Thank you very much for the opportunity to submit comments to your Committee on the provisions of the Public Protector Amendment Bill (the Bill). As you are aware, the Bill is the result of a combined effort by my office, the Department of Justice and the State Law Advisers. The comments that we submit refer to some changes that have been made subsequent to our final input. Certain provisions have also been reconsidered and we propose some improvements.
1. Section 2 of the Bill
According to the amended Preamble, sections 181 to 183 of the Constitution provide for the establishment of the office of Public Protector in order 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 have resulted in any impropriety or prejudice, in order to strengthen constitutional democracy in the Republic. (My underlining). This provision focuses on the investigation part of the powers of the Public Protector as if it is the only manner in which the Public Protector is supposed to assist in the strengthening of constitutional democracy, as it is envisaged by the provisions of section 181 of the Constitution. This is an oversimplification of the reality as the Public Protector cannot give proper effect to his/her brief, without reporting on the conduct in question and without taking appropriate remedial action, as is provided for in Section 182(1)(b) and (c) of the Constitution.
We suggest that it would be more suitable and formally correct, should the first paragraph of the amended preamble provide that:
"WHEREAS sections 181 to 183 of the Constitution of the Republic of South Africa, 1996 (Act No 108 of 1996), provide for the establishment of the office of Public Protector in order to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to have resulted in any impropriety or prejudice, to report on that conduct and to take appropriate remedial action, in order to strengthen constitutional democracy in the Republic."
2. Section 3(b) of the Bill
The proposed amendment to section 7 of the principal Act provides for two categories of procedure pertaining to investigations by the Public Protector. Firstly, it is provided that the Public Protector shall have the power to conduct a preliminary investigation for the purpose of determining the merits of a complaint. This amendment is of vital importance as the current section 7 only provides for a more formal type of investigation. Experience in my office has shown that most of the complaints received initially requires a preliminary investigation in order to establish the facts and merits of the allegations. Many complaints are resolved during this process. However, should the preliminary investigation indicate that a more formal type of investigation is required under the particular circumstances, the provisions of section 7 of principal Act (as it is modified by the proposed amendments) would suffice.
The definition of "investigation" in the section under consideration refers to an investigation as referred to in section 7 "and any preliminary investigation related thereto". As we understand this provision, it means that in order to qualify to be defined as an "investigation", a preliminary investigation has to be related to an investigation referred to in section 7. This is confusing as the amended section 7, as indicated, refers to two types of investigations. Although a preliminary Investigation might lead to a more formal investigation, it does not happen as a matter of course.
Our contention is that the provisions of the Act should apply to both procedures of investigation and that the definition of "investigation" should merely provide that: " 'investigation' means an investigation referred to in section 7".
3. Section 5(e) of the Bill
According to this amendment, the Public Protector may approach the committee with regard to any matter pertaining to the office of the Public Protector which the National Assembly may deal with in terms of the Act. The issues that the National Assembly can deal with in terms of the Act relate to the appointment and removal from office of the Public Protector and the Deputy Public Protector and the appointment of staff. However, the matters where my office require the assistance of the committee are those that Parliament has to deal with in terms of the Act, such as the appropriation of funds (see section 6(f) of the Bill) and reports (see section 10(2) of the Bill). Consequently, we suggest that the expression "National Assembly" in the section under consideration should be substituted by the expression "Parliament".
4. Section 6(a) of the Bill
Section 3(2)(a)(i) of the principal Act provides that an appointment of a Deputy Public Protector shall only be made from persons nominated by the joint committee after consultation with the Public Protector. (My underlining). The amendment of this section excludes the obligation of consultation with the Public Protector.
Section 3(1)(a) of the principal Act provides that the Public Protector shall, subject to his/her directions and control in the performance of his/her functions be assisted by one or more Deputy Public Protectors. However, should a Deputy Public Protector be appointed without the input of the Public Protector, it might, for whatever reason (such as previous personal differences, family relations, previous business relationships) lead to a situation where the performance of the functions of the office might be jeopardised as a result of, for example, a lack of confidence, perceptions of not being objective, etc. We submit that it would be a worthy practice to involve the Public Protector in the nomination of persons that he/she will have to rely on to work under his/her directions and authority. It is not envisaged that the Public Protector should be in a position to prescribe to the committee, but rather that the consultation with the Public Protector might prevent a future difficulty which could have been prevented. It is therefore suggested that the provision concerned should read: "nominated by the committee after consultation with the Public Protector". This would also mean that the provisions of section 3(2)(d) of the principal Act should not be omitted, but amended accordingly.
