December 14, 2018

Public Protector blames all on lack of funds, again

Public Protector (PP) Busisiwe Mkhwebane appeared to have one overriding concern when she appeared before Parliament’s Justice and Correctional Service Committee to present her Annual Performance Plan (APP) in April.

She needs more money, she told the Committee. Morale was at an all-time low because staff was working under considerable pressure, and increases in remuneration and the provision of resources were urgently needed. She repeatedly made the point that without more money she could not meet her mandate.

For the Committee, however, the budget came quite low down on its list of priorities. Concerns about whether the PP met her constitutional mandate took the discussion well beyond funding shortages, which all government entities are currently having to deal with.

The Public Protector is an Office that belongs to the people of South Africa and they rely on it for protection.

Committee Chairperson Mathole Motshekga began the meeting by reminding the Public Protector that there were numerous public concerns which she needed to urgently address. An impression cannot be created amongst the public that officials – inclusive of Chapter 9 institutions ‑ are incapable of running government properly, he said. His office is inundated with public complaints that the Public Protector is not properly attending to their matters. The Committee respects the independence of her Office but at the same time she must remain accountable to the public.

While stressing that she was not on trial, Motshekga urged her to use the Committee meeting to clarify public concerns, pointing out that the Public Protector is an Office that belongs to the people of South Africa and they rely on it for protection. He said any negative aspersions or perceptions about the integrity of her Office must be fully dispelled.

Yet by the end of the meeting the Chairperson voiced a warning that lack of quality leadership leads to a breakdown in public trust in government. He added that the budget for service delivery at PPSA cannot be used up in judicial reviews in court for the Public Protector to continually defend herself personally against aspersions raised against her.

The Chairperson said this raised serious negative perceptions about the Public Protector’s integrity and independence and such perceptions erode public confidence in her Office. He said he hoped this would be the last time that these perceptions would have to be raised.

The Public Protector’s determined response was that PPSA aimed to support constitutional democracy in accordance with Mandela’s legacy, but a lack of proper funding and capacity prevented the institution from fully achieving its mandate.

The meeting started off looking fairly promising. The PP did her best, starting her presentation with the Public Protector Strategic Vision 2023 and its eight pillars that seek to expand the reach of her office to grassroots communities, especially in the rural areas and farming communities. Her aim, she said, was empowerment of local citizens to act as their “own liberators”.

She went on to outline an ambitious programme for her Office, with a target of 30 investigation reports per year; finalising 10 already underway; holding dialogues with organs of state; public outreach events and radio shows; and building relations with diverse ombudsmen. It was “an impact driven approach” which would realise the targets and goals of the National Development Plan (NDP). Everything that could be expected of a Public Protector was thrown in: there would be exposing of maladministration, being a catalyst for change, ubuntu, promoting and sustaining good governance, etc.

Her report stated: “We believe that through this approach, we will help the country get a step closer towards the realization of national targets such as addressing poor public services and improving good governance as spelt out in the National Development Plan.”

As an APP it was impressive, except for one thing. It was not affordable and she should have known that given that her repeated requests for more funding, which been turned down.

The Acting Chief Financial Officer,. Nonhlanhla Dick, was given the task of presenting the budget report. Despite being young and new to the job, even the Chairperson commented that she gave a good presentation. But the figures did not all add up. In short, she could only conclude that a huge amount of the current PPSA structure remained unfunded.

For the record, the budget for the Public Protector of South Africa for 2018/19 is R320 million. Low staff morale notwithstanding – and they do work hard, there is a lot that requires investigation by the Public Protector ‑ approximately R250 million is spent on staff remuneration. That means about 80% of its budget goes on salaries, even after “PPSA reduced its personnel cost to R250 132 000 in 2018/19 by not renewing contracts of trainee investigators and interns that expired at the end of March 2018 and the freezing of vacant funded positions”. That left R70 million for:

  • delivery of services to persons and institutions ‑ R58 million,
  • Public Protector services ‑ R139 million,
  • strengthening oversight and public complaint mechanisms ‑ R4.5 million.

From that point on the report began to look more like a wish list than a budget. The office has an establishment of 707 positions, of which only 372 are funded in the 2018/19 financial year. The office needed an additional R746,474,926 over the medium term to fully fund the organisational structure, she said. Add to that another R5,442,193 for “Realignment of salaries for admin personnel,” by which she meant bonuses and increases to “avoid CCMA court battles” and “retention of highly skilled personnel”.

The digitalised Case Management Systemnot yet functional and requiring R8million to get going – will need an additional R26,945,680 for support and maintenance during the Medium Term Expenditure Framework (MTEF).

Then of course there is the mounting cost of litigation involving the PP. It was stated as delicately as it could be in the report: “It is evident that the additional funding of R5 million per year allocated in the 2016 MTEC budget process is not sufficient since more cases are taken on review and appeal. An additional R24 million is required over the medium term to fund litigation costs.”

The report also said the PPSA also needs more security in most of its provincial and regional offices, at a cost of approximately R12,800,000 in 2018/19, R3,304,600 in 2019/20 and R3,519,399 and 2020/21. There was more – updating the current video conferencing system; a new integrated telephone system; and “subject matter experts when executing complex investigations that requires special skills in certain areas. These include actuaries, procurement experts, forensic specialists, build environment specialists and IT specialists. The cost over the medium term are (sic) estimated to be R31,700,800.”

Then there is “Consultant expenditure” which includes the fees of the Auditor General – which is the internal auditor – and Ngubane Consultants which is the external auditor and the use of the State Security Agency (SSA) services don’t come cheap.

The unfortunate Ms Dick had to explain that so far, other than freezing three posts, the PPSA has tried to cut its budget by cancelling leases on motor vehicles and seeking cheaper means of transport, calling for a halt to the purchase of bottled water, and humbling itself by begging office space from other government entities. There was an idea about needing a dedicated building to be built for the PPSA as well as suitable office accommodation in provinces and regions, but that was not elaborated upon.

In short, an additional R250 million would be needed to fund the PPSA’s normal operations for the year and a total of R870 million would be required for the entire Medium Term Expenditure Framework.

The Committee was having none of it. Gijimani Skosana (ANC) asked if the Public Protector’s Office was aware that the country is facing an array of financial challenges and all institutions, including Chapter 9 institutions, are therefore under financial pressure.

PP assured the Committee that she is aware of the fiscal challenges facing the country. She was doing what she could to cut costs. The PPSA had taken a decision to summon public officials to the PPSA Office for investigation, rather than investigators travelling to their offices. She didn’t say who paid the officials’ travel costs.

The Department of Public Service and Administration (DPSA) had been approached to provide assistance in ameliorating the financial constraints of the institution and has agreed to assist in developing innovative strategies to develop an integrated structure for PPSA.

What followed was a hectic to and fro-ing that probably told a lot more about the APSA than her APP had intended. It is summarised for the reader in a Q&A format. Every effort has been made to ensure accuracy.

Question

Glynnis Breytenback (DA) asked how many reports released by the PP in the past three years have been taken on judicial review, and at what cost?

Answer

Four reports had been taken on review in 2014/15, three in 2015/16, four in 2016/17 and seven reports in 2017/18, including:

  • “Stringed Along” incurred R719,000;
  • The escape of animals from the Umfolozi game reserve ‑ R319,000;
  • “Regulating Justice” ‑ R1.2 million;
  • “Saving by Notice” ‑ R1.3 million;
  • “Derailed” ‑ R79, 000 (by the date of publication);
  • “Cost of Deviation” ‑ R1.2 million;
  • Use of labour brokers by the South African Post Office ‑ R798,000;
  • “State of Capture” ‑ R9 million (by the date of publication);
  • CIEX ‑ R8 million (by the date of publication).

No costs have yet been incurred for the Vrede report taken on judicial review by the Democratic Alliance (DA) and the Council for the Advancement of the South African Constitution (CASAC).

Question

Madipoane Mothapo (ANC) asked about the implications and consequences of perceived institutional instability at the PPSA? Werner Horn (DA) asked what has been the cost of these resignations to the public purse?

In 2016, the CEO, identified as a Ms Zondo, left and was replaced shortly after that by a Ms Themba and a Mr Dlamini. Nthoriseng Motsitsi is now occupying the position as acting CEO. The CFO position has experienced the same instability, with a young acting CFO in the post at present. Mothapo pointed out that if the senior posts of both CEO and CFO are occupied in an acting capacity, in her view the PPSA is suffering from institutional instability.

In the 2017/18 financial year, one senior manager and five senior investigators had resigned. Mothapo added that there is a public perception that Adv Mkhwebane has engaged, or is engaging, in a purging of the staff within her institution.

Reply

The Public Protector stated that the institution is stable. Zondo had resigned due to health issues. Dlamini had resigned of his own free will. Motsitsi, the acting CEO, is currently on sick leave, and is therefore temporarily absent. Three candidates had been shortlisted for the CEO post, but all had subsequently pulled out. Another five candidates have been sourced but they still have to undergo a competency assessment and security vetting. Negotiations with the SSA would be held to fast track those processes.

Regarding cost to the PPSA, a settlement agreement to the value of eight months’ salary had been concluded with one staff member person who had referred a dispute to the CCMA. No severance packages were paid to officials who willingly resigned.

Question

Why is the Deputy Public Protector, Adv Kevin Malunga, absent from most Committee meetings?

Reply

PP explained that the Deputy Public Protector assisted in training staff, which is why he could not attend. Challenged by the Committee about the wisdom of using her Deputy in this role, she explained the Deputy Public Protector is overseeing service providers who train senior investigators on procurement law to ensure that quality reports are produced.

The Chairperson stated he did not want to be accused of parliamentary overreach but given the current lack of capacity within her Office he would advise PP to immediately recall the Deputy Public Protector to her Office to provide his capacity and skill. His duty was not to run workshops. There were many academics who could provide such training.

Elphas Buthelezi (IFP) asked if the Deputy Public Protector is sufficiently equipped to act in her position if she was absent. In her reply, PP said that the Deputy Public Protector does not occupy an administrative position such as herself. Apart from training he can also provide advice on legal issues and principles as he is a qualified lawyer. If she is not present, the Deputy Public Protector can only act on matters on which he has delegated authority.

She confirmed that the Deputy Public Protector had been delegated certain powers before she arrived in her post, which included dispute resolution and service delivery. On her arrival, she delegated a number of those powers to executive managers. Due to challenges related to the quality of PPSA reports, it was decided that investigators should be trained to write their own reports which would be of sufficient quality to withstand court scrutiny, and that was overseen by the Deputy Public Protector. In her view, the relationship between herself and the Deputy Public Protector is a sound one.

Question

Horn (DA) raised a matter which is now in the public domain about the Vrede Dairy Report. He said the Strategic Plan of the Public Protector states the PP is not limited to investigating only what is framed in the original complaint but is permitted to take her own initiative in an investigation. Why was the Strategic Plan ignored in her Vrede Dairy investigation?

Reply

The Public Protector explained that the report was already in a “draft” format when she took office. The decision had already been made and the Executive Committee, through the Accounting Officer, had signed off on the report.

The Chairperson interjected to ask if the PP did not think that it was a serious omission if the investigation, and final report, did not investigate the role of politicians in the Vrede matter and asked why the Public Protector did not revise the report, and deal fully with all the issues, including political involvement in the scandal, to rectify that initial omission?

PP said she had already answered this at a Committee meeting in March where she had explained that a new file would have had to be opened to expand the scope of the original report as she is currently functus officio and cannot exercise her powers in respect of the same matter twice without the report being set aside on judicial review. She said a new file can be opened to investigate the role of politicians in the new future.

Question

Horn asked to what extent is the Public Protector under an obligation to keep complainants informed about the progress of an investigation?

Reply

PP said complainants are updated on the progress of investigations. The rules do provide timeframes within which investigations must be completed in terms of the Executive Ethics Members Act and if a matter cannot be finalised within 30 days, the President is informed of that fact and he is given the report as soon as it is finalised.

Regarding Minister Malusi Gigaba, during a meeting with DA leader Musi Maimane in December 2017, an agreement was reached that all updates on that matter would be sent to Maimane directly. The media became aware of the update sent to the DA. The PP added that the media often pose questions about the progress of certain investigations and that is how information is provided.

Question

Why did she appeal the North Gauteng High Court ruling of the personal costs order against her?

Reply

She told the Committee that the Public Protector is obligated to perform her functions without fear, favour or prejudice. A personal costs order – such as the one given by the Gauteng High Court – has the effect of undermining the independence of the Public Protector as it instils a sense of fear in her about the performance of her constitutional duties. It was for this reason that her application for leave to appeal focused primarily on the personal costs order of the High Court judgment. She stressed that the personal costs order of the High Court has the detrimental effect of undermining the independence of the Public Protector.

Question

Adv Breytenbach asked by how much is the PPSA budget in the red?

Reply

The current deficit of PPSA was around R15 million at the end of March 2018. However, the DoJ did come to the rescue of PPSA in providing that amount in order to meet that deficit which assisted the institution greatly.

Question

Why has security expenditure increased significantly and how does that impact on the already constrained budget?

Reply

The Public Protector said the Acting CFO would speak specifically to the question of expenditure on security and its increase, but added PPSA has had to compromise on its security due to a lack of financial resources.

Question

Has the Microsoft platform licence been purchased to activate the electronic case management system, which has not been functional since at least 2014.

Reply

The Microsoft licence had been purchased and the software installed. PP said the Acting CFO would provide more detail on the amount spent on the licence. The PPSA now needs an additional R8 million to properly operationalise the electronic case management system, which is in its first phase of development and has therefore not been installed. PPSA has all the required processes in place to operationalise it, she said, but further assistance is required and has been requested from SSA and the State Information Technology Agency (SITA). Meanwhile PPSA is relying on spreadsheets to keep track of investigations. The PP agreed this delay has a negative impact on service delivery and efficiency.

Question

Why does the Public Protector want to appoint a special advisor, how will such a person aid her in performing her functions and given the budget constraints, how would that person be paid?

PP replied Sibusiso Nyembe, a qualified attorney with a variety of additional qualifications, had been appointed to that position for three months since April 2018 to assist the legal services division as he has practised as a conveyancer in the past. He is being remunerated from savings from cuts in staff costs.

Asked by the Chairperson if the Deputy Public Protector could not provide the advice currently been provided by the special advisor, the PP’s response was confusing, to say the least. She stated the Deputy Public Protector is not a training officer. He oversees the work of the Office.

Question

Why did she lie to the Committee during her appearance on 6 March 2018 about meeting the President about the ABSA/CIEX matter?

Reply

Where a meeting with the Presidency did occur, that meeting was fully disclosed, she said. That meeting dealt specifically with the CIEX Report. Other meetings with the Presidency dealt generally with the operations of her Office such as violations of the Executive Members Ethics Act. She said an affidavit on the PPSA website properly sets out what transpired.

Question

Horn (DA) wanted to know the extent of the State Security Agency’s (SSA’s) involvement in her Office.

It was reported that SSA had seconded a CFO to her Office, on her request, and that the security manager was being trained by SSA. Horn suggested Parliament and the Committee should be concerned about the close involvement of the SSA in the PPSA and seriously consider whether the Office of the Public Protector is in fact the independent and impartial office that it is constitutionally mandated to be.

At this point the Chairperson interjected, saying it is time PP came completely clean about her relationship and/or involvement with the SSA. This has been a concern for some time and the Public Protector must put the matter to rest. He asked: Why is there an overreliance on the SSA by the Public Protector? What relationship does she have with the SSA? Does she work for the SSA currently or has she worked for them in the past?

Reply

On the role of the SSA in the Office of the Public Protector, Adv Mkhwebane said the SSA is an institution created to assist the country on security matters. She had worked for SSA for three months and therefore was aware that SSA had additional capacity which could be utilised and that the Public Protector Act permits her to make use of the SSA in providing additional capacity to PPSA.

The PPSA security manager is required to implement the management of security information systems and SSA is training him on which information should be classified. Although SSA is not a delivery orientated system, capacity from institutions, such as SITA which has network specialists, can provide assistance to PPSA and is currently responsible for managing the Microsoft licence system.

She said the SSA is a constitutional institution and there is no reason why their excess capacity should not be used when it is available. PPSA does not only work with the SSA, but with all departments including the DoJ. She assured the Committee that the SSA has no active or direct role in investigations and that all investigations are conducted within the limits of the law.

Moira Levy

Information sourced from the Parliamentary Monitoring Group.

Additional Info

  • Author: Moira Levy
Last modified on Wednesday, 09 May 2018 18:24

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