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Cases carried forward to January 1998: 3406 3.2 Classification of cases and manner completed
Table 1 The following information should be useful in interpreting the statistics in Table 1: 1) Findings made: These are cases where I investigated and came to a conclusion on the facts, in favour of either the complainant or the institution/department complained against. 2) Advice given or assistance rendered: (a) Where I do have jurisdiction, cases classified under this heading comprise mostly those where this office has been approached prematurely. Complainants are informed of the correct procedures to follow in order to pursue their complaint before approaching me again, should that still be necessary. In appropriate cases (where, for example, the complainant is illiterate) my staff would assist by placing the complainant in contact with the right people. (b) Where I do not possess the necessary jurisdiction, my policy is nevertheless to assist the complainant by advising him or her of the correct procedures to be followed, and of the most suitable person or body to contact. 3) Referred to another body to finalise: This action would be taken only in matters where I feel that another body would be the appropriate authority to approach. Where such a referral does take place, I usually request the recipient body to keep me informed of developments. 4) Expected of complainant to use alternative legal remedies: These are cases where a court of law would be a more suitable forum or where the complainant is already pursuing the matter in the courts. 5) No further action taken: These are cases where -
Some of the more common types of complaints referred to the office of the Public Protector include the following: -
In order to provide an insight into the type of complaints dealt with during the current period, included below are a selection of significant complaints received and finalized which are illustrative of some of the functions and responsibilities of the office of the Public Protector. Case number: 1432/96 In a rather unusual matter, the Minister of Safety and Security, Mr F S Mufamadi MP, approached me with a request that he investigate a number of case dockets relating to the Hard Living Gang, the late Rashaad Staggie and other alleged gang members operating on the Cape Flats. More particularly, the Minister wished me to investigate and report on the manner in which investigations into and charges against these persons had been managed by the South African Police Service. In terms of section 7(3) of the Public Protector Act, No 23 of 1994, the Public Protector may request any person to assist him in the conduct of any investigation. This provision enables the Public Protector to access and acquire the services of persons with particular knowledge and expertise in the employ of the State and to utilize their skills in the course of an investigation requiring such abilities. In this instance, the Minister agreed to make available to my office a South African Police Service Captain, who proved to be most professional, thorough and helpful in conducting the requested investigation and reporting his findings to myself. The investigation under the auspices of my office found that investigation by the Police of the cases concerned was generally of a very poor standard. The investigating officers in most cases unnecessarily delayed investigations, which caused complainants and witnesses to lose interest. It was also found that most of the investigating officers concerned were inexperienced and that they clearly had not taken much interest in the investigation of the matters under consideration. It was also found that the exhibits in most cases had not been officially dealt with as many were simply not handed in or sent for examination. In several cases, the direct instructions of the public prosecutor that were written in the case dockets were ignored without any explanation. The guidance given by prosecutors had, in most cases, not been followed. It was also obvious that the investigation officers concerned did not seriously attempt to trace witnesses and that the Branch Commanders and the supervisors of these officers failed to assist or direct them, contrary to what one would be entitled to expect. The consequence of this pattern of behaviour was that, in many instances, cases had to be withdrawn by the prosecutors as they could not be indefinitely postponed. As most of the cases concerned were gangster-related matters, it was further found to be rather peculiar that these cases were not referred to the Gangster Investigation Unit, as the latter specialises in dealing with matters of this kind and consists of trained and experienced officers. From the investigation it also became clear that justice could neither be done nor seen to be done as many witnesses had been intimidated. In some cases the complainants had withdrawn their complaints, most likely as a result of intimidation. No attempt had been made to protect any of the complainants or witnesses. Most of the people involved were terrified of the gangsters and would not dare lodge a complaint against members of in particular, the Hard Living Gang. Those who have had the courage to lodge complaints with the Police have usually been intimidated and, in some cases, even assaulted or murdered. The overall picture was of a disturbing lack of professionalism or even due diligence and care exhibited by the particular police officers. The absence of committed, proper and specialised investigation into complaints pertaining to the Staggies� Hard Living Gang had led, in most cases, to the culprits not being prosecuted successfully, where they were prosecuted at all. I recommended that serious consideration be given to taking disciplinary steps against the investigating officers concerned. Consideration should also be given to ensuring that gangster-related matters are investigated only by members of the specialised unit. Urgent attention should also be given to improving the protection of witnesses and to more effectively opposing bail in serious matters. The investigation also encompassed the disappearance of case dockets from the Magistrate�s office at Mitchell�s Plain. The investigation found that relatively simple solutions were available, such as:
In several instances it appeared that court officials and policemen were the prime suspects, and I regard the suggested measures to assist prosecutors in securing control of dockets to be a priority. Case number: 0783/96 Complainant in this case was employed by the Department of Justice: KwaZulu Government, as an Administration Clerk from 23 October 1979 until he was dismissed on 16 November 1990. Whilst in the employ of the Department of Justice, Complainant successfully applied for a housing subsidy. On termination of service, an amount of R16 000 � representing his pension benefits � was paid out to him. This left him with the impression that part of his pension benefits had been paid over to his bond holder. He was surprised later to receive summons evicting him from the property. He then approached me for assistance. I pursued this matter first with the Department of Finance: Pensions Administration, where it was discovered that the actual amount paid to Complainant was R11 890-71 and not R16 000 as claimed by him. The matter was then pursued with the Department of Justice, where it became clear that this amount had not been recorded in the Department�s remittance register. Enquiries revealed that Complainant had used the Department�s address as his postal address and that his cheque may have been posted to him directly per address of his employer. Further enquiries revealed that the cheque in question was either cashed at or deposited with the Pinetown Branch of First National Bank. The number written on the back of the cheque was the account number of the savings account which Complainant had opened either on the day the cheque was deposited or encashed on 5 February 1991. Information available to myself was that this account was last maintained on 5 February 1991 prior to its closure on 30 September 1995. Letters setting out the evidence of his apparent attempts to use my office to defraud the State were sent to Complainant for his comments, but none attracted a response. Case number 1474/96 Complainant was employed as a teacher when he requested the assistance of my office. A dispute concerning incorrect examination results and the ensuing delay in resolving the matter was prejudicing him improperly as he was facing dismissal due to his failure to submit his graduation certificate. Complainant had been a student teacher at Elijah Mango College of Education in Mpumalanga Province. He wrote his final examination in October 1995. However, when he received his results, they indicated that he had been absent when the subject Education was written. According to both Complainant and his lecturer, he had written the said paper. He raised the matter with the College, which promised to intervene. When nothing was done by the College, he raised the matter with the Department of Education, Pretoria. The latter informed him that he had passed the subject and sent him back to the College to collect his diploma certificate. On his return to the College and contrary to the Department�s advice he was informed by the College that he had to rewrite the subject as he had been absent from the examination. Complainant duly wrote the paper twice � in October 1995 and in March 1990. He then approached me for assistance. Enquiries were initiated with the Mpumalanga Department of Education in Middelburg, and it appeared that Complainant had indeed passed the subject. It was explained to them that the College did not have the correct results. The Department advised that they had conveyed the correct results to the College. When Complainant again went to the College, he was once again informed differently. I then requested the Department to retransmit the correct results to the College. He further approached the Rector of the College and suggested that he communicate directly with the Department in Middelburg concerning this issue. The correct results were then provided to the College and the matter was resolved. Case number: 0773/96 The issue raised in this case was that the Department of Finance declined complainant�s offer to �buy back� a period of service prior to 1 April 1997. Complainant was employed as a teacher from 1 January 1952 until 30 June 1994 under various education departments of the Republic of South Africa responsible for the education of black people. Thirteen years of this period were served under the former Bophuthatswana Department of Education. She was transferred to the former Bophuthatswana on 1 April 1974, and re-transferred to South Africa on 28 February 1987 with full accrued benefits on both occasions. Pension benefits received by the complainant were for the period 1 April 1967 to 31 July 1994 and the leave gratuity received was that accumulated only in the last 7 years of service. I pursued this matter with the Department of Finance: Pensions Administration, and the following information came to light: During the period from 1 January 1952 to 31 March 1967, the complainant did not contribute to any pension fund. From 1 April 1967, she contributed to the non-white Employees Pension Fund. She later contributed to the Temporary Pension Fund. In 1993, the complainant was admitted to the Government Pension Fund governed by the Government Service Pension Fund Act, No 57 of 1973. The period from April 1967 to July 1994 was not in issue. The request made by Complainant was that the period prior to April 1967 be recognised