chairperson stated that she was happy that the complaint would go to the Speaker first because then it would not become public immediately.

The Chairperson then addressed misconduct that did not relate to audits. She said that she would have to be persuaded that the misconduct related to the audit, as there could be serious misconduct that did not relate to auditing work. She used the example of drunken driving. In her opinion, drunken driving affected an individual’s dignity and was not particularly related to auditing work. She wondered how a complaint about misconduct such as this would affect the process.

Mr Jenkins stated that the complaint would go to the Office of the Speaker and the Speaker could approach the Committee for advice. The AG’s conduct outside of the office could affect his dignity but it depended on how serious the matter was. However, the AG was still an employee of Parliament and they would look at it on a case-by-case basis.

The Chairperson commented that misconduct was very broadly defined. The Committee would have to look at whether the misconduct impacted on the AG’s dignity and effectiveness in order to see if his behaviour warranted a suspension. She clarified that all complaints about the AG’s misconduct would go to the Office of the Speaker and any complaints with substance would be referred to the SCoAG. Also, the Constitution did not say that the AG had to be removed, there had to be a formal resolution for his removal from office. If a Committee found that there was misconduct, then they were not obliged to remove the individual.

Mr Trent wondered what recourse there would be if a complaint was submitted to the Speaker but was found to be frivolous.

Adv Jenkins stated that there could be a substantive motion, which could be tabled in the House and there were certain provisions in the Constitution that allowed an affected person to take the matter to court.

The Chairperson commented that all complaints should be referred to the AG for comment and then given to the Speaker, as the AG needed to be aware of complaints.

Adv Jenkins agreed, saying that complaints should be received and given to the AG for comment first. The complaint with the AG’s comments would then be passed to the Office of the Speaker.

The Chairperson addressed the format of complaints. She wondered if having documents accompany complaints would prejudice the complainant.

Adv Jenkins stated that the right to defend oneself meant that the person who was the subject of the complaint needed access to the information, and therefore supporting documents were needed. It was not unfair and did not prejudice the case if the information was given to the CM. The manager would decide on the basis of the information whether to proceed or not.

The Chairperson asked how the rejection of anonymous complaints related to whistle blowing. She said that a procedure was needed to deal with whistle blowing.

Mr Van Heerden said that anonymous complaints were not investigated because there was no affidavit.

Mr Nombembe stated that there was a separate process to deal with whistle blowing that formed part of protected disclosure.

The Chairperson wanted to know how complaints related to labour relations. Mr Van Heerden informed her that the complaints policy was aligned to labour relations.

The Chairperson was also worried that there would be CC hearings and then the process of disciplinary hearings would have to be repeated.

Mr Van Heerden stated that CMs received complaints and assessed if they were of any substance. The cases were then sent to the CE’s. The CC played a facilitating role but the disciplinary hearing had its own role, they were two separate processes. The CC merely established if the audit was adversely affected.

The Auditor-General Media Policy: Briefing
Mr Van Heerden stated that the primary objective of the policy was to build and protect the integrity and reputation of the AG by establishing the necessary guidelines to be followed by authorised and designated spokespersons. The aim was to help avoid the dissemination of incorrect information.

The AG’s approach to the media was to be open, honest and factual. The AG also wanted to respond quickly and appropriately to all media enquiries to limit potential damage caused by adverse or incorrect media coverage about the AG.

The Business Executives (BE) for stakeholder management and Senior Managers (SM) for Media Liaison were the only authorised employees to facilitate liaison between the media and the AG. The AG, as the head of the institution, would comment or deal with all media issues relating to critical, strategic and policy matters. The Deputy Auditor-General (DAG), as head of operations, would comment on and deal with media issues relating to the organisation’s operational matters.

The policy was communicated to all employees of the AG through internal communication channels. The Business Unit heads were to ensure that their staff were aware of and observed the provisions of the policy.

A SCoAG member could be requested to act as a spokesperson to represent an image of stability and continuity, focusing media attention on the overall mission and long-term goal of the organisation rather than on current problems. SCoAG was also to consider, comment on and approve or amend Section 5.5 of the policy, which dealt with its role in times of special crises at the AG.

Discussion
The Chairperson noted that there was bias in the media policy documentation towards the organisation and the AG’s office. She asked if the Media Policy’s major orientation was dealing with issues relating to the organisation of the AG.

Mr Van Heerden stated that they did not comment on the findings before the findings were considered through the normal processes of Parliament. They could clarify audit findings, but the AG would normally do this. The report that was tabled provided further clarification on all the audit findings. He agreed that the policy mainly covered the operations of the office and that the AG was responsible for speaking about audit findings.

The Chairperson commented that it could seem as if Parliament was being marginalised when the AG’s office engaged in press conferences before the problems were exposed in Parliament. This illustrated that they needed to give more thought to media policy with regard to audit findings.

Mr Trent noted that the AG’s office could not just reply with “no comment” if the media enquired about certain matters. He suggested that the office of the AG try to be more proactive rather than reactive.

The Chairperson agreed and thought that it would be a healthy compromise if the AG’s office approached legislatures and briefed them on what was happening. She thought that the AG’s office could take the opportunity to discuss and strategically plan how they wanted to deal with the media and the release of audit findings.

Mr Nombembe stated that the AG was trying to prevent the situation where they commented on findings that they should not have commented on. The policy had made this quite clear. The AG reports were now included in the department’s Annual Reports. The AG shied away from commenting on reports because it was the relevant Minister’s duty to do this. The office of the AG wanted to avoid the situation where the media was the first to comment on audit reports. The AG also did not want to comment on reports before the departments had the opportunity to comment.

The Chairperson noted that this was a very restrained approach. She also stated that often media put its own spin on certain incidences. This meant that the AG’s office had to think about how to phrase certain things in the public domain. They also needed to look at media management.

Mr Nombembe agreed. He said that it was a question of how they timed the media releases and how they packaged the information that was discussed without contravening the transparency principles.

The Chairperson stated that the Committee would appreciate a closer relationship with the media. She also wanted a closer relationship with the AG’s liaison office so that Members could have better access to information. The relationship between the AG and media was very important. Media was the only way that the public had access to and understanding of what was happening in Parliament. They needed to cultivate a good, balanced relationship with the media.

The meeting was adjourned.