Legal Aid Board and Public Protector Report 2007/08

Meeting report

Legal Aid Board Annual Report 2006/7
Judge Dunstan Mlambo, Chairperson, Legal Aid Board, indicated that the LAB had been created as an independent body outside of Government in terms of the Legal Aid Act. Although funded by Government, the LAB provided a service that could be viewed as being in conflict with other services, such as the prosecuting arm of Government. It was important that the LAB was independent and was known to be such, so that accused persons could have full trust in the LAB and know that it was not in any way influenced by the prosecution or the State.

Judge Mlambo listed the challenges and risks facing the Board. The first related to uncertainties around policy change. Every year the LAB had lodged the Legal Aid Guide with the Minister for approval, as duly required, but such approval was still awaited.  Many of the initiatives LAB had undertaken were to address delays in the justice system, since these were a risk and detracted from the public’s confidence in the justice system. Although the system of OSDs (Occupation Specific Dispensations) for the legal profession was supposed to have been signed off and become effective from 1 July  2007, this had still not happened, and although this had not yet disrupted the functioning of the courts, it might be a precursor of worse things to come.

Judge Mlambo then turned to the quality of the services offered. He had worked hard since 2001 to reverse the perception that having a LAB lawyer represent you was a guarantee of a conviction. The quality of service being offered was high.

The effect of Judicare lawyers on the LAB brand, however, was problematic, since Judges had sometimes complained that they had to stop trials because Judicare lawyers had not been fully prepared. The LAB was currently addressing the problem. Although the Judicare lawyers worked under the auspices of LAB they were independent and their client files were confidential, with the result that the problem of quality management was not within the control of the LAB.

The Mental Health Care Act and the Prevention of Illegal Evictions (PIE) Act obliged LAB to provide legal aid to specified people. It was difficult to quantify the volume of work coming from these agencies. The case loads of practitioners were a problem. The number of practitioners per court in the  District Court were at 0.91 and in the  Regional Court at 1.17, a figure still below the LAB’s targets due to resource constraints. Ideally the figure should be at least 1.5 or even 2 practitioners per court, and the fact that this was not at this level was a “continuing risk”. LAB was unable to meet civil and criminal service capacity requirements. In criminal matters this was because of the high volumes. Only 10% of matters handled by the LAB were civil, due to a lack of funds.

Judge Mlambo set out the Board’s three main strategies as:

-The delivery of quality legal services and promoting the protection and defence of our Constitutional rights;
-Developing and maintaining the human capital to support the delivery of quality legal services
-To develop and maintain the institutional capacity to support the delivery of quality legal services.

The Board was looking at the drafting of new governing legislation to ensure compliance with the Constitution, and work had already started on this. Hopefully the Board would have the 2007/08 version of the Guide approved and not have to report lack of approval as a continuing problem.

The particular challenges identified for the 2007/08 year to a large extent reflected what he had already said. The practitioner per court ratio featured prominently. If a particular practitioner was in court for five days a week, this would make it extremely difficult for him to visit prisons. He would also be unable to participate fully in continuing legal and legal aid education or refresher courses. Case flow management at Court was a challenge, resulting in backlogs. These were indicative of the overall slow functioning of the criminal justice system. Although LAB was trying to track matters, to reduce case backlogs, this was not fully in the LAB’s control. Other important problems alluded to included the remuneration of legal practitioners, which was not in line with the justice cluster, the extension of the OSD, and approval of the Guide. 

Ms Vidhu Vedalankar, CEO, LAB, emphasised that the bulk of her presentation dealt with service delivery and the quality of legal services offered by the LAB. There was an ongoing need to improve access to legal services and access to justice. The LAB needed to ensure that it provided a service that was indeed required by its clients, and respond to the concerns of internal and external stakeholders. LAB worked as an integral part of the justice system. It sought to nurture an awareness of citizens’ rights, mainly by means of outreach programmes.

Key achievements for the year were outlined. The Board had handled 396 068 new matters  in the 2007/08 financial year, an increase of 10% on the previous year. It had therefore reduced the number of unrepresented clients in the system. Observation at courts of the services being offered had been introduced, at national and provincial level. The LAB also participated in the criminal justice review programme. The case backlog team was working well with funds allocated by the Department of Justice to the LAB. The Legal Services Charter had been presented to the Minister of Justice .

The LAB now had a total of 59 Justice Centres in the country and 8 new satellite offices and 1 new Justice Centre had opened in the financial year 2007/08. Most of the work was done by the LAB’s own lawyers, and recruitment was at 93%. The number of matters and finalised matters were summarised (see attached presentation) and the backlog figures were also set out. The new and finalised matters targets had been exceeded. All criminal courts were covered. The number of children assisted was 42 087 while representation of children in civil matters totalled 5 821.

On the financial side, Ms Vedalankar said that for the second year in a row there had been no qualifications or matters of emphasis by the Auditor General. 99 % of the budget had been spent and there was zero over-expenditure. The LAB had a clear capital asset replacement programme.  and it had budgeted for this, she said.

