Address by Public Protector Adv Thuli
Madonsela on the occasion of a dinner of the Rotary Club of
Johannesburg on Tuesday, November 08, 2011.
Programme Director;
President of the Rotary Club of Johannesburg, Mr Mike
Moriarty;
Members of the Rotary Club;
Ladies and gentlemen;
I am deeply honoured by the invitation to address this
august gathering of the Rotary International and the Rotary
Club of Johannesburg.
More than anything, I am humbled
because this invitation has made it possible for me to be
among a community of humanitarians and exchange views with
them. These are the people who make a real difference
without any legal obligation to do so! The Rotary Club of
Johannesburg belongs to the global rotary movement, which
has over decades seen business and professional persons
voluntarily making efforts to provide humanitarian services
to the needy, promoting good ethical conduct and advocating
for peace.
Apart from the important aspects of ethics and peace, the
key word for me in all of this is “humanitarian”, which
derives from “humanity”, simply known in my culture as “Ubuntu”.
Ubuntu encapsulates a sense of selflessness, care and
compassion, among other things. It talks to an act of
willingly providing a service to a stranger or community
without expecting anything in return and doing it because it
needs to be done and not even requiring public recognition
for it.
Unpacking this concept of Ubuntu, fellow humanitarian and
former South African state President, Nelson Mandela, put it
this way:
“A traveller through a country would stop at a
village and he didn't have to ask for food or for water.
Once he stops, the people give him food, entertain him.
That is one aspect of Ubuntu, but it will have various
aspects. Ubuntu does not mean that people should not
enrich themselves. The question therefore is: Are you
going to do so in order to enable the community around
you to be able to improve?”
This explanation of Ubuntu probably best captures the
essence of what rotary clubs around the world, including
this one, exist for.
While browsing your website in preparation for this
address, it was heartening for me to learn of the meaningful
contribution you continue to make in improving the lives of
the needy and helping develop our society. I was touched
to read about the crèches in Bonsmont and Nancefield, a
school in a rural settlement north-west of Johannesburg and
a health care clinic in Vosloorus, to mention but a few.
All these and more were built for needy communities,
thanks to the devotion of the selfless men and women
gathered here tonight with a little help from their
counterparts elsewhere in the Americas and Europe. I have
taken a keen interest in this element of Ubuntu because
parallels can be drawn from this aspect of your work and
what my office does. As a matter of fact, Ubuntu is one of
the ten institutional values that my team and I strive to
live by in the execution of our duties. Early this year I
attended an event where William Gates Snr gave a keynote
address at the Third World Justice Forum in Barcelona Spain.
He implored business people across the globe to incorporate
corporate social investment as an integral part of business.
He argued that without this contribution by business, we
cannot successfully overcome global challenges such as
disease and abject poverty. Incidentally some of the
participants asked Bill Gates Snr for a recipe for
successfully engaging business people in Africa and Asia to
interest them in meaningful sustained corporate social
investment work.
I am encouraged that your club is already involved in the
work Mr Gates and his son are passionate about. The
challenge in our context is for pioneers such as yourselves
to encourage new business people to do the same. For
example, instead of blowing obscene amounts of money in
petty ventures such as birthday parties and related social
events, these business persons, who are largely
beneficiaries of transformative state policies such as Broad
Based Black Economic Empowerment, could build schools and
hospitals or donate much needed school and hospital
equipment in our country. Getting back to your request
that I address you on the role and operations of my office,
your invitation and suggestion on the focus of my address
got me and my team thinking. We asked: What really did the
drafters of our Constitution have in mind when they came
with the concept of “protecting the public”. Against whom or
what was the public to be protected? Our answer is that
the public needs to be protected against potential excesses
in the exercise of public power. Like the Swedish Monarch
about two centuries ago, the drafters of our Constitution
concluded that the traditional checks and balances that seek
to curb improper exercise of public power would be
inadequate for the constitutional democracy we sought to
transform our country into. This reasoning gave birth to
the inclusion in our institutional framework of
constitutional bodies such as the Public Protector, Auditor
General Human Rights Commission, Independent Electoral
Commission and the Public Service Commission. What exactly
does the Public Protector do? Before I outline what my
office does, perhaps I should start with the constitutional
foundations for the office. The Public Protector is
established under section 181 of the Constitution as one of
several independent institutions whose mandate is to support
and strengthen constitutional democracy. The specific
mandate of the Public Protector as outlined in section 182
which states 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”
Section 182(4) further provides that: “The Public
Protector must be accessible to all persons and communities”.
Section 182(2) states that: “The Public Protector has
additional powers and functions prescribed by national
legislation”.
One of the hidden secrets regarding the statutory
mandates of the Public Protector is that the office can
review the decisions of the Home Builders Registration
Council under the Housing Protection Measures Act and that
it has an anticorruption mandate under the Prevention and
Combating of Corrupt Activities Act and is one of the
agencies with an original mandate to protect whistle blowers
under the Protected Disclosures Act. The Public Protector is
also one of the information regulators under the Protection
of Access to Information Act. What I believe you already
know very well must be the Public Protector’s core and
classical mandate to investigate and redress
maladministration, abuse of power and abuse of state
resources under the Public Protector Act. You also are
probably familiar with the mandate as a sole agency
responsible for enforcing the Executive Members’ Ethics Act
and the Executive Ethics Code. In the past year we handled
over 21 000 cases. Over 14 000 of these were received in the
same year while the rest had been carried over from the
previous year. Most of the cases we handle involve
classical maladministration in the form of service failure.
Service failure predominantly involve service delayed, which
includes matters such as business licences, identity
documents, residence permits, RDP houses, refugee documents
and various social grants.
Service failure often involves service denied. This
usually involves contested administrative decisions that
refuse one a service. Examples would again include home
affairs documents, SASSA grants, municipal billing disputes
leading to the suspension of basic municipal services such
as water and electricity. Some time last year I helped a
business person from the Caribbean who had been struggling
for a long time to get an appropriate permit for his family.
When I met him on a plane from Curacao he told me that he
had resolved to disinvest in South Africa and wrap up his
businesses. After he got the necessary permit following my
office’s intervention, he informed me that he and his family
had resolved to retain some of their business interests.
One of the cases my office mediated recently involved both
aspects of service delayed and service denied. The Combined
Chairpersons Committee approached me with a complaint that
the City of Johannesburg was unreasonably delaying the
processing of an application for boom gates. The
complainants also mentioned a few instances where they
alleged that the opportunity to establish gated communities
was declined unreasonably often without reasons being given.
Many South Africans have had their suspended social
grants reinstated, unattended social housing applications
finally processed, identity and other important document
with correct details issued and money owed by government for
services rendered paid with interest. Writing to me after
my office successfully unlocked his life in July this year,
Mr Vinesh Selvan of Centurion in Pretoria, a military
veteran, had the following to say:
“I would like to thank you for the excellent
service you brought to me and all the ex-soldiers with
regards to the Millitary Veterans Bill. I have been
fighting my personal battle since 2002 and since your
appointment; I have seen excellent progress ... Please
note that you are one of the few beacons of hope for
many people like me. Keep up the good work, your efforts
are not in vain and are well appreciated by many people
that you never meet or hear of.”
We also have made a significant impact in the areas of
accountability with regard to control over state resources
and executive ethics. Many of you should be familiar with
the transformational impact my office has had on
accountability in regard to ethical governance as envisaged
in the Executive Ethics Act and Code. You may have also
noted the spotlight we have put on weaknesses in the
government procurement system, particularly in regard to
overpricing and poor quality assurance. These activities
emanate from the office’s mandates regarding conduct failure
which includes corruption. According to the Chairperson of
the Parliamentary Portfolio Committee on Justice and
Constitutional Development, Mr Luwellyn Landers, when the
Public this institution was established shortly after the
dawn of democracy, it was decided that the name Public
Protector was favoured over Ombudsman in order to make this
institution closer and identifiable to the people.
The idea behind the establishment of the Ombudsman
institution was to have a senior public officer to help
balance power between the state and citizens beyond the
traditional checks and balances within democracy while
serving as a buffer that reconciles the two parties.
This would help provide another mechanism to curb
excesses in the exercise of power by those entrusted with
public power and stewardship over public resources over and
above parliaments, courts and tribunals.
However, we have since learned that even in African
culture, institutions similar to the Ombudsman have always
been in existence. One such institution is the Venda
Makhadzi, which have adopted as a model that best describes
our role.
The Makhadzi serves as a buffer between the traditional
ruler and the people by serving as the voice of the people
and ears of the traditional leader. This keeps the
traditional ruler in touch with the views and needs of
citizens thus reconciling the people and the administration.
But the system only works as long as the ruler in question
takes the Makhadzi’s role as the voice of the people and
conscience of the administration seriously. Except under
the EMEA, anyone may lodge a complaint with my office
against any organ of state and the service is free. The
complainant need not be a victim of the alleged improper
conduct or maladministration. It is also important to note
that to investigate, I need not necessarily receive a
complaint.
Basically, my office understands its mandate as involving
righting administrative wrongs of the state by redressing
service and conduct failure.
Our approach to investigations is two-pronged. We strive to
promptly resolve each complaint and redress each upheld
wrong while assisting organs of state to diagnose and
correct systemic administrative deficiencies with a view to
curbing recurring service and conduct failures. The systemic
interventions include helping organs of state review their
internal complaints mechanisms to eliminate the need for my
office’s involvement in complaints handling. My office’s
work is driven by the commitment we have made to the people
of South Africa and Parliament, to be accessible to and
trusted by all persons and communities; provide prompt
remedial action; and promote good governance in all state
affairs. More often than not, people who come into contact
with my office want to know if we really have the power to
have our decisions implemented by the state. They worry if,
like the courts, we can order organs of state to correct
their wrongs. If you look closer, these are very genuine
concerns by the people because people who come to my office
for help come to me as a last resort after exhausting all
available avenues. Therefore, the last thing they want is to
suffer secondary victimisation.
Our customers are also in the main poor people who do not
have the financial muscle to take the state to court.
Neither do they have the time to withstand the lengthy court
procedures and processes. They want a quick solution to
their problems as some of their complaints involve issues of
socio economic rights freedom.
Our view as an office has always been that there is no
way that the drafters of our constitution created this
institution just to add the numbers. This office was
established as an alternative to courts and tribunals.
However, its success weighs heavily on the cooperation of
organs of state. While we do not have powers to issue
orders like a court of law, this does not mean people can
simply tell us where to get off when we direct them to
correct their wrongs. This is because the constitution
explicitly talks about “taking appropriate remedial action.”
Furthermore, the Public Protector Act talks “negotiating”,
conciliating”, “mediating” or using any other means to about
resolve complaints. This gives me discretion to either
“resolve” complaints, “express a view” or “recommend”
corrective action. For some reason, our detractors always
choose to focus on the recommendation, ignoring all these
other provisions when attempting to substantiate why they do
not want to implement our remedial action. I always say
this and I am going to say it again tonight: If organs of
state do not take us seriously enough to make efforts of
understanding our constitutional mandate, we might as well
close shop because they will continue to ignore us thereby
rendering us a gate to nowhere. I must, however, hasten to
put in on record that it not all organs of state that put us
in this awkward position. The truth of the matter is that it
is only a few bad apples that give government a bad name but
we continue to engage them by sitting around the table to
interrogate this discourse.
This is important because communities out there are in
dire need of basic services that are promised in the
Constitution. Some of these services are not reaching them
because some people are abusing their power by spending
public funds selfishly and are lining their pockets and
those of people in their inner circles.
This is in a nutshell what my office does to protect the
public. I am eager to take questions to expand on this and
clarify areas that did not come across clearly. Again, let
me seize this moment to thank the Rotary Club of
Johannesburg for the invitation and laud the Club for the
good work it continues to do. Keep up the good work and
please recruit more business people as I suggested earlier
and may you be blessed with more so that you may do more.
Thank you
Adv TN Madonsela
Public Protector of the Republic of South Africa
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