Public Protector Office: report
REPORT FROM THE OFFICE OF THE PUBLIC PROTECTOR: THE JUSTICE PORTFOLIO COMMITTEE: 18 MARCH 1998
1. It is my privilege to give you an overview of the successes of my office since its inception, and also to inform you of the most pressing difficulties experienced by the office. Since my office does not have the benefit of a functional Parliamentary committee at present, I appreciate the window to Parliament which this opportunity creates, even though the Justice Portfolio Committee is not in an overseeing position with regard to my office.
2. Brief of the Office and my interpretation thereof
2.1 The core function of the Office of Public Protector (as determined by section 181 and 182 of the Constitution of the Republic of South Africa 108 of 1996, and the Public Protector Act 23 of 1994) is to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action. Also under my jurisdiction is any institution in which the State has the majority or controlling shareholding.
2.2 The brief given to me by the Constitution makes it clear that the Office is an institution that would in international terms be described as an Ombudsman. In accordance with generally internationally accepted principles on ombudsmanship. I therefore regard my position as one of a buffer between individual and state administration, the face to the faceless bureaucracy. In this regard I am the objective adjudicator of facts placed before me. It will only be where I find for the complainant that I will protect him or her by appropriate remedial action. If I find for the institution complained against I shall indeed "protect" that institution by bringing out a finding in its favour behind which it can shield from a difficult or unreasonable complainant.
2.3 I regard the mission of my office not only to receive complaints and to deal with them, but also to improve efficiency, transparency and accountability in public administration and to improve fairness in the provision of governmental services.
2.4 The main objectives are:
· to facilitate access to my office by the community;
· to seek equitable remedies for those affected by defective administration;
· to identify systemic issues of defective administration and seek solutions: and
· to provide advice to government on matters relating to administrative actions and practices.
3. Utilisation of the office by the public
3.1. The office has proven to be much in demand by the public. This is reflected in the continual rise in the number of complaints received each month.
3.2 Whereas I received an average of 105 complaints per month for the first three months when I had just come into Office in 1995, this has increased to an average of 284 incoming complaints per month for 1998 so far.
3.3 I attach as Annexure A a graph for the period 1993 - 1997 giving more particulars in this regard (during January to September 1995 was before I took up office).
3.4 If I take into consideration the 544 cases I took over from my predecessor, I have received over 7 900 complaints since I came into office on 1 October 1993, and 3545 have been finalised so far.
3.5 My office also has to deal with approximately 2000 incoming telephone calls per month, during which referrals are made and even problems solved.
4. Successful completion of investigations
4.1 I receive excellent co-operation from institutions under my jurisdiction. It has not been necessary for me to make use of my former powers of subpoena and search and seizure to coerce institutions into co-operating. In the rare instances where I did. make use of the power to subpoena, it was for strategic and practical reasons only.
4.2 A possible exception is the Eastern Cape Province, which I deal with in paragraph 10.1 below.
4.3 I also get excellent responses to the remedial recommendations I make to institutions. The strength of the office of course lies in the motivation behind the recommendations emanating from it, and I am proud to say that our public administration is mostly sophisticated enough to assimilate sound reasoning and to implement recommendations based on it.
4 .4 Although a complainant might tend to disagree in a case where I found against him or her, that case is of course also successfully dealt with. I like to believe that even in cases referred to me in which I have no jurisdiction, such cases are successfully dealt with where my office explains to the complainant where he or she can go or what procedures to follow to obtain assistance.
5. Relationship with other state institutions supporting constitutional democracy in terms of the Constitution
5.1 Because of the fact that the Office of Public Protector is created in chapter 9 of the Constitution together with ocher bodies, there is a mistaken tendency to categorise my Office under the heading of "commissions" together with, for example, the Human Rights Commission, and the Commission for gender Equality.
5.2 The differences between the Office of Public Protector and the commissions are quite evident from the Constitution:
· Whereas the Public Protector is the objective adjudicator of facts placed before him, the commissioners are the subjective promoters of Human Rights.
· Whereas the Public Protector has to look into all complaints referred to him, it is quite clear from the Constitution that the commissions only have to investigate matters where such investigations would lead to the promotion of Human Rights, and can choose which projects to take on.
· Whereas the Public Protector has as his task the promotion of efficiency in state administration, no other commission has this task.
5.3 It is more correct to place the Public Protector in the same category as the Auditor-General, but of course with a different brief.
5.4 On the face of it there seems to be an area of overlap between the commissions and my Office, due to the fact that many corn plaints against state administration involve the Infringement of a Human Right. However, if it concerns that individual complainant only, it is a matter for me to investigate. It is only where the infringement is indicative of a larger picture of Human Rights abuses that I should refer the matter to the commissions.
5.5 A lack of understanding of this fundamental difference between the bodies often leads to the misconception that the bodies are duplicating each other. Even in cases where there is a grey area in which both the commissions and I will be able to investigate, we are all careful not to duplicate work which the other body is already doing.
5.6 Consultative meetings take place from time to time involving my office, the Human Rights Commission, as well as the Commission on Gender Equality, to discuss liaison between these bodies. This is part of an ongoing discussion between the bodies to facilitate the proper utilisation of resources.
5.7 It could also be mentioned that I have a good working relationship with the Public Service Commission as well as with the Department of Public Service and Administration. The latter, for example, is working in co-operation with my office on the issue of transforming public service delivery (the Batho-Pele project). I am also liaising with Provincial Governments in this regard.
5.8 I have co-operated with the Auditor-General on a number of cases of which the Sarafina II investigation is probably the most well-known. I am also approached from time to time by departments for inputs and comments or their activities.
6. International relations
6.1 The Office is a member of the International Ombudsman Institute which has as its aim to promote ombudsmanship world-wide.
6.3 We were honoured by the International Ombudsman Institute by the request to host workshop for the African region with the aim to train ombudsman office investigators. The theme was "Strengthening the Ombudsman Office in Africa"
6.3 The workshop took place in Pretoria during August of 1996. It was widely acclaimed as a huge success. Resource persons included the Ombudsmen of New Zealand. Ontario (Canada), the Netherlands and Zambia.
6.4 No doubt because of the success of the latter event. South Africa has been placed second after Hong Kong to host the fourth yearly world-wide ombudsman conference in 2000. The chances are quite good that Hong Kong could fall our and that the event could indeed take place in South Africa. No finality has been reached as yet. This would be a very prestigious occasion not only for my office but for the Republic of South Africa.
6.5 The office has also been honoured by neighbouring countries approaching us to send delegates to learn from us. In March this year for example, two investigator's from the Lesotho Ombudsman Office will pay the office a working visit.
7. Present establishment
7.1 The present establishment of my office looks as follows:
Assistant to the Public Protector
12 x Senior Legal Administration officers
1 x Chief Administration Officer (vacant)
1 x Public Relations Officer (vacant)
1 x Registration Clerk
3 x Typists
2 x Administrative Clerk
1 x Messenger
3 x Secretaries
7.2 We are in the process of inviting applications for the two vacant positions.
7.3 Remuneration packages for these posts are the equivalent of those paid by the Civil Service for similar posts.
7.4 All posts were created after due consultation with the Minister of Finance and the Public Service Commission/ Department and the service benefits determined by me was duly tabled in Parliament, in terms of section 3(10) and 3(11) of the Public Protector Act, 23 of 1994.
8. Present budget
8.l The budget for the present financial year (1997/98 amounts to R5 827 000 which is made up as follows:
Staff expenditure - R4 138 000
Administrative expenditure - R834 000
Supplies and printing - R298 000
Equipment - R305 000
Professional and special services - R177 000
Sundry expenditure - R75 000
Total - R5 827 000
8.2 An amount of R7 438 000 has been allocated to the office for the next financial year (1998/99).
9. Request for additional funding for expansion of the office.
9.1 I have requested the Treasury Committee for additional funding to the amount of R 22 386 000 for the 1998/99 financial year. This amount includes the expansion of the office with another 7 Senior Legal Administrative Officers, 3 Chief Investigators, as well as supporting staff for them. The bulk of the amount, however, is needed for the establishment of regional offices.