5. Section 3(12) of the principal Act.
This subsection provides that the Public Protector may, in the performance of the functions contemplated in subsection (1)(c), at his/her request after consultation with the Public Service Commission, be assisted by officers in the Public Service seconded to the service of the Public Protector in terms of any law regulating such secondment.
The reference to subsection(1)(b) has the result that the Public Protector may only request the secondment of staff to assist him/her in the performance of financial, administrative and clerical functions pertaining to the office. Experience has proven this arrangement to be unsatisfactory. It often happens that I require assistance of particular expertise that is available in the Public Service, to assist me in investigations, such as in the medical, auditing, engineering fields, etc. Whenever the person that has been identified that can assist me is required for a substantial period, secondment would be the most appropriate measure. However, under the provisions of the principal Act, the possibility of secondments is limited, which leaves me with no choice but to obtain these skills in the private sector, which can be very expensive. The proposed secondments would, naturally, be implemented in such a way that the credibility of the investigation concerned not be jeopardised. It is of paramount importance to the effectivity of my office that subsection (12) of section 3 of the principal Act be amended to provide that:
"The Public Protector may at his or her request after consultation with the Public Service Commission, be assisted by officers in the Public Service seconded to the service of the Public Protector in terms of any law regulating such secondment."
6. Section 8 of the Bill
6.1 Subsection (b)
In order to make a sensible comment on the provisions of subsection (a), it is necessary to deal with subsection(b) first.
The amendments to section 6(4) of the principal Act are required to bring the provisions concerned in line with the provisions of the Constitution, 1996. Whilst the provisions of section 112(1)(a) of the interim Constitution, 1993, were more detailed as to the allegations that had to be investigated by the Public Protector, section 182(1) has been formulated in more general terms. However, the aim of the amendments is also to provide more detail to the concept of "state affairs" as it is contemplated by sections 182 of the Constitution, 1996. These amendments are being introduced in terms of the provisions of section 182(2) of the Constitution, 1996, that provides that:
"The Public Protector has the addition ii powers and functions prescribed by national legislation."
It is our contention that "state affairs' should include any institution or operation that is funded, whether partly or in full, by public funds as well as any person or institution that performs a public function. The expression "a person performing a public function" has been referred to by the provisions of section 112 of the interim Constitution, 1993. However, these provisions did not provide for "state affairs" but limited the scope of investigation to "the affairs of government at any level". Persons or institutions performing a public function, such as Commissions of Enquiry, institutions mentioned in Chapter 9 of the Constitution,1996, the Truth and Reconciliation Commission, etc, do not necessarily resort under "the public administration in any sphere of government" but all have to do with "state affairs". The expression "any person or institution performing a public function is, in our view, more descriptive and would prevent interpretation disputes from arising.
Experience in the office has convinced us that the principal Act should be amended to refer directly to "any person or institution performing a function on behalf of government" as is contemplated by the proposed subsection (d) of section 6 of the principal Act. Consultants, sub-contractors and temporary assigned persons all perform functions in the interest of "state affairs". The proposed provision would serve to clarify this matter.
The constitutional obligation of the Public Protector is, in our view, more clearly defined by these amendments.
The final paragraph of the amended subsection (4) has a typographical error as the expression: "that is alleged or suspected to be improper or to have resulted in any impropriety or prejudice" should refer to all the subsections and should not be interpreted as being part of subsection (d) only.
6.2 Subsection (a)
In some exceptional cases, a court of law, proper legal advice or the assistance of an attorney would be more appropriate to deal with the complaint that has been referred to my office. The provisions of section 6(3)(b) of the principal Act provides the Public Protector with a discretion to refuse to investigate if the person ostensibly prejudiced has not taken all reasonable steps to exhaust his or her legal remedies.
The amendment as provided for by the subsection under consideration limits the mentioned discretion to matters as referred to in subsection (d). This is illogical as the Public Protector should be able to exercise his/her discretion ii this regard in all matters that are referred to his/her office. A limitation in this respect might be perceived as being discriminatory as far as particular complaints are concerned and will also cause situations where it might as a result of a misconception by a complainant, be expected of the Public Protector to act beyond the powers and authority provided for by the Constitution and the Public Protector Act.
It is suggested that paragraph (b) of subsection (3) of section 6 be amended to provide that:
"prejudiced by conduct referred to in subsection 4 or section 182(1)(a) of the Constitution, 1996, and has not taken all reasonable steps to exhaust his or her legal remedies in connection with such matter.".
6.3 Subsection (d)
6.3.1 The "new" subsection 8
The new subsection 8 is a repeat of a similar provision of the interim Constitution, 1993 (see section 112(5)). However, for the sake of clarity and as my office regularly receives enquiries in this regard, from the public as well as from attorneys, it is suggested that this subsection also includes a reference to prescription as well as to the process of formal litigation. Although the common law position and the established principles pertaining to these aspects would apply in the absence of any statutory provision referring thereto, it should be emphasised that the Act under consideration should be accessible and comprehensible to the ordinary member of the public that might not have a legal background or access to legal advice. We suggest that this subsection should read:
"Recourse to, or the exercise and performance of any powers and functions of the Public Protector shall not oust the jurisdiction of a court of law to hear any matter or cause whatsoever and has no effect or influence at all on any form of litigation or time limitations in any law."
6.3.2 The "new" subsection 9
The transitional arrangements in the interim Constitution, 1993, pertaining to the former Ombudsman, provided, in section 243, that the Ombudsman continued to hold office and to exercise and perform the powers and functions provided for in the Ombudsman Act, 1979, until the Public Protector had been appointed and had assumed office. I took office on 1 October 1995. As neither the Constitution, 1996, nor the Public Protector Act provide for retrospective powers of Investigation, the common law position should prevail. It is an accepted principle of Administrative Law that the Legislature only wants to regulate the future. Any retrospective powers should be provided for explicitly. Being a creature of statute, the Public Protector can only operate in terms of the provisions of the Constitution and the Public Protector Act. This means that the Public Protector can only investigate conduct that occurred on or after 1 October 1995.
Although the jurisdiction of the Public Protector presently does not present a problem, it is envisaged that the period within which a complaint should be lodged at the office should be limited in order to prevent future problems. Government records, on which most of the investigations in my office rely, are destroyed after prescribed periods of time, staff resign or retire and witnesses and evidence disappear, which cause any investigation into most categories of those complaints that are only lodged after a substantial lapse of time as from the date of occurrence of the incident complained about, to become extremely problematic, if not impossible. It would also, in many such cases, serve no u8eful purpose to endeavour to take remedial action as the lapse of time would make any recommendation of academic value. There should, however, be provided for a discretion of the Public Protector to investigate except oral cases which are reported to his/her office after expiry of the limited period. We are of the view that the situation in South Africa warrants a period that would accommodate the underprivileged members of our communities also. Our experience has shown that a period of two years as from the date of the conduct complained about is adequate to allow the complainant to endeavour to exhaust other remedies before approaching the Public Protector. Such a period would also b(.' fair to the government agency involved and would allow for sensible implementation of remedial action that might be recommended.
Similar provisions can be found in ombudsman institution legislation in other countries, for example:
Northern Ireland 12 months
Ontario, Canada 12 months
Australia 12 months
Hungary 12 months
Netherlands 12 months
Puerto Rico 6 months
Mauritius 12 months
Trinidad and Tabago 12 months
Zimbabwe 12 months
As should be evident from this comparison, the period of two years is a reasonable one.
7. Section 10 of the Bill
The expression "therefore" in the inserted subsection(2A)(b) is a typographical error and should read: "thereanent"".
It would be appreciated if my office could be afforded the opportunity of submitting further oral evidence to your Committee in respect of these submissions.
I am looking forward to your response regarding the date and the venue of the hearing of oral evidence.