Presentation of Public Protector Annual Report 2012/13To the Portfolio Committee on Justice and

Constitutional DevelopmentRedressing Maladministration and Promoting Good Governance

By Public Protector Adv Thuli MadonselaTuesday 15 October 2013

“Two roads diverged in a yellow wood,And sorry I could not travel bothAnd be one traveler, long I stoodAnd looked down one as far as I couldTo where it bent in the undergrowth;….

I shall be telling this with a sighSomewhere ages and ages hence:Two roads diverged in a wood, and I,I took the one less traveled by,And that has made all the difference.”

Robert Frost

CONTENTS

PART I: CORE BUSINESS1. A Colleague’s First Encounter with Parliament Triggers a Reflection on 4 Years of Service2.Our Constitutional and Statutory Mandates3.Our Higher Purpose: Why do We Exist?4. The Year 2012/13 at a Glance5.Recurring Themes From Cases for Noting by Parliament 6. A Note on the RDP Investigation7.A glimpse into the Health & Poverty Hearings8.Progress on Public Protector Rules 1

CONTENTS

PART 2: ACCOUNTING ON RESOURCES9. Analysis of caseload over the last three years 10. Total case work load for 2012/1311. Caseload per investigator 12. Human Resources matters13. Annual Budget and Expenditure14. Audit Report15. Management of AGSA findings 2

CONTENTS

PART 3: CONCLUDING REMARKS AND REQUEST TO PARLIAMENT16.Lessons Learned in year under review and last 4 years17. Request to Parliament18. A word of Gratitude

A COLLEAGUE’S FIRST ENCOUNTER WITH PARLIAMENT TRIGGERS A REFLECTION ON 4 YEARS OF SERVICE

“You are statutorily forbidden from discussing individual cases and I thought it would be helpful if we reminded ourselves of that. It is also the policy of this Committee not to prosecute or investigate individual cases, but we are anxious to learn about what you have learnt from your first few months in office.” – Chair of the Public Administration Select Committee in the UK Parliament to the Parliamentary and Health Services Ombudsman, Dame Julie Mellor

Reflections on Four Years of Service Independence, Accessibility, ADR and Impact –

Balancing Rigor(Accuracy)/Swiftness and Recourse for wronged individual(s)/Transforming system

OUR CONSTITUTIONAL MANDATESection 182 of the Constitution provides that:

(1)The Public Protector has the power, as regulated by national legislation-(a) 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;

(b) to report on that conduct; and(c) to take appropriate remedial action(2) The Public Protector has the additional powers and functions prescribed

by national legislation(3) The Public Protector may not investigate court decisions(4) The Public Protector must be accessible to all persons and communities(5) A report issued by the Public Protector must be open to the public

unless exceptional circumstances, to be determined in terms of national legislation, require that a report be kept confidential.

Section 182 is to be read with section 181 establishing the Public Protector tosupport and strengthen constitutional democracy

OUR 6 KEY STATUTORY MANDATE AREAS

Six(6) Key Statutory Mandates: Maladministration Mandate under the

public Protector Act 23 of 1994 Includes abuse or unjustifiable exercise of

power, capricious, discourteous conduct, improper or unlawful enrichment or receipt of any advantage; acts and omissions that result in improper prejudice.(s6)

Includes power to make findings (s8)

OUR 6 KEY STATUTORY MANDATE AREAS

Enforcement of the Executive Ethics Code i.t.o the Executive Members’ Ethics Act 82 0f 1998

Shared Enforcement of the Prevention and Combating of Corrupt Activities Act 12 of 2004

Safe Harbour for Whistle-blowers under the Protected Disclosures Act 26 of 2000

Review decisions of the NHRBC i.t.o Housing Protection Measures Act 95 of 1998

Resolve Access Disputes under the Protection of Access to Information Act 2 of 2000

OUR PURPOSE: WHY DO WE EXIST?

Higher Purpose Statement: “ Conscience of the state to act with integrity and fairness.”

“Even the most benevolent of governments are made up of people with all the propensities for human failings. The rule of law as we understand it consists in the set of conventions and arrangements that ensure that it is not left to the whims of individual rulers to decide on what is good for the populace. The administrative conduct of government and authorities are subject to the scrutiny of independent organs. This is an essential element of good governance that we have sought to have built into our new constitutional order. An essential part of that constitutional architecture is those state institutions supporting constitutional democracy. Amongst those are the Public Protector, the Human Rights Commission, the Auditor General, the Independent Electoral Commission, the Commission on Gender Equality, the Constitutional Court and others.”– Former President Nelson Mandela

2012/13 AT A GLANCE

25 860Cases received or

initiated

25 860Cases received or

initiated

R183 626 000Total Budget Allocation

R183 626 000Total Budget Allocation

37 770Cases Handled37 770

Cases Handled

284Total Staff

complement

284Total Staff

complement

13 995Cases carried over to

13/14

13 995Cases carried over to

13/14

22 400Cases Finalised22 400

Cases Finalised2 085

Cases Referred2 085

Cases Referred

24Formal Reports

Issued

24Formal Reports

Issued

2012/13 AT A GLANCE (CONT.)

Advanced Certificate in Fraud

Examination for 19 investigators

Advanced Certificate in Fraud

Examination for 19 investigators

July – August 2012: National Stakeholder

Dialogue

July – August 2012: National Stakeholder

Dialogue

May 212: Complaint-handling and human rights

training

May 212: Complaint-handling and human rights

training

15 – 20 October 2012: Good Governance

Week

15 – 20 October 2012: Good Governance

Week

4 Media Briefings

4 Media Briefings

51 347 677Persons Reached

51 347 677Persons Reached

49%Cases Upheld

49%Cases Upheld

893Outreach Clinics

893Outreach Clinics

RECURRING THEMES FROM CASES FOR NOTING BY PARLIAMENT

SERVICE FAILURE: From Indifference to Systemic Service Failure

CONDUCT FAILURE: From Non-compliance to Corruption

ACCESSIBILITY TO ALL PERSONS AND COMMUNITIES: Foot print implementation-

Long Road Ahead

A NOTE ON THE RDP INVESTIGATION & PUBLIC HEARINGS

Systemic Investigation on RDP Housing Underway since 2012 in response to a flood of RDP housing complaints Public Hearings Held in July to August 2012Hundreds of complaints received since commencement of public hearingsKey fault lines seem to relate to maladministration in planning, procurement, allocation and post allocation practices including Title deeds & resale patternsFruitful engagement with Portfolio Committee on Human Settlements on20 February 2013 and Cabinet on 24 October 2012.

A GLIMPSE INTO THE HEALTH AND POVERTY HEARINGS

3 Systemic Investigations ( Chris Hani Bara, Child Mortality, General Management) Public Hearings: July-September 2013 Fruitful Report Back Sessions with Provincial Legislatures (EC,KZN,NC,WC,MP,GP,LIMP,MP) Preliminary Observations: Voices & Views Reports

PROGRESS ON THE PUBLIC PROTECTOR RULES

The Public Protector Rules have been finalised and adopted by our EXCO Next Step is State Law Advisors for review and gazetting purposes To be tabled in Parliament for noting

PART 2

ACCOUNTING ON RESOURCES

ANALYSIS OF CASE LOAD OVER THE THREE YEARS

TOTAL CASE WORKLOAD – 2012/13

CASELOAD PER INVESTIGATOR

Human Resource matters

• PPSA’s vacancy rate as at 31 March 2013 was calculated at 3.7% percent, which was based on 284 filled posts, 295 funded posts and 11 vacant posts.

• The number of posts on approved organisational structure is 556, with 261 unfunded positions (which represents 47% of the total positions in the structure). This is a matter of serious concern to the Office.

ANNUAL BUDGET AND EXPENDITURE

Economic Classification

Compensation of employees 121 296 530 113 992 000 5 342 000 119 334 000 -1 962 530

Goods and Services 54 748 948 53 679 000 3 649 000 57 328 000 2 579 052

Depreciation/Amortization 2 926 501 3 017 000 - 3 017 000 90 499

Finance costs 1 229 824 655 000 - 655 000 -574 824

Capital Expenditure 8 910 881 2 901 000 391 000 3 292 000 -5 618 881

Total 189 112 685 174 244 000 9 382 000 183 626 000 -5 486 685

Final Budget 2012/13

Difference: Final Budget and Actual

(in Rands)Expenditure

2012/13

Approved Budget 2012/13

Adjustments

• Audit opinion– Unqualified

• Matters of emphasis– Restatement of corresponding figures.

AUDIT REPORT

AUDIT REPORT

• Restatement of corresponding figures.– As disclosed in note 29 to the financial statements,

the corresponding figures for 31 March 2012 have been restated as a result of an error discovered during compilation of the 31 March 2013 financial statements of Public Protector South Africa at, and for the year ended, 31 March 2013.

AUDIT REPORT

– The restatement was due to the following:1. Writing off of the intangible asset from acquisition date. (Case Management System)2. Accounting for operating lease expense previously not recorded.

– This resulted in a decrease of R5 813 456 in accumulated surplus Management Action Plan

– Preparation of financial statements bi-annually.

AUDIT REPORT continued…

Audit of predetermined Objectives•24% of planned targets not achieved – Most of these targets relate to turnaround times for finalising investigations and enhancing the current Case Management System

Management Action Plan•Additional funding to increase investigative capacity was requested from national Treasury. In the interim, the targets will be reviewed to ensure targets are achievable

AUDIT REPORT continued…

• Compliance with laws and regulations1. Procurement and contract management– Goods and services with a transaction value of

above R30 000.00 were procured without obtaining original valid tax clearance certificates as per the requirements of Treasury Regulations 16A 9.1(d) and practice note 8 of 2007/08.

AUDIT REPORT continued…

Management Action Plan– Provide training to officials implementing supply

chain management system.– Review and monitor compliance. (This will be

done by the relevant management level)

AUDIT REPORT continued…

2. Expenditure management–Creditors were not always paid within 30 days of

receiving an invoice , as required by section 38(1)(f) of the PFMA and Treasury Regulations 8.2.3.

–Irregular, fruitless and wasteful expenditure

Management response to AGSA findings…

Management Action Plan– Implementing an integrated financial

management system for receipt and payment of goods and services.

– Monitor adherence to time lines for payment of creditors on a regular basis. (Review of age analysis by relevant management level)

– Timely monitoring of compliance and proper planning in the future acquisitions of technology and other systems.

PART 3

PUBLIC PROTECTOR CLOSING REMARKS AND REQUESTS TO PARLIAMENT

CLOSING REMARKS AND REQUEST TO PARLIAMENT

• The Public Protector’s resources are not commensurate with the mandate and strategic objectives of the organisation. Public expectations have significantly increased over the years.

• Key priorities that need immediate attention from Parliament are:– Budgetary constraints that impact on our ability to adequately

execute our constitutional mandate– Human resource constraints particularly the investigative

capacity– Implementation of the Occupation Specific dispensation for

the Legally Qualified personnel– Expansion of the Public Protector footprint (and related

challenges regarding acquisition of adequate office space)

CLOSING REMARKS AND REQUEST TO PARLIAMENT

Financial year2014/2015

Financial year2015/2016

Financial year2016/17

Upgrade of personnel

R3 241 086 R3 87 409 R3 672 241

OSD Implementation

R11 552 847 R12 176 701 R12 822 066

Funding for newly created posts

R17 025 024 R17 944 375 R18 895 427

Total R31 818 957 R33 608 485 R35 389 734

CLOSING REMARKS & REQUEST TO PARLIAMENT

LESSONS LEARNED IN YEAR UNDER REVIEW AND 4 YEARSAbout Us: A significant increase in the number and complexity of

complaints received by the Public Protector Increased reach of services in pursuit of section 182(4) of the

Constitution Increased productivity levels amid continuing challenge

regarding balancing swiftness and accuracy despite increase in staff and ongoing improvements skills and work methods

Holding hands with municipalities, provinces and affected national departments amid a few implementation concerns

REMARKS & REQUEST TO PARLIAMENT

LESSONS LEARNED IN YEAR UNDER REVIEW AND 4 YEARSFrom Our Oversight Work: Systemic administrative deficiencies mostly relating to lapses in

compliance Service Failure: From indifference to systemic failures in services

such as RDP housing, administration of estates and municipal services

Improvements in some service areas e.g. SASSA and ID concerns amid concerns over persisting duplicate ID problem and impact on poverty

Growing reports of corruption and tender rigging Without ending impunity, no difference can be made

CLOSING REMARKS & REQUEST TO PARLIAMENT (CONT.)

Need to assist local government with policy development and training;

Need for tightening of Ethics Regulatory Framework and Training on Ethics.

Need for consistency in the application of disciplinary action

CLOSING REMARKS & REQUEST TO PARLIAMENT

REQUEST TO PARLIAMENT Additional Funding: R35 389 734 An opportunity to discuss section 182 of the Constitution

read with relevant sections of section 181 Support in instances of failure to implement remedial action

as envisaged in section 182(1)(c) of the Constitution An Opportunity to discuss and finalise Public Protector Rules Note and support AOMA/AORC activities, including Africa

Ombudsman Summit 2013 in Cape Town December 2013A WORD OF GRATITUDE

THANK YOU

SIYABONGA; REA LEBOHA; DANKIE“Never doubt that a small group of

thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.” – Margaret Mead

0800 11 20 40

www.publicprotector.org