9.2 The motivation for regional offices is as follows:
9.2.1 The Interim constitution made provision for the establishment of Provincial Public Protectors. Seven of the nine Provincial Legislatures already had legislation or bills in place, when it became known that the new Constitution does not provide for Provincial Public Protectors. The national office of the Public Protector at that stage did not contemplate regional offices, anticipating the institution of provincial offices in terms of Provincial Legislation. The fact that provincial offices were not proceeded with resulted in the national office having to deal with all complaints, and this in turn resulted in a severe backlog in the office. The national office has already been criticised for not being able to deal with matters timeously. In view of the fact that the new Constitution does not provide for Provincial Public Protector offices, it is up to the Public Protector to see to an effective system in the provinces. I have therefore decided to establish a regional office in each of the provincial capitals.
9.2.2 Given the vast geographical area that needs to be covered, such regional offices would bring the institution closer to the people as it should be. Various difficulties are encountered at present in matters where complainants are from other centres. Regional offices would make the institution of the Public Protector more accessible to the ordinary citizen, especially in cases where complainants are unable to express themselves properly in correspondence or over the telephone, The right to approach the Public Protector can be an ineffectual one in such cases if the complainant is unable to visit an office of the Public Protector in his or her proximity. The benefits or personal contact and evaluation of complainants are also lost. It should be pointed out that section 182(3) of the Constitution of the Republic of South Africa 108 of 1996 provides that the Public Protector must be accessible to all. Further, one has to bear in mind that over and above accessibility a huge section of the South African population which is most disadvantaged and disempowered lives in the rural areas. Without regional offices, this office would not be able to assist or to make any impact on that section or the population.
9.2.3 Provincial administrations are centred in the provincial capitals. Too much time and money would be lost if investigators from the Public Protector's office in Pretoria have to travel to such centres to do investigations there or where it is expected of officials in these centres to travel to Pretoria for investigations. Regional offices in the provinces would also have the benefit of being closer to local government institutions in that province.
9.2.4 Investigations are often simplified by an investigator doing inspections in loco. Due to constraints of distance, time and money, my office presently sends investigators out only in very few cases. The result is that the benefit of inspections in loco are not utilised to its full potential - regional offices will solve this problem.
9.2.5 Much pressure has been put on my office to establish regional offices, by NonGovernmental Organisations, State Institutions, and the public itself. There has even been calls for satellite offices in smaller towns.
9.2.6 The office of Public Protector has proved to be extremely popular with the public. Whenever the office receives publicity, it is translated into a rise in the rate of incoming complaints. At present the office has had to put its communications strategy on hold, because it has been inundated with complaints. Even so, the incoming complaints keep on rising. Regional offices are needed to deal with the increase in the workload.
9.2.7 Every citizen needs to know of his or her rights to approach the Public Protector in appropriate circumstances. The aim of the communication strategy of the Public Protector is to inform the public of their rights, but in such a way as not to generate unnecessary or misplaced complaints. Once the communication strategy is proceeded with, it is expected that there will be an even greater increase in the rate at which complaints are rising. The inevitable publicity surrounding the establishment of regional offices will also have the same effect. In this regard the experience with the present Ombudsman office of the North West Province substantiates this expectation. That office is still operating under the transitional arrangements with a view to being taken over as a regional office by the Public Protector. It deals with approximately 3 300 cases per year, notwithstanding that the office of the Public Protector also received complaints from the North West Province.
9.2.8 Statistics kept by the North West Ombudsman office have shown that on average 0.179 % of the population in an area complained to the Public Protector per year. It this is transposed to the whole of the population of South Africa (about 39.7 million people) potentially 71 063 complaints may be expected per year. If one subtracts the 3 200 complaints lodged with the national office per year, that still leaves the enormous potential number of over 67 000 complaints regional offices could receive per year (5 580 per month).