Discussion
The Chairperson noted that the LAB was now in its sixth year of having achieved unqualified audit reports.

Mr A Manyosi (ANC, Eastern Cape) congratulated the LAB on its unqualified audit report.
He then alluded to the perception that the LAB still provided a lower standard of legal services, quality of its attorneys and time devoted to matters. There was still a belief that the LAB lawyers would tell a client to plead guilty and assure him that they would then be able to argue for a lower sentence, and it was believed that they did so to lighten their load.

Judge Mlambo agreed with Mr Manyosi that there was such a perception, which was largely historical, but pointed out that since 2001 he and his B board had worked very hard to reduce that perception. Part of the problem was that accused had been socialised by their society into believing that if they paid nothing, they would receive something of lower quality.

Judge Mlambo said the LAB had monitored postponement records. Often, when asked if representation was needed, an accused would say that he would appoint his own lawyer, and would only finally accept legal aid on the fourth or fifth appearance. He agreed that he had too had heard accusations of poor quality by Justice Centre lawyers. He had challenged it, asking whether this pointed to problems in the industry in general, or just at legal aid. By its nature, the LAB took work away from private practitioners, with the result that the latter used every opportunity to criticise LAB lawyers. However, many magistrates and judges maintained that they would far rather have a Justice Centre lawyer appearing in their court than a Judicare one. He added that in some community forums, LAB lawyers were accused of encouraging people to commit crime by defending them. This was simply not true. He said that the allegations that LAB lawyers encouraged an accused person to plead guilty were rife in 2001. However, it was necessary to compare the number of guilty verdicts against the total number of charges by the NPA, and the number of withdrawals, to get the true picture. He could not rule out that there might be isolated cases where lawyers, when faced with a poor case and knowing the attitudes of the presiding magistrates, might encourage a client to plead guilty to a lesser charge in the hope of attracting a lower sentence.

Having said that, Judge Mlambo said that the LAB monitored the number of guilty pleas put forward by each practitioner and was able to follow up if it appeared that there were a disproportionate number of guilty pleas against guilty verdicts, and it would then take Matter activity reports enabled tracking of the progress of each matter at any given point in time, and early warning systems were in place.

Judge Mlambo said that LAB lawyers were viewed as inexperienced or young or inferior. This was a worldwide phenomenon. Many lawyers were seen only as opting to do public defence work if they could not break into another field. South Africa could be an example of what a mature government could do if it properly funded a Legal Aid system. He pointed out that Justice Centre lawyers, although they had fewer years of experience, might nonetheless be better equipped because of what LAB exposed them to. The LAB continued to attack the perceptions, and there had been an improvement in the reputation.

Judge Mlambo confirmed that LAB was independent because it was required to be so by the Legal Aid Act. LAB had defended those accused in the Boeremag case, despite the fact that they were alleged to be plotting to overthrow the government, because they had to assist everyone, and even the Minister of Justice should not and could not instruct LAB not to represent these accused. However, because of its funding, it would have to report to government.

Mr Manyosi asked whether, when the LAB submitted its budget to the Department of Justice, it would normally received enough funds to recruit and retain qualified attorneys.

Judge Mlambo said that the LAB had baseline funding in terms of the Medium Term Expenditure Framework (MTEF). The budgets were worked out according to the current and expected work. It did make additional requests outside the MTEF allocations. In the past year, the LAB had received R35 million in additional funding. Once additional allocations were made, they were then factored into the next baseline.

Mr Manyosi said the Judicare lawyers  appeared to spend less time on LAB cases. He asked when LAB would engage them and how it could avoid having to employ them.

Judge Mlambo admitted that Judicare lawyers were a problem. When the Justice Centre model had been adopted in 1999, it was decided not to restrict to a single model, to allow the LAB to brief experienced lawyers in complex or specialised fields if necessary. There were some specific areas where they would be briefed and there would be an outcry if they were cast aside, not least because some of them were previously disadvantaged lawyers who were struggling to make their way in the profession. They were therefore used to bolster the capacity of the Board, but he called this “an unwieldy horse to ride”.  LAB had issued a directive that in all appeals, no Judicare lawyer should be allowed to concede the merits.

Mr Manyosi asked about the safety of staff employed by the LAB, and if they were vulnerable to attack by their clients, or those who were in prison.

Professor Yousuf Vawda, Non-executive Board Member, LAB, replied that LAB staff were definitely not  threatened by clients because they had lost cases.

Mr Manyosi asked whether LAB lawyers received less remuneration than prosecutors.

Ms F Nyanda (ANC, Mpumalanga) asked for clarification on the non-payment of Judicare accounts.

Judge Mlambo admitted that this had been a problem in the past and had been listed as a risk. About seven years ago Parliament had had to warn the LAB of complaints by private practitioners that their accounts took a long time to settle. The LAB had since sorted out the problem, and such accounts were now paid within 30 days. The payment systems were still regarded as a risk to be monitored.

