Address by the Public Protector during a
quarterly media briefing session at the Court Classique
Hotel in Pretoria, Gauteng on Wednesday, September 28, 2011.
Chairperson of the National Press Club, Mr Yusuf
Abrahamjee;
Deputy Chairperson of the National Press Club, Mr Jos Charle;
Members of the Press Club and other media representatives
present;
PPSA CEO Themba Mthethwa;
Members of my team present;
Ladies and gentlemen;
I would like to thank the National Press Club for its
continued interest in the work that my office does.
I wish
to express mine and my team�s gratitude to the members of
the media that are here this morning and the entire media
community at large for their unwavering support. If it
wasn�t for your daily contribution to the work of this
office, many people would still be in the dark about what
exactly is it that we do, where and how to find us. More
importantly, without you, this office would not have been
able to contribute the way it continues to in helping to
strengthen our young constitutional democracy through
exacting accountability from those who exercise public
power. I must, however, express my disappointment at one
national daily for going against my repeated calls on the
media not to publish leaked reports this morning. I am
equally saddened by parties who share confidential
information such as this with the media. I fully support
freedom of the press and the inclusion of the public
interest clause in the Protection of Information Bill but
this publishing of confidential information cannot claim
public interest. This conduct is unethical and influenced
by greed. Would public interest have suffered if the
Business Day had waited for ten more days for the final
report? I would like to call on other media not to report
on that document as the contents thereof remain
confidential. My team and I will consider how we deal with
this matter, which has now become a trend. Today marks
that time of the quarter where I have to report to the
people of South Africa on the work my office has been doing
since our last public accountability event. I particularly
use this platform to inform the public about the latest
reports I have issued. This is in line with Section 182
(5) of the Constitution, which states that any report issued
by the Public Protector must be open to the public unless
there are exceptional circumstances, to be determined in
terms of national legislation, that require a report be kept
confidential. Correctional Services matter
Ladies and gentlemen In March this year, a
distressed and traumatised former public servant, who we
shall call Mr N, knocked on my door. He came to complain
that late in the preceding year he was told by his superior
that the Minister in charge of his department had decided
that his employment be terminated. This was due to the
fact that Mr N was gravely ill and his health condition was
becoming an impediment to his performance of duties as a
Director. He advised that he was given certain options to
consider. Among these was early retirement without the
reduction of pension benefits and an added period of three
and a half years of service, including the payment of a
salary lump sum for that period. Mr N said he accepted
this verbal �package� but never received confirmation of its
terms and conditions in writing. He alleged in October
2010, the department terminated his employment without
following proper procedures and without his acceptance of
conditions of his service termination. He was left in a
desperate financial position as the department did not
adhere to its own undertaking. At the time of writing this
report, Mr N had no medical subsidy from the state and his
entire monthly pension was being spent on medical expenses.
Following a five-month investigation into these allegations,
I found that the process followed by the department to
terminate Mr N�s service did not comply with the
requirements of Section 16(6)(a) of the Public Service Act,
1994. I also found that the process did not comply with
the standard of reasonableness and fairness as required by
Sections 23 and 33 of the Constitution of the Republic as
well as the provisions of the Promotion of Access to Justice
Act. The actions of the department, therefore, amounted to
maladministration. I further found that the process was
procedurally unfair as, contrary to the requirement of law,
the department failed to consult with and reach an agreement
with the complainant on the conditions of the termination of
services, their agreement with the complainant, reasonable
explanation raised with the complainant or condition
approved for such termination by the Senior Management of
the department. The decision to seek the termination of Mr
N�s services on the basis of early retirement instead of
considering the requirements of incapacity due to ill
health, was arbitrary and not in good faith. The actions of
the department were therefore to Mr N�s detriment and
constituted maladministration. I concluded that, as a
result, Mr N suffered prejudice in the form of pecuniary
loss of pension benefits and no post retirement medical
assistance, which is causing severe distress and trauma to
him. The remedial action I directed in terms of Section
182(1)(c) of the Constitution to bring relief to Mr N and
right the administrative wrongs of the state against him had
the following elements:
Mr N was to be re-instated into employment with immediate
effect, backdated to 01 November 2010. I further directed
the department to conduct an investigation into the
incapacity of Mr N due to ill health and the consideration
and processing of ill health retirement of the complainant.
The department was also required to place Mr N on a
temporary incapacity leave until the finalisation of the ill
health retirement. Mr N had to be paid compensation for
financial damages suffered and for the humiliation.
This is one of the reports I am releasing today. It
provides an example of the kind of hope-inspiring deeds we
are capable of when my office and organs of state cooperate
in compliance with our Constitution and the rule of law.
Immediately after the release of the provisional report I
received a letter from Minister Nosiviwe Mapisa-Nqakula
dealing with two things:
- She requested an amendment of the provisional
report on action attributed to her without her side of
the story.
- She accepted the findings and alluded to the National Commisioner�s action plan for implementation with
immediate effect. My team celebrated this case for days.
This is but one of the many cases that highlight our
role in helping the �ordinary person� deal with the
powerful state. Most of such cases, about 95 percent of
the 16 000 to 18 000 cases we deal with each year, do
not result in reports as appropriate dispute resolution
mechanisms are employed to ensure speedy finalisation.
Often this kind of contribution by my office, which is
in line with the constitutional imperative of enforcing
administrative justice, goes unnoticed.
My team is deeply gratified to note that such cases are
gradually finding their place in the media. This helps
my office to reach out and help many other South African
citizens and residents, who like Mr N, are in a state of
distress and trauma, not knowing who to turn to when the
architects of our Constitution deliberately made justice
avenues such as my office available to them.
I often argue that it cannot be that in a country of
nearly 50 million people an office of this nature only
receives a paltry 18 000 cases per annum. It�s not that
I want people to complain against the state but because
we are of the view that many people do not complain
because they are not aware of this office�s existence.
This has been proven time and again when we go out of
our office to pay communities that had never heard of us
a visit as we recently did during our stakeholder
consultation road show termed: �The Public Protector
Dialogues with the Nation.�
After those interactions we returned to our office with
a mixed bag of genuine service and conduct failure
complaints, some of which we have already started
looking into. Some of these complaints came from people
who were not aware that there is an institution such as
the Public Protector.
Chairperson;
I would be making a mistake if I do not commend the
Department of Correctional Services under the
stewardship of Minister Nosiviwe Mapisa-Nqakula and the
National Commissioner Tom Moyane for the exemplary
conduct in response to my findings in pursuit of my
responsibility and Section 182(1)(c) of the
Constitution. One of the key things the Minister said in
her response was that it had not been her intention that
Mr N be penalised by this action or put in a worse
position medically and financially. The Minister further
stated that her intention was not to prejudice Mr N but
to provide him with an exit strategy that would
accommodate his ill health while filling the vacuum he�d
left. This is in line with the promise that underpins
our world acclaimed Constitution, particularly preamble,
founding values and bill of rights therein.
Of course the Minister was entitled to disagree with my
findings. But she had to do so within the system created
by the architects of our constitutional democracy. As I
have said previously, organs of state can�t simply
ignore my report or directives on remedial ation. I have
also said that state law advisors are not review panels
of my decisions and that only a court of law can review
a decision of the Public Protector as in the so called
�Oilgate� matter involving the Mail and Guardian.
Where the Minister disagreed, she duly engaged me and I
integrated her views as I have done with others where
such views had merit.
If a matter has to end up in court, the court would then
have to arrive at a conclusion that my decision was
irrational and that any other Public Protector faced
with a case of the same merits would have arrived at a
different decision.
Failure to implement without at least engaging me or
taking me on review through a court of law is not only
unconstitutional but also a disregard for the rule of
law while rendering my office ineffective against the
provisions of Section 181(3) of the Constitution.
Gugulethu Community Health Center matter
Another story of hope-inspiring response to my office�s
role is that of the Gugulethu Community Health Center in
the Western Cape. My office undertook an own initiative
systemic investigation into allegations of poor service
delivery at the Centre.
This investigation was prompted by allegations of poor
service delivery, undue delays and drunkenness of staff
whilst on duty, among other things, had been expressed
by numerous members of the community, including the
press.
The allegations of poor service delivery against the
above Centre are well founded.
I also found undue delays on the part of the Centre to
provide health services. Such delays violate the rights,
values and principles governed by section 27(1) of the
Constitution, and constitute maladministration.
I found that allegations of use or abuse of alcohol by
staff whilst on duty were substantiated. During an
inspection in loco, confirmation of this during normal
business hours was found. It was observed that the
cleaner smelled of alcohol, had bloodshot eyes, was loud
and rude to patients. It is noteworthy that a certain
witness, Mr H, had also stated that the cleaner was
�problematic�, that numerous complaints against her had
allegedly been lodged with the Management of the Centre,
but no action was taken.
In view of these, I directed that there should be a
system in place to ensure that there is somebody at all
times to assist and / or monitor trauma patients.
The Centre Manager should address the conduct of the
cleaner, who was clearly rude to patients at the Trauma
Unit and exhibited signs of being inebriated on 28
February 2011.
The Centre Manager must immediately introduce management
interventions to prevent any use of alcohol. The Head of
the Department should facilitate surprise inspections to
monitor the situation.
The Head of the Department must monitor the management,
administration and service delivery at the Centre until
all the deficiencies have been addressed.
Jimmy Manyi matter
Ladies and gentlemen;
Also being released today is my report on an
investigation conducted following a complaint against
the then Director-General of the Department of Labour,
who has since been appointed the Chief Executive Officer
of Government Communications and Information System (GCIS)
and cabinet spokesperson, Mr Jimmy Manyi.
The complaints from Adv Paul Hoffman of the Institute
for Accountability in Southern Africa related to
allegations that Mr Manyi had a conflict of interest
between his public duties as the Director-General, CEO
of GCIS and Cabinet Spokesperson; and his private duties
as the President of the Black Management Forum (BFM).
My finding was that Mr Manyi had a conflict of interest
between his personal interests in the BMF and his duty
towards the Department of Labour.
I also found that Minister Membathisi Mdladlana, who was
in charge of that department at the time, failed to
comply with the relevant provisions of the Code of
Conduct and the Rules that required him to manage
effectively the said conflict of interest as the
relevant Executive Authority of the department.
However, on the issue of Mr Manyi�s current position as
the CEO of the GCIS and Cabinet Spokesperson, I found
that a perceived conflict of interest exists between
these positions and his position at the BMF. I concluded
that this may lead to an actual conflict of interest if
not properly and effectively managed by the relevant
Executive Authorities in accordance with the Rules, the
Code of Conduct and the Financial Disclosure Framework.
The remedial action to be taken is that the Minister in
the Presidency must take urgent steps to establish from
the declarations made in terms of the relevant and
applicable legislative and policy framework, the
existence of a conflict of interest and the declaration
thereof.
The Minister needs to ensure that the conflict of
interest is properly and effectively managed in
accordance with the relevant and applicable legislative
and policy framework and the internal conflict of
interest policy of the GCIS.
In this regard the appropriateness of implementing one
of the following measures to address the conflict of
interest must be established:
- Mr Manyi may be required to divest himself of the
private interest;
- Mr Manyi may be excluded from participation in
identified decision making processes;
- A permanent change to some or all of Mr Manyi�s
official responsibilities.
The following investigations were conducted in terms of
the Executive Members� Ethics Act
Nathi Mthethwa matter
Chairperson;
My office also conducted an investigation into
allegations that the Minister of Police, Mr Nathi
Mthethwa, contravened the provisions of the Executive
Members� Ethics Code by spending in excess of R700 00
towards accommodation for himself and unknown guests or
staff at two five star luxury hotels in Cape Town and
Durban.
My findings were that accommodation expenses at Table
Bay and Hilton Hotels indeed came to R734 448. I also
found that the Minister was entitled to accommodation at
state expense in Cape Town when he had to vacate his
official residence during May to July 2009 because of
repairs that were being done to his residence.
There was no evidence indicating that the Minister
influenced accommodation arrangements in a way to have
him and/or his staff put up in the Table Bay or the
Hilton.
I further found that when the Minister became aware of
the irregularities, he instituted an investigation and
once completed the Minister instructed that the
recommendations of the report be implemented.
My specific findings were that the amount spent on the
accommodation of the Minister and his entourage was
unreasonably high. I did not only take into account the
requirements of paragraph 7.2.5 of the Ministerial
Handbook but also that the accommodation expenses should
be reasonable and kept as low as possible.
The lapse of judgment was enabled by the absence of
clear guidelines in the Handbook on what constitutes a
reasonable tariff.
The remedial action I directed was that in the review of
the Ministerial Handbook, the Department of Public
Service and Administration should not only include the
alignment of Chapter 1 with the wording of the Executive
Code of Ethics but also set standards for domestic
accommodation of Ministers.
Consideration should also be given to the publication of
annual or biennial tariffs for ministers similar to
subsistence and travel guides to guide optimal
accommodation.
The process of review of the Handbook should be
expedited to provide clarity on ethical considerations
regarding executive accommodation, particularly in the
current climate of fiscal challenges.
Nomvula Mokonyane matter
I also investigated allegations of a breach of the
Executive Members� Ethics Act against the Premier of
Gauteng, Ms Nomvula Mokonyane. This followed a complaint
received from a Member of the Provincial Legislature, Mr
Jack Bloom in April last year.
Mr Bloom alleged that the denial by Premier Mokonyane of
her office�s involvement in the awarding without tender,
of a R30 million project to beautify the R24 Albertina
Sisulu Highway between the OR Tambo International
Airport and Johannesburg is indicative of possible
unethical behaviour.
In addition, he alleged that there appeared to be
maladministration as the reason cited for awarding the
contract without tender was that of urgency because of
the need to complete it before the 2010 FIFA World Cup,
when documents showed that consideration of the project
was at an advanced stage in June 2009.
I found that indeed the Premier�s Office received and
referred the proposal by Utho Ngathi to the Department
of Roads and Transport;
However, I found no tangible evidence that indicated
that the role of the Premier and her office went beyond
the receipt and referral of the proposal to the
Department of Roads and Transport, and therefore
influenced the adjudication or award of the contract or
tender;
I accordingly concluded that the Premier did not breach
the provisions of the Code and is consequently not
guilty of any unethical behaviour.
Bull killing matter
Ladies and gentlemen
I made observations in relation to the alleged improper
killing of a bull by the Amabutho (Zulu Warriors) at the
Ukweshwama Ceremony held at Enyokeni Royal Palace last
year.
This was after Compassion in World Farming South Africa,
an animal rights group, requested me to investigate and
determine whether the reports that the bull killed at
the annual Ukweshwama Ceremony was subjected to massive
cruelty were true or not.
Compassion in World Farming alleged that the killing of
the bull was not only unconstitutional, but also in
contravention of the provisions of the Animals
Protection Act 71 of 1962.
The group further requested a representative of my
office to attend the Ukweshwama Ceremony and observe the
actual killing of the bull on its own.
After having observed the ceremony I resolved that this
matter would best be handled by the by the Commission
for the Promotion and Protection of the Rights of
Cultural, Religious and Linguistic Communities.
This matter is therefore referred to the Commission for
an appropriate determination. I have requested the
Commission to favour me with a report within a period of
6 months.
These are the few investigations that resulted in
reports in the last three months. As you are aware, we
issue about 40 reports annually, with the rest of the
matters brought to my office settled through ADR.
Chairperson
I am on record explaining to the people of South Africa
that in our investigation reports, we can only tell the
truth as we see it. For us to be able to do so, we have
to find it. Therefore, complainants, the media and all
other interested parties, have a vital role to play in
terms of helping us find this truth.
As I wind down my speech, you will recall that last week
I released a copy of the provisional report on the
investigation into allegations of a breach of the
Executive Members� Ethics Code by the Minister of
Cooperative Governance and Traditional Affairs, Mr
Sicelo Shiceka.
This report was shared with President Jacob Zuma, the
Minister of Finance, Pravin Gordhan and Mr Shiceka. It
was further shared with the complainants yesterday. I am
expecting to hear from the recipients� respective
offices on or before Monday, October 3, 2011. Upon
receipt of comments, I will move swiftly to finalise the
report and release it for public consumption seven or so
days from the return date.
Other reports that are in their final stages include
that of the Midvaal Local Municipality and former
Limpopo MEC for Health and Social Development, Merriam
Segabutla and the Premier of Northern Cape, among
others.
Regarding those that I have just released, I trust that
competent authorities will show leadership and emulate
the Department of Correctional Service in terms of
dealing with my findings and remedial action.
My door remains open for organs of state that take
issues with the content of my reports to engage me so
that we can find a way forward. I can�t emphasise the
importance of implementation of remedial action enough.
In the same vein, I would like to thank those organs of
state that continue to cooperate with my investigations,
complying with my findings and remedial action.
This helps my office live up to the service promise I
have made to the people of South Africa and Parliament.
This promise, which is rooted on our organisational
strategic objectives, is to be accessible to and trusted
by all persons and communities; to provide prompt
remedial action; and to promote good governance in the
conduct of state affairs.
It is this kind of cooperation that will ensure the
ideal of an accountable state that operates with the
highest level of integrity while being responsive to the
needs of its entire citizens and residents.
Let us all do our bit to strengthen and support our
teenage constitutional democracy.
Thank you.
Adv TN Madonsela
Public Protector of the Republic of South Africa
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