9.2.9 Annexure B sums up the extensions envisaged in a diagram. As can be seen from Annexure B. provision has been made for a moderate start. It is imperative however that regional offices are not left with so little staff that they are turned into post offices for the national office. They should be able to take care of investigations on regional level and finalise as many cases as possible. Otherwise the whole exercise of establishing such offices will be futile. The structure envisaged for the regional offices, would be able to deal with a maximum of 540 complaints per month. This is so far removed from the potential 5 580 complaints per month mentioned above, that there is no risk or the staff in the regional offices being under-utilised.
9.3 The difficulties surrounding my request for additional funding is dealt with in paragraph 10.3 below.
10. Problems encountered by the Office
10.1 The state of public administration in the Eastern Cape Province is of some concern to me. It is the one area in which I have difficulty to get co-operation. It seems not so much to be a reluctance to co-operate, but rather an inability to get the administrative act together. I recently visited the Premier and senior officials in that Province in an effort to assist in getting the administration of the Province on track.
10.2 Due to the popularity of the Office and the concomitant influx of complaints, it was inevitable that a backlog would result with the finalisation of complaints. When I took up office in 1995, the establishment was geared to deal with 40 incoming complaints per month, with only two investigators on the staff. Further posts were created, but with the perpetual increase in complaints received, the posts created always proved to be insufficient by the time appointments are made. The process of creating further posts on the establishment will be an ongoing one until such time as the incoming complaints reach saturation level and level our. The difficulty in the interim is that it is a lengthy process to establish a proven necessity for further posts, to consult in terms of the relevant legislation and to advertise posts and screen applications. The result is that a backlog unfortunately builds up in the office. This places tremendous pressure on the office, since one would like to deal with all matters promptly, but due to sheer volume of work, the rate of productivity is slowed down. This problem was aggravated by the fact that the provincial public protectors the interim Constitution made provision for, did not come to fruition in the final Constitution. Unfortunately this led to some bad press for the office on two or three occasions, but overall there seems to have been an understanding of the predicament my office found itself in. I am proud to say that due to superhuman effort and dedication on the part of my staff, the backlog is to some extent being taken care of, and most matters except the very newest, have received attention.
10.3 It is imperative for my office to be able to deal with all complaints expeditiously and timeously. If unable to do so, it would discredit the office in the eyes of the public. This would be a sad day for democracy in South Africa. I am therefore extremely concerned that the Treasury Committee has deemed it fit to postpone a decision on my request for additional funding which served before the Committee at its meeting in October 1997. Of further concern is the fact that a Cabinet task team was set up to investigate the request for funding for the creating of regional offices, but that the Minister for the Public Service and Administration, who is supposed to head the "task team", says he knows nothing about the task team. I have written to the Minister of Justice for clarification on the matter. It seems that the Minister of Finance will not consider my request for additional funding without a report from this as yet non-existent "task team".
10.4 A disconcerting phenomenon to me is that a few Parliamentarians and Members or Provincial Legislatures do not seem to understand the neutrality of the Office, and that the unwarranted creation of perceptions of bias towards the one or other political party can do the Office of Public Protector immeasurable harm. The successes of this Office are directly attributable to the esteem it enjoys and to its image of impartiality. If politicians therefore drag the Office down into the political arena by using it to try and score political points, they are in fact undermining an institution underpinning democracy and therefore undermining democracy itself. Constructive criticism I shall always take heed of, but political mudslinging I find unacceptable.
11.1 The Office of Public Protector has a dual function. It is not only an investigative body. It serves also as catalyst for change and as a barometer of problems arising in the public administration, which should come to the attention of Government. It is therefore an Office that can be engaged usefully in tackling problems within the administration.
11.2 With the exception of the matters highlighted in paragraph 10 above, I am able to report that I have experienced no difficulties The office is a vibrant one, fulfilling its obligations in terms of the Constitution.
ADV. S A M BAQWA SC
13 MARCH 1998