as pensionable service. She relied on the provisions of Regulation 6 (1) and 7(1) of the regulations made under the Government Service Pension Fund Act. Regulation 6(1) expressly refers to a period of service immediately prior to the date on which an employee became a member of the Fund in respect of which the employee did not contribute to any other fund. The period from 1 January 1952 to 31 March 1967 was obviously not a period immediately before 1993, when the complainant was admitted to the Government Pension Fund. Regulation 6(1) was therefore not applicable to the complainant. I could not find any other regulation or law which might produce the result desired by Complainant. Regulation 7(1) applies �in respect of pensionable service which is reckoned as pensionable service in terms of regulation 6(1)�. Since Complainant did not qualify for recognition under regulation 6(1), regulation 7(1) did not come into the picture. In the result, I was of the opinion that complainant had not been unfairly prejudiced. Case number: 1565/96 During 1993 a lease agreement was concluded between the erstwhile Department of Works, Transvaal Provincial Administration, and Complainant. In terms of that agreement, the Department of Works hired premises, situated at Warmbaths, from him. The contract extended over a period of three years ending on 29 February 1996. The premises were then to be taken over by the Department of Health. Paragraph 3 of the lease agreement provided that if the lease were not renewed after the expiry of the original period, the lessee would have the right to continue occupying the premises under the lease agreement, subject to three calendar months� notice of termination by either party. The monthly rental would be R1790-00 excluding VAT and would escalate by 10 % annually. Based on the escalation of 10 % per annum, the rental including VAT amounted to R2 716-04 as from March 1996 onwards. According to Complainant, however, a new rental was agreed at R2 850-00 per month including VAT. This agreed rental was supported by correspondence between the Finance Directorate: Public Works and the Director: Building and Property Administration. Although the lessee did not renew the lease at the expiry thereof, it continued to occupy the premises. As a result of this continued occupation, paragraph 3 of the lease agreement came into operation. At that stage, therefore, the lease could be terminated only by either party giving the other three calendar months� notice of termination. Complainant had received and furnished me with an undated notice of termination and an envelope with a postmark dated 5 May 1997. He therefore felt that the lease could be terminated only three calendar months after that date. According to the Legal Advisor to the Department of Public Works, the notice was written on 22 January 1997 purporting to terminate the lease on 1 March 1997. This clearly did not amount to three months� notice. The Department�s Legal Advisor also did not furnish any proof of posting. He argued that the notice of termination could not have been written in May 1997 because the writer thereof had left the Department in April 1997. This argument did not, however, disprove the fact that the notice was posted in May 1997. In the circumstances, the balance of probabilities favoured Complainant�s version that the notice was indeed posted on 5 May 1997. I was therefore of the view that the lease could be terminated only three calendar months� after May 1997, namely at the end of August 1997. As a result, the Department was liable for rental at the agreed rate until the end of August 1997. I indicated to the Department that unless they produced evidence controverting the above, I would recommend that Complainant be paid the rental due until the end of August 1997. The Department failed to produce such proof and I duly issued my recommendation. The Department in turn forwarded the recommendation to the State Attorney for his opinion and the latter concurred with me. Case number: 0028/96 Background On 1 January 1996 there was a serious outbreak of violence at the Barberton Prison. Five prisoners were killed and 17 sustained injuries as a result of the incident. The incident was reported to the South African Police Service and police investigations pertaining to the matter and related issues followed. I visited the Barberton Prison on 9 January 1997 and heard evidence from the Provincial Commissioner of Correctional Services: Mpumalanga, the Commander of the Barberton Prison, the Acting Head of the Maximum Security Prison, six injured prisoners and a delegation of 24 prisoners. The following issues were also raised by myself and were discussed at length:
Report by the Department of Correctional Services Following my visit, the Provincial Commissioner of Correctional Services: Mpumalanga was requested to submit a comprehensive and detailed report on the incident, in particular with regard to the following:
In response, the Commissioner: CDC Functional Services provided me with his comment and a copy of a comprehensive report on the departmental investigation conducted by senior officers of the Department of Correctional Services together with, inter alia, 109 affidavits of officers of the Department of Correctional Services and prisoners. From the report on the departmental investigation and affidavits the following appeared:
With regard to the conduct of staff at the Barberton Prison, the following was found:
Further matters of concern pointed out in the report were as follows:
The comment provided by the Commissioner: CDC Functional Services can be summarized as follows: On 1 January 1996, during the morning, there were already warning signs that violence could erupt. Apparently the officer in charge of the section where the fighting started was negotiating with gang leaders in order to neutralize the situation. Whilst negotiations were being conducted, members of gangs gathered in groups in the courtyard. Certain prisoners were allegedly afraid and requested to be locked up in their cells. In this regard, the Commissioner submitted that the officers on duty should have foreseen these warning signs. He informed me that the necessary disciplinary action was being taken against the officers concerned. The Commissioner further commented that there was a shortage of officers on duty at the time of the incident. Apparently, 104 officers were booked, but only 74 reported for duty. The Commissioner advised that, in order to avoid similar incidents in future, the Commander had been instructed to implement the following:
Conclusion I was satisfied that the incident had been investigated thoroughly and that the Department of Correctional Services had afforded its full co-operation in this regard. Although a gang culture in prisons has proven to be an intractable problem and a long-term solution appears not to be attainable, I was concerned that everything possible was not being done to prevent violence at the Barberton Prison. I appreciated the fact that, given the available accommodation, it was difficult to separate gangs. However, other steps could and should be taken to avoid similar incidents in future. I considered the recommendations and action plans submitted by the Department of Correctional Services in this regard and have recently made enquiries whether they have been implemented. I also enquired what progress had been made in the police investigations. The response of the Department of Correctional Services is being awaited. Case number: 0858/96 Complainant entered into a housing loan agreement with the Qwa-Qwa Development Corporation. The corporation undertook to take out a life insurance policy on his behalf to cover the debt in the event of any misfortune. Complainant contended, however, that he had neither signed any insurance proposal form nor received any correspondence from the insurance company wherein the latter acknowledged such cover. Complainant was subsequently incapacitated and became unable to pay his loan. Complainant expected the insurance company to settle his outstanding balance on the loan. A warrant of execution was even issued for the attachment of his property. It was at this point that the complainant came to me and the matter was queried with the Development Corporation. Arising from this intervention, the Corporation decided to write off Complainant�s debt, having identified an unnoticed ambiguity relating to the disability insurance. The complaint was accordingly resolved to Complainant�s satisfaction. Case number: 1290/96 Complainant had a problem with obtaining his cheque for Unemployment Insurance Fund benefits. He was entitled to benefits and a cheque was issued, but it never reached him. He tried on several occasions to take up the matter with UIF, but without success. He then approached the Unibo Law Clinic for assistance in securing the cheque, but they too were unsuccessful. The Law Clinic then referred the matter to me. My office raised the matter with the relevant authorities and, after some time, they indicated that a cheque had been issued but had been sent to an address supplied by Complainant but which apparently no longer existed. As the first cheque had not been encashed, the Fund agreed to issue a replacement cheque that was to be sent to Complainant, care of Unibo Law Clinic. Case number: 1654/96 Complainant was an employee of the North-West Department of Health. She was involved with the inspection of private hospitals on behalf of the national Health Department as the provincial department did not have a section dealing with that issue. In this capacity, Complainant was requested to inspect Takalani Maternity Home near Stilfontein. She inspected the Clinic on 15 August 1995 and on 26 June 1996 and found that the conditions there were appealing. She consequently recommended to the national Health Department that the Clinic be closed as it inter alia posed a major risk to the mothers and babies receiving treatment there. On 2 July 1996 the national Health Department confirmed the recommendation that the Clinic should be closed. However, the clinic continued to operate until Complainant raised the matter with myself. I raised the matter with the national Department of Health and the Clinic was duly closed. Case number: 1915/96 This particular complaint was from attorneys who were encountering difficulties in obtaining an inquest record for purposes of assisting their client with a civil claim. They had written to the relevant authorities but had achieved no positive outcome despite their numerous requests. The attorneys eventually decided to approach me for assistance and the complaint was drawn to the attention of the police and, within a short while the attorneys wrote to advise that they had received the records that they had sought. The police later wrote to me to confirm the satisfactory resolution of the matter. Case number: 0886/97 Complainant, a prisoner at Umtata, wrote to us for assistance in this unsuccessful efforts to secure a transfer to Pietermaritzburg Prison. The matter was raised with the Provincial Commissioner for the Eastern Cape, sufficiently grounds justifying such a move were found to be present and the complainant�s request was acceded to and his transfer effected. Case number: 3171/97 In an application for the payment of an overdue and desperately-needed pension, an investigator in my office experienced service from a senior official of the Department of Finance: Pensions Administration which went significantly beyond the call of duty. The official concerned had, unbeknown to the investigator, been off work for a serious operation. By coincidence, the investigator spoke to her on the day of her return