Ms Nyanda asked how many disabled people were employed by the LAB.

Mr Jerry Makokoane, COO, LAB replied that the target percentage for the employment of disabled persons was about 2 % and that the LAB was still at about 0.5 %. In its recruitment drive and processes, the LAB expressed a clear bias towards people with a disability. If it had disabled staff, it would ensure that they were further trained, to ensure that when permanent positions arose the disabled candidates could be prioritised.
 
Mr J Le Roux (DA, Eastern Cape) asked the LAB to elaborate on whether reasons were given for the  delay in getting the Legal Aid guide approved by the Minister of Justice

Mr D Worth (DA, Free State) noted that the Legal Aid Guide (LAG) had been submitted but not ratified for the past five years.

Judge Mlambo said that he had had discussions with the Minister but was merely told that the matter was receiving attention. This had been an ongoing source of complaint by the LAB. He suggested that perhaps the Department of Justice could give further information.

 Mr Worth noted that the University of the Free State had not given the LAB any new matters for 2007/08, and asked why that was so.

Ms Thuli Mhlungu, Board member, LAB, replied that the reason was that the LAB looked for co-operation partners who could help it extend its reach in areas in which it lacked expertise. More recently the LAB had started having dedicated Children’s Rights Units. During 2007/08, The University of Free State was running a family law project, in which the LAB lawyers had already been trained and there was no need for a cooperation agreement in this area in this year. University of the Free State was welcome to approach the LAB to assist in extension of reach into rural and under-represented areas.

Mr Worth asked about case backlogs, noting that these had been reduced by 16.2 % at the 27 Backlog Courts. He wanted to know whether the 27 courts were special backlog courts.

Mr Brian Nair, National Operations Executive, LAB, replied that a special project had been coordinated by the Department of Justice (DOJ) under the leadership of the Deputy Minister and this was permanently creating extra capacity. The 27 extra courts were such extra capacity. All backlogs in all regional courts had been investigated and those with the highest backlogs were given additional capacity both of court rooms and personnel. LAB was given extra funds with which to recruit new practitioners. The long overdue or “stuck” trials were moved to these courts, so that they could be disposed of on a continuous roll basis. The project had been successful in terms of reducing backlogs, showing a backlog reduction of 6.9 % nationally and of16.2 % at the backlog courts. Backlogs were caused by a variety of issues, including delayed investigations, witnesses failing to arrive at court on time or at all, and necessary adjournments. He reiterated that the backlogs were monitored, and those matters exceeding a certain turnaround time (usually 12 months) would be examined and ways found to address the problems.

Mr Worth asked how many lawyers the LAB lost to other branches such as prosecutors or the magistracy.

Mr Nair replied that there was still a disparity in between the capacity of the National Prosecuting Authority (NPA) and the LAB. NPA had a ratio of practitioners-to-court of about 2, while LAB had a ratio of about 1 in Regional Courts and about 0.5 in District Courts. This impacted on LAB’s ability to handle the volume of cases given to it. He suggested that a ratio of around 1.5 in all courts would be more appropriate.

Mr Nair noted that a question had been posed about internal risk arising from the increasing sophistication of NPA and SAPS that resulted in more convictions. He said that the LAB lawyers were becoming more skilled in their defences to provide a quality service to clients.

Ms Vedalankar added that the disparity between the number of prosecutors and LAB lawyers per court could be addressed if additional funds were procured. Despite representation for more funding, the allocations were never sufficient. NPA could afford to brief senior counsel and specialists whereas LAB could not. As NPA used more sophisticated resources, so must the LAB match this, and this would require greater financial resources.

Mr Nair admitted there were some problems around staff budgets and the ability to recruit and retain practitioners. Submissions had been made about disparities in salary, which did lead to practitioners moving from LAB to NPA. This would be solved once OSDs were implemented,  because equal work would attract equal salaries, lowering the incentive to move, although people may still move to follow their interest. Loss of staff to the NPA was most evident at the level of candidate attorneys, who would be contracted for one or two years to LAB during their articles, but would move to permanent positions at the NPA when offered more pay. The implementation of OSDs would address this.

Mr N Mack (ANC Western Cape) commented that the number of cases in 2007/08,.in which charges had been withdrawn seemed very high at 130 975. He asked what percentage of these involved domestic violence, and what wastage of resource was occasioned by withdrawal.

Mr Nair admitted that the withdrawal rate was high, but noted that prosecutors would tend to withdraw doubtful cases if a defence attorney was appointed. The fact of withdrawal did not mean that the LAB lawyer did nothing. LAB monitored at what stage charges were withdrawn and found that many had been withdrawn just before the trial date, meaning that substantial preparation would have been done. He said that there were about 4 000 domestic violence cases in total, and the number of withdrawals would be a percentage of that figure.

Mr Mack noted that he had never seen outreach campaign at his Prince Albert constituency office, and asked why there was no visible interaction with municipalities, South African Local Government Association (SALGA) or Councillors.

Ms Vedalankar said that the LAB’s ability to reach 46 million South Africans would always be difficult because of the size of the country and limited. Education was not the LAB’s primary mandate but in the course of its business, it tried to ensure that it was able to reach out to communities. When publishing the Annual Report it would also publish a newspaper supplement to advise of achievements, services offered and how to contact the LAB. It would continue to build on that and to link to community-based forums and organisations. It would also work with communities on topical issues. .
 
Mr Mack asked about Judicare lawyers in the rural areas.

Mr Mack asked how those showing little commitment had been appointed. He knew of clients whose request for a specific Judicare lawyer was refused, and instead they were assigned a non-committed lawyer, who would advise the client to plead guilty. He pointed out that 32% of the 402 085 matters had a guilty plea, which seemed high.

Professor Vawda said again that the perception that LAB lawyers were below par was a major concern for the LAB Board, and one it was addressing in an aggressive way. The LAB was in essence a law firm which employed about 1 500 lawyers, and that it was in the nature of things that there were  bound to be “slip-ups”, but these regrettably were exposed to much negative publicity. Thefts committed by a candidate attorney in one of the Justice Centres had received media coverage out of all proportion, having an impact larger than the theft itself.
 
Mr Mack also asked about the LAB’s high dependence on technology and what implication the power outages had, particularly since the indications were that these would continue. He asked what delays were caused to information sharing, especially in rural areas.

Ms Vedalankar said that power outages had disrupted courts and would definitely have an impact on case backlogs. LAB was looking at alternative power supplies, but this was very expensive; alternative power supplies for every office could cost at least R30 million and this was not budgeted for. However, it was looking at structuring activities so that even during outages staff would work on other matters. It was critical for Eskom to provide load shedding schedules in advance. 

Mr Mack asked about LAB’s use of the services of so-called Co-operation partners such as law students and NGOs, asking how LAB monitored the quality of their work. He asked here too for greater focus on rural areas.

Professor Vawda replied that these partners were an independent service provider and therefore the LAB did not have direct oversight over them, but all their principals, including the university law clinics, had their own monitoring systems. All law clinics were required to be accredited by the Law Society, which could only happen if they had a sufficient number of qualified attorneys to supervise the work of law students. Even final year law students had no right of appearance in court.

There were substantial training programmes in place, including court readiness programmes for candidate attorneys, who would be required to have some experience before they were permitted to address a court. No candidate attorney was required to appear in court in his or her first six months. Candidate attorneys were put through admission readiness programmes, to equip them adequately for their admission examination, and these were reviewed regularly.
 
Mr Mack also wanted to know what the impact of escalating fuel costs would be on the LAB’s budget.

 Mr Nair said that budgets for this financial year would have been factored on lower costs and that the LAB would reassess these costs during the year. It might prove necessary to reassign funds.

Mr A Moseki (ANC, North West) asked the LAB to expand on case loads and practitioner per court figures. He asked what was being done to address the ratio. He commented that the increasing sophistication of NPA and SAPS was not apparently being measured.

Mr Moseki asked if there was litigation against the LAB and the impact on the budget.

Ms Vedalankar said there was not serious litigation against the Board. All organisations had litigation against them, and there had been more in the past, especially around fee disputes. There were now agreements in place to prescribe a procedure to try to resolve such disputes. LAB was not affected by the corporate type of litigation, but would have to manage its business and the risks.

Mr Moseki noted that there were, contrary to the presentation, only two justice centres in the North West. North West was 74 % rural and he asked how the LAB reconciled the locations of centres in Mafikeng and Rustenburg with assisting the disadvantaged.

Judge Mlambo pointed out that there were five offices in the North West province, in Vryburg, Mafikeng, Rustenburg, Potchefstroom and Klerksdorp. The capital expenditure for establishing a Justice Centre was about R5 million.

Judge Mlambo replied that the comments of Mr Mack and Mr Moseki were most valuable as LAB was constantly challenging the justice centres to tell them of problems and needs. Sometimes the LAB would agree with judicare-based firms in the area to take on the work.

Mr Makokoane responded to the questions on the budget, saying that the LAB had a plan and a national footprint, responding to how LAB wanted to grow the business. Sustainability was a critical factor. Although the LAB had budget allocations through the MTEF cycle from the National Treasury, case backlog funding was only paid during the financial year, so that, for instance, LAB had not yet received case backlog funds for this financial year. LAB believed that in order to do proper planning it needed an upfront allocation.


Mr Nair expanded on the footprint. LAB’s delivery of legal aid services was done through four regional offices. North West was shared between two regions. In the new financial year the LAB would increase its regional capacity to five regional offices and North West and the Free State had now combined to provide a service. Rural access was linked to the provision of legal aid in civil matters. LAB gave services at every criminal court. The national footprint was looking to identify areas where it lacked coverage, particularly in rural areas. The 8 new satellite offices opened in the last year were  all in rural areas. A further 6 were proposed for this year. LAB also would link with Advice Offices, many of which did wonderful work in the community, and would provide back-up legal services to these Advice Offices. In regard to community outreach programmes, LAB linked with constituency offices and ward councillors, although this was a process, and it might take between 3 and 5 years to cover all constituencies.

Mr Nair turned to the questions around judicare. It was an important vehicle for the delivery of legal services. Where a conflict of interests arose – for instance two litigants both wanting legal aid - the LAB might have to get someone outside the Justice Centre to act for one client.
The LAB did not allow for a practitioner of choice but instead used a system of accreditation, which required practitioners to show that they had rendered a minimum number of services and that they were in good standing with the Law Society. The process to allocate the judicare lawyers took into account black economic empowerment (BEE) and was transparent and fair.
The system worked well and LAB received progress reports so as to monitor the quality of work.

Ms Vedalankar reiterated that the LAB had turned the organisation around, was a high-performance organisation and kept a high target. It was confident that it would be able to perform at that level. It had a high level of accountability. The more it could increase access and quality the better would be value for money. Strong governance and good spending would also ensure this. More importantly, given the funding allocated, LAB could always handle more matters at its Justice Centres than it could by giving all matters to Judicare, so legal aid was the more cost effective model. 

The Chairperson thanked the presenters for their thorough and well-researched presentation. They had been very open, even about shortcomings. He commented that it would have been useful to see a table of spending trends per month.

The Chairperson referred to the recent xenophobic attacks in Gauteng and said he would ask the Public Protector what it could do. He asked if an aggrieved foreigner or illegal immigrant could seek assistance from the LAB. The court ratio was a serious challenge.

Judge Mlambo said that refugees were entitled to Legal Aid, as recently confirmed in a Gauteng judgment, for either criminal or civil matters.

Judge Mlambo concluded by saying that although there had been some serious tensions in the Board in the past, it was now integrated and committed to thorough interrogation of matters. He praised the CEO and her team.
 
Mr Moseki noted that there had been significant progress. The public expected quality legal services, and he encouraged the Board to continue its good work. He assured the Board of the Committee’s support.

Office of the Public Protector (OPP): Report on activities
The Chairperson thanked the Office for diligently responding to the “catalogue of questions” posed to it by members during the budget hearing last year.

The Chairperson mentioned a case of a colleague who had allegedly been suspended by her Department because she had refused to make an unauthorised payment, and was then charged with insubordination and required to appear before a Disciplinary Committee. He asked whether the Office of the Public Protector (OPP) would be able to intervene in such a case. He noted that there were still employees in some government departments who were being victimised because they refused to carry out incorrect instructions. He asked that the OPP comment on this case.|

Adv Lawrence Mushwana, Public Protector (PP), said the OPP had finally managed to appoint a CEO, who had started working for the OPP on 1 February 2007, but that unfortunately matters had not gone well, and after a disciplinary hearing the CEO had been suspended, although there was an appeal pending. Despite this, the office was running as smoothly as possible.

Adv Mushwana said he wanted to voice the OPP’s dissatisfaction over the wave of anti-foreigner attacks that was sweeping through the country. It was a crisis that affected everyone and all South Africans should be joining hands in an effort to find workable solutions. He was pleased to hear that a task team had been appointed to look into the matter and had already started working. The Chapter 9 Institutions, including his own Office, had called an urgent meeting, joined by members of civil society and the church groups, Lawyers for Human Rights and others, and had themselves formed a task team, which had declared that the present situation was a national crisis, which called for the intervention by everyone.

The OPP was also collaborating with the SA Human Rights Commission (SAHRC) in investigating Eskom and load shedding, and would be reporting on its findings during a media briefing in Cape Town.

Mr Mushwana then touched on the issue raised by the Chairperson. An employee being suspended for refusing to make an unauthorised payment could only be regarded as an abuse of office power, and this “fell squarely” within  the OPP’s  jurisdiction and should be referred to it. He mentioned the case of a municipal employee in the Free State, who had been summarily suspended by a municipal manager for being a whistleblower. That person had come to the OPP for assistance, who had intervened and managed to have the suspension reversed.

Ms Shirley Thoke, Acting CEO, OPP, noted that the legal framework of the OPP was provided by the Constitution, The Public Protector Act of 1994, and the Executive Members Ethics Act of 1998. Its mandate was to strengthen constitutional democracy, by conducting investigations into alleged improper conduct by organs of state and to recommend or take corrective action. It had four strategic objectives for 2007/08. These were to conduct effective, efficient, informed, timeous and high quality  investigations, and to report on them (the core function) and then to undertake executive management, outreach programmes and give corporate support services. All were aimed at improved service delivery to stakeholders.

Ms Thoke outlined the highlights of the OPP’s achievements during the past financial year: It had conducted 34 own-initiative systemic investigations, and finalised 11. 40 reports were finalised and issued to different organs of state. All the recommendations in those reports were fully accepted and were being implemented. She then tabled a statistical overview of the cases. These included cases brought forward to the 2007/08 financial year. OPP realised that its case statistics were not accurate, and had commissioned a file audit, whose results would be published in the Annual Report. In the 2007/08 year, OPP received 13 196 complaints and finalised 11 280 cases. 6 446 cases would be carried forward from March 2008.

Ms Thoke said that in this year OPP had also received 2 887 complaints, over which it had no jurisdiction, and referred 744 of these to other institutions. She compared this to the numbers for the previous years and gave detailed statistics.

One of the OPP’s strategic objectives was to finalise all cases within a year. There were currently 58 matters older that this. 62 % of matters were finalised within 3 months, 16 % within 4 to 6 months, 12 % within 7 to 12 months, and 7 % within 13 to 24 months, while 3 % were older. More complaints were lodged by males than females.

Ms Thoke said that the highest number of substantiated claims were against the Department of Home Affairs, followed by the National Treasury and then the Department of Health and the Department of Welfare and Social Services.

Ms Thoke noted that the objectives of the Executive Management programme were to provide strategic direction, to improve the internal and external communication and also to inculcate a common vision and an improved profile of the OPP, with a view to improving service delivery to all stakeholders. OPP had finalised the Think Tank process manual, adopted a communication strategy and distributed two newsletters.

The Outreach Programme aimed to empower the people through knowledge, by increasing the visibility of the services of the OPP and achieving better cooperation. OPP had conducted 320 informal sessions throughout the country and 343 joint collaborative workshops with other institutions. The  Mobile Office of the Public Protector was launched in Kwazulu Natal, Limpopo and the Eastern Cape. It conducted 297 clinics and managed to reach out to 23 307 communities. It now had a presence in all provinces and planned to establish three more regional offices.
 
The OPP’s fourth programme, Corporate Support Services, aimed to achieve and sustain a support service that was compliant with legislation, to further improve service delivery. The OPP had achieved an unqualified audit report for the third consecutive year. A Security Management Strategy and Risk Management Strategy had been adopted. There was compliance with the current legislation. There were areas in which the employment equity could be improved and mechanisms were in place to rectify this. Only 1% of staff were disabled, and 15% of women were in senior management positions, below target.

Mr Zane Docrat, Chief Financial Officer, OPP, tabled the budget, giving an overview of previous years, and highlighting the increases in line with the opening of offices. In 2006/07 the budget allocation was R67.7 million, rising to R78.7 million (16%) in 2007/08 and to R100.8 million (6%) in the following year. The larger rises were due to growth phases. The 6% increases were merely an inflationary adjustment. The OPP spent about 57% of the allocation on investigations and reporting, because this was its core function. 

Ms Thoke listed some of the challenges facing the OPP. Because the OPP fell under the authority of the Department of Justice, this created the unfortunate perception that it was not independent, as provided in the Act. Although the PP should determine staff salaries in terms of the Act, he had to enter into protracted negotiations with the Minister of Finance, which lowered staff morale. The high turnover of investigators resulted from the fact that other departments of Government paid more than the OPP’s entry level for investigators. Submissions had been made to Parliament calling for intervention. IT problems had arisen because of insufficient support from State Information Technology Agency (SITA), which was the only implementation agency available to the OPP. This delayed service delivery and finalisation of cases.

Mr Charles Motau, IT Manager, OPP, reported that an analysis of the infrastructure had found the case management system to be very antiquated and OPP decided to invest in new technology. SITA was asked to get a case management system running, but many problems had intervened, with a meeting finally being set up with the service provider. It was hoped that the system would be functional by October.

Adv Mushwana reiterated that the OPP intended to establish three new regional offices., and had last year launched three mobile offices through a pilot project funded by the European Union. It was intended to roll out to other provinces in the current year. Over the next few years OPP hoped to have reached every single individual in the country. A continuing challenge was that very few people knew about the existence and functions of the OPP and other Chapter 9 institutions.

Discussion
Mr Mack thanked the OPP for its presentation, which he said was “short, exact, frank and honest in all respects”. He asked how the OPP identified cases it took up of its own initiative. His concern related to the fact that media “hype” was not always reliable.

Adv Mushwana answered that matters such as the Eskom matter had come to the attention of the OPP via the newspapers and other media, and through its own experiences of load-shedding, but there were many others which the Office picked up of its own accord. It would only conduct a formal investigation when it appeared that there was concrete evidence of maladministration or abuse of power.

Mr Mack referred to the fact that many complaints concerned fraudulent pension fund claims, and asked for clarity on these.

Adv Mushwana replied that the OPP was hoping to release the findings of a “systemic”, own-initiative investigation into pension funds especially relating to government employees who had retired and still had to wait for years to be paid their pensions. Many of the matters involved clumsy and inefficient bureaucracies, and were causing trauma and suffering to families. Some municipalities had created their own pension funds and persuaded employees to migrate to these. OPP had not yet managed to make a breakthrough on the problem of both the Government and municipal pension funds.

Mr Mack asked whether the OPP had energy-saving strategies.

Mr Docrat replied that the OPP did have such a strategy but that it was subject to “severe budget restraints”. It was trying to keep travel costs to a minimum. It had tightened up its internal controls and had implemented provincial budgeting strategies to make managers and supervisors responsible for such cost-saving measures.

Mr Mack asked whether the OPP had an infrastructure replacement strategy in place.

Mr Docrat replied that the OPP had always had an infrastructure replacement strategy in place, but with the lack of a proper IT head, it had perhaps overestimated the useful life of some of its assets. This had now been rectified and the IT infrastructure replaced. OPP would use depreciation and provision for replacement of assets.

Mr Moseki praised the OPP for its excellent financial management. He asked how far the OPP was with the 23 remaining own-investigation cases, and how long would it take to finalise them. He asked how effective its monitoring was over implementation of recommendation, and what it would do if the recommendations were not implemented by a department.

Adv Mushwana replied that, fortunately, almost 99.9 % of the OPP’s recommendations were accepted and implemented. In one case in the Free State the recommendations were not implemented, and this was because a draft report was sent. OPP would interact with departments; it was not adopting an adversarial approach but attempted to assist. However it would not allow incorrect actions in a department.

Ms Thoke reiterated that most of the remedial recommendations made by the OPP were accepted and the OPP always submitted reports on how it had followed up on its recommendations on a quarterly basis.

Mr Moseki said it seemed that National Head Offices had received the most complaints, and asked why were so many complaints directed to the Head Office when there were Provincial Offices.

Ms Thoke explained that in 2007/08, the National OPP had received 2 700 complaints, while all the Provincial Offices put together had received 10 485.

Mr Moseki asked about the use of mobile clinics and whether the rural communities appreciated the work the OPP was doing.

Adv Mushwana said that the mobile clinics became “visiting points” for local communities. OPP would always publicise the date of a visit, and statistics were kept on the use of the clinics by locals. If they were under-utilised, the OPP moved them elsewhere, where the need might be greater. The clinics were established on the basis of presidential nodes but this was still subject to budgetary constraints. On launch, 11 000 people had used the mobile clinics. The current anti-foreigner uprisings, allegedly related to the issue of service delivery, demonstrated the urgency of such a programme.

Mr Moseki said he knew of a case in Citrusdal where the community had complained about the maladministration of a community trust. The community complained that the Government was withholding the OPP report.

Mr Moseki asked whether Mabopane was still part of North West or whether it had become part of Gauteng. Many communities in such  areas were  struggling because of the lack of OPP offices.

Adv Mushwana replied that it was for purely logistical reasons that the office was placed under the authority of Gauteng but it still serviced the same area and community in North West. If any communities had problems as a result of offices being rezoned, they should communicate with the OPP.

Mr Moseki asked what did the OPP do about cases that were older than one year and how long did it take to finalise such cases.

Adv Mushwana replied that there were many reasons why some cases were older than two years. Some matters were very complicated and information was not yet available. Delays were often long in the Department of Justice, and could occur because a case record had gone missing. OPP did not ignore cases of more than two years old. It had shortened its target for finalisation from one year to less than six months. He could provide a written projection as to the expected dates of finalisation.

Mr Worth commented on the Free State statistics, noting that no complaints were outstanding, but said that the figure for completion of cases there in 2007/8 was more than the number received. He asked if that was due to the matters carried over from the previous year. In 90% of cases the recommendations had been implemented, and one case had been reported to the Legislature.

Mr Worth queried that the number of finalised complaints for Departments of Home Affairs and Health were so low, since the OPP had said that they were the subject of the most substantiated complaints. He was surprised to see also that so few complaints were substantiated against municipalities.

Adv Mushwana said it was clear that Department of Home Affairs did have many problems, some of them very serious, and mainly to do with the issuing of identity documents. This had been compounded by the influx of refugees to South Africa and the inability of the Department to deal with them adequately, but these matters were not necessarily fraud-related. OPP hoped, through to reach more people and to make them realise that instead of letting out their frustrations for poor service delivery by looting and committing acts of public violence, there were other avenues open to them.

Mr Worth wanted to know who was poaching OPP’s staff, and from where the OPP was recruiting new staff.

Adv Mushwana said that in some cases, OPP staff did move “horizontally” while many others took up more lucrative positions at institutions such as the National Prosecuting Authority (NPA), whose salaries were much higher, and where careers could be advanced. The OPP could not compete with the NPA’s salaries. That was why it had asked the Department of Justice to develop a strategy for the equal payment of legally qualified staff, by way of the Occupation Specific Dispensation (OSD). OPP staff furthermore did not belong to a bargaining council.

Mr Docrat added that benchmarking surveys had shown that there were disparities between the OPP and market rates for investigators. 

Mr Le Roux) referred to the fact that the OPP’s determination of staff salaries was dependent on protracted negotiations with the Minister of Finance, and asked what kind of intervention was being requested by the Portfolio Committee.

Adv Mushwana said that the OSD (Occupational Specific Dispensation) was one such intervention. Another was the review set up to consider the OPP’s request to sit on the budgeting council to have a direct say in its requests and to motivate the budget. The review board had recommended that there be a unit in Parliament to oversee the functioning of all Chapter 9 institutions.

Mr Manyosi referred to the fact that with increased visibility, people would refer all cases to the OPP, which was inconvenient to both OPP and the public. Although the outreach programme sought to address the problem, he wondered whether there were partnerships at grassroots level to address this problem, and whether the constituency offices were being used to spread the work about the OPP’s correct function and services, to distinguish it, in the minds of the public, from other institutions. He noted that the strategy did include forming partnerships with reputable community-based organisations.

Adv Mamiki Shai, Deputy Public Protector, said that when the OPP conducted outreach programmes, it tried to make sure that their educational content was relevant to the Public Protector and its services. The OPP separated out non jurisdictional cases as soon as possible and had a database of relevant institutions to whom to send these complaints. IT would work with other Chapter 9 institutions to educate people on their rights.

Mr Manyosi referred to the issue of salary competitiveness, asking with which organs of state the OPP compared itself and whether the salaries of its lawyers compared favourably with the Office of State Attorney.

Mr Docrat reiterated that the NPA paid equivalent staff much more than did the OPP but that it was hoped that the OSD would remedy this imbalance. Surveys to benchmark salaries had found discrepancies in both the other public sector institutions and the private sector.

Mr Manyosi asked if the budgetary challenges resulted from a lack of appreciation of the critical tasks the OPP had to accomplish, or a misunderstanding of what the OPP did and the benefits of its services to members of the public. He regarded the service of the OPP as indispensable and believed the salaries should be commensurate with their importance.

Mr Docrat  said that budgetary challenges were not the result of Treasury underestimating the importance of the OPP’s functions and services. The budget had doubled between 2001 and 2006. The mechanisms used to make representations for budget increases would improve. However, budgetary constraints had forced the OPP to think out of the box and to become more efficient because there was no money to waste.

The Chairperson again commended the OPP for its presentation. He enquired about the perception that the OPP was Government-friendly.

Adv Mushwana replied that the OPP would probably have to live with this perception forever. It might be lessened in future, when those in high office were no longer identified by their political activism during the struggle days. The perceptions were not substantiated by the facts. The OPP had been challenged only once, in a review matter in the High Court last year which had not yet been finalised. Mail and Guardian had alleged that the OPP was pro-ANC. This case would give the OPP a good opportunity both to “interrogate its mandate” and to argue the matter of its independence in court.

The Chairperson said he had also heard other departments complain about SITA.

The Chairperson referred to a case of theft by a government employee, and asked whether there were other instances of employees directly looting the State and, if so, how many were there and what was the cost.

Adv Mushwana said the OPP did not have a lot of “direct looting” cases but recently many files had been opened around the tendering systems, where wrong handling was becoming more prevalent. He did not yet know the merits of these complaints but that if the allegations proved to be substantiated, that would be worrying.

The Chairperson pointed out that some other departments had been shown to be culprits of “fiscal dumping,” and hoped the OPP was not doing this, but was spending as much as it could.

Mr Docrat replied that last year the OPP had had claims for R14 million for which there was no funding at the beginning of the year. However, OPP ensured that there would be savings and that would be surplus funding in place. Where approval for projects was granted in the first quarter, implementation happened only in the second and third quarter, and payments would occur at the end of the year, with the result that expenditure increased in the last quarter. The unqualified audit had attested to the fact it was not guilty of fiscal dumping. The OPP was reluctant to request rollovers except where there were valid reasons. A rollover was requested in 2006/07, and Treasury had approved the request. 

The Chairperson asked the OPP to give some idea of its monthly spending trend.

Mr Docrat said he would send monthly and quarterly statements to him in writing.

The Chairperson asked the OPP to speak about its vacancies in its office, in the view of its large staff turnover.

Ms Thoke said that while the benchmark vacancy rate was between 5 % and 10 %, the OPP’s vacancy rate was currently 19.5 %. OPP had an approved structure but, owing to budgetary constraints, had filled only the critical posts each year. The time within which vacancies should be filled could be improved. She would submit precise details in due course.

The Chairperson asked about the marketing and communications strategy.

Ms Kgalalelo Masibi, Senior Manager, Communications, OPP, replied that this year the OPP or its representatives had been speaking on community radio as part of the strategy to reach rural communities. Interviews were also arranged through the media, in which much emphasis was placed on the mandate of the OPP.

The Chairperson asked whether she did not think that the public should have been told about the receipt of an unqualified audit report before this meeting.

Ms Masibi replied that it was not too late to do so.

Adv Mushwana thanked the Committee for the lively debate, the relevant and probing questions, and noted that OPP valued constructive criticism and guidance.
 
The meeting was adjourned.