from sick leave when the investigator telephoned in order to urgently ascertain the status of the pension application complained about. During that day, the official was again sent home because she had not quite recovered from her operation. However, the official concerned had taken the file home with her and telephone the investigator from her sick-bed with the necessary details. Case number: 2137/97 Mr X approached my office during August 1997 concerning a protracted difficulty he had been experiencing with his telephone service. He complained that his telephone service had been interrupted intermittently since September 1996, but that Telkom had persisted in billing him in respect of rentals, calls and reconnection fees during periods when the telephone had not been functioning. Despite numerous queries and complaints addressed to Telkom, the problem remained unresolved. My office took the matter up with the Manager: Customer Care at Telkom. After investigation, it was found that the service had indeed been interrupted as a result of numerous incidents of cable theft. Inadequate customer service procedures had added to Complainant�s frustration. Telkom decided to credit Complainant�s account with the charges in respect of rental, metered calls and reconnection fees for the periods when the service was interrupted. A follow-up meeting was held between Telkom and Complainant, during which he confirmed that he was satisfied with the outcome. Case number: 0489/97 Complainant, an attorney, was instructed by the Office of the State Attorney, Mmabatho, now falling under the North West Province, to represent their clients in a criminal matter held at Mogwase Magistrate�s Court. Complainant claimed R3 090-00 for services rendered. A cheque was issued and posted by the State Attorney to Complainant. These events took place in 1994, during the period in which there were postal disruptions due to strikes in the North West Province. As a result, the cheque was delayed in transit and had already expired when it reached Complainant. Complainant reported this to the State Attorney and he was requested to send the cheque back in order to have a replacement issued. Complainant averred that he sent the cheque back on 29 November 1994, but no replacement cheque had been issued to him as at 17 February 1997 when he complained to my office. The matter was pursued with the Office of the State Attorney. They claimed to have been unable to issue another cheque as Complainant had not sent them the original cheque but only a copy thereof. I requested them to enquire from the Department of Finance whether or not the cheque had been cashed and, if not, to issue another cheque to Complainant. It was indeed found that the cheque had not been cashed and a substitute was subsequently issue to Complainant. Case number: 510/97 Mrs X approached me with a complaint that, for a period of ten months, she had been remunerated on a scale lower than that to which she was entitled. She had sought to resolve the matter with her employer, the Department of Agriculture, Kwazulu/Natal, but without success. I investigated the matter and found that Complainant had indeed been underpaid for the specified period. The necessary adjustment was made and payment of her salary arrears was made. Case number: 407/97 Concerned residents approached my office regarding the award of a liquor licence without the necessary statutory notice having been given. The applicant for the liquor license contended that it had followed the correct procedures for the giving of notice of its intention to apply for such a licence. It appeared, however, that while the applicant had indeed complied with the requirements for the giving of notice, it had done so in the incorrect magisterial district. The shopping centre in which the proposed liquor store was situated fell within the jurisdictional area of a different district to that where the notice had been given. The unfortunate and unforeseen consequence of this oversight was that the potentially affected residents had in fact not been afforded due notice of the intention to apply for a liquor license. Nor had they, therefore, enjoyed the opportunity � as was their right � to lodge timeous objections to the proposed application. I found that the licence had been incorrectly awarded, with the consequence that the affected residents had been improperly prejudiced. I recommended that the licence be withdrawn and that due and proper notice be given in the correct magisterial district. Case number: 1559/97 Introduction The Pharmaceutical Manufacturers� Association of South Africa (PMA) submitted a complaint to me requesting an investigation into the conduct of certain officials of the Department of Health from whom certain allegedly �offending statements� against the Pharmaceutical Manufacturers� Association had emanated. The PMA maintained that the making of these statements by the Department had been improper in �that it failed to comply with accepted standards for public administration, more particularly, but not exclusively in that it failed to meet the basic values and principles governing public administration as set out in Section 195(1) of the Constitution which, inter alia, provides that: �Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles: The A high standard of professional ethics must be promoted and maintained. The Transparency must be fostered by providing the public with timely, accessible and accurate information.� � The �offending statements� consisted of the following:
�South Africa (is) rated in the top five most expensive countries in the world for medicine.�
�Some medicines sell in South Africa for up to 4000 % above the world average.�
�South Africa pays, for example, 2500 % more for ani-tapeworm preparations � than the international norm.�
�Medicine costs � have increased at double the inflation rate over the past 10 years.�
�Prescription of generic medicine in South Africa, at 16 %, lagged behind that in countries like the United States at 48 %, and Britain, at 54 %.� The PMA was of the opinion that the making of these offending statements had created a perception in the minds of the general public that medicines in South Africa were unreasonably expensive and moreover that the blame for such expensive medicines lay with the manufacturing and primary importing companies. This they felt had resulted in impropriety or prejudice to members of the PMA, and they also maintained that they were further threatened to be prejudiced or to be subject to impropriety in that certain legislative measures were proposed by the Minister of Health which, if implemented, would materially detrimentally affect the business of members of the PMA, and as a result also the livelihoods of thousands of their employees. The PMA suggested that the proposed legislative measures (Medicines and Related Substances Control Amendment Bill [B721071] were being introduced by the Minister on the incorrect and inaccurate premise that medicine prices were unreasonably high compared to world prices. It was further submitted by the PMA that some of the proposed measures by the Minister of Health were likely to result in potential prejudice to the public at large. I was then requested by the PMA to investigate the conduct of the responsible officials involved in the compilation, formulation, dissemination and/or making of the offending statements and to establish whether such conduct was indeed improper or likely to result in any impropriety or prejudice to members of the PMA or others and to report thereon. Background After studying the extensive complaint documentation submitted by the PMA, it was decided to commence the investigation by writing to the Minister of Health, Dr N C D Zuma, informing her of the complaint received and requesting her to comment on the allegations made. After submitting the complaint to the Minister of Health, it was felt necessary to appoint, in terms of section 7(3)(b) of the Public Protector Act 1994, certain independent experts in the field of medicine and, more particularly, pharmacology, to assist in the investigation with their specialist knowledge and experience. They were: Prof J V Van der Merwe, emeritus-dean of the University of Pretoria, currently Director Professional Affairs, Healthcare Management Services (HMS); Dr L Walters, Clinical Director, Pharmaceutical Benefit Management and Professor of Pharmacology, University of Cape Town; Dr J R Cowlin, Managing Director, Pharmaceutical Benefit Management; and Prof K P Mokhobo, Head of Medicine, MEDUNSA. In assessing the complaint, it was important to understand the role of both the Pharmaceutical Industry and the Department of Health in the health industry in South Africa today. Cognisance also had to be taken of the difference between the private and public healthcare markets. The Department of Health Section 27(1) of the Constitution reads: �Everyone has the right to have access to � (a) health care services, including reproductive health care; ��.
Measures introduced by the Minister of Health should thus be seen against this background. The Pharmaceutical Manufacturers� Association The PMA is an Association incorporated under Section 21 of the Companies Act, 1973 whose membership comprises mainly bodies corporate carrying on business in the Republic of South Africa as manufacturers of primary importers of medicines which are promoted mainly to the medical, dental nursing and pharmaceutical professions. According to the PMA, they are responsible for about 90 % of the value of sales of pharmaceutical products by manufacturers and primary importers of medicines in South Africa. The pharmaceutical industry has played a significant role in combating and preventing disease and ailments. It can even be said that breakthroughs by the pharmaceutical industry, for instance anti-infective agents, anti-hypertensive drugs, etc, made a significant difference to the well-being and survival of millions of people, nationally and internationally. Furthermore, research and breakthroughs were still at the order of the day, occurring at regular intervals with beneficial effects to the health of the population. The pharmaceutical industry also makes a significant contribution to stimulate and financially support research, not only at universities and academic hospitals but also in the private sector. Price Discrimination In South Africa, two distinctly separate markets for pharmaceuticals exist, namely the private healthcare market and the public market. In the public market, pharmaceuticals are purchased in the COMED (the public sector co-ordinating body for procurement) system in bulk. Pharmaceutical manufacturers, like sellers of any product to two different market segments with differing price sensitivities, accordingly price more highly in the less price sensitive sector (private market), and at a lower level in the more price sensitive sector (public market). This is sometimes referred to as spontaneous price discrimination. The state purchases nearly 80 % of all prescription medicines (by volume) although in terms of value (rands and cents) this is approximately 34 % of the national pharmaceutical market. Evaluation of the Offending Statements
�South Africa (is) rated in the top five most expensive countries in the world for medicine.� It was not possible to say that the Minister of Health was able or unable to prove or substantiate the statement. Nevertheless, from the evidence presented, it could be deduced that pharmaceutical profits are substantial in this country; that the cost and price of pharmaceuticals in South Africa is high; and the amount spent on medicine is nearly double to triple that of other major countries.
�Some medicines sell in South Africa for up to 4000 % above
the world average� The 4000 % by which South African medicines were allegedly more expensive than the world average was, by the Minister�s own admission, based on an erroneous calculation. The Department conceded that, on re-calculation, it was 2515 %. From the evidence presented, it appeared that Offending Statement II was based on the price difference of one drug and that the price differential in the particular instance could not be generalised to the range of products� available to the two markets in South Africa. It was, therefore, quite clear that the information disseminated had been grossly exaggerated.
�South Africa pays, for example, 2500 % more for anti-tapeworm preparations � than the international norm.� On the facts, this statement was found, once again, to have been based on the price paid by one charity organisation for one product. This single � and exceptional � instance could not be said to constitute an �international norm�. As, however, this statement had been made in the presence only of officials of the Department, it could not be said to have been improper, although it was misleading.
�Medicine costs have increased at double the inflation rate over the past 10 years.� The evidence as offered by the PMA referred to manufacturers� prices. The newspaper editorial from which the quotation was quoted stated that pharmaceutical manufacturers �offer no solution to spiralling medicine costs which, some estimate, have increased at double the inflation rate over the past 10 years.� No evidence was submitted to implicate any official of the Department and therefore no blame could be apportioned to the Department.
�Prescription of generic medicine in South Africa, at present, lagged behind that in countries like the United States, at 48 %, and Britain at 54 %.� In the offending statement the percentage figures were not comparable because:
The figures used by the Minister were not accompanied by any proof. Could it be accepted that although generic prescribing takes place, for example in the UK, generic dispensing necessarily follows suit? It was, furthermore, difficult to compare the equivalents in the generics markets internationally. If one were to compare value share, South Africa seemed not to lag significantly behind countries such as the UK, the USA and Germany. In conclusion, the information contained in offending statement V, while possibly misleading, was not found to be improper. Conclusion The Pharmaceutical Manufacturers� Association was found to be correct in expecting from the Minister of Health to provide the public with �� timely, accessible and accurate information� as prescribed by Section 195(1) of the Constitution. It could also validly be expected that someone appointed in the position of National Minister of Health should ensure that a high standard of professional ethics be promoted and maintained in the administration of her Department. It was evident from the investigation that the information supplied by the Department of Health on the issues relating to the prices of medicines and utilisation of generic medicines in South Africa was, on the Minister�s own admission sometimes not as accurate as could be expected. However, cognisance should also be taken of section 16(1) of the Constitution, which referred to freedom of expression and, more specifically, stated: �Everyone has the right to freedom of expression, which includes � (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; � (d) academic freedom and freedom of scientific research.� A sizeable �clash� between the Minister of Health and her Department on the one hand and the PMA on the other hand, had taken place over a period of a few months. A major portion of this was expressed in public, in the media. It was found to be crucial to appreciate the real necessity for free speech in order to engage in any weighing-up process. The right to free speech could be described as the �indispensable condition of nearly every other form of freedom.� Voltaire�s ubiquitous �I do not believe a word that you say, but will defend with my life your right to say it� reinforces this notion that free speech is basic human existence. In the democratic society in which we live, it is part of the democratic process to express opinions in order to highlight problem areas or aspects that different parties do not agree upon. These ideas might be expressed in the media. As part of discussions leading up to legislation being promulgated by Parliament, issues could also be discussed (as was the case in this specific matter) at the public hearings of the Portfolio Committee of the Department of Health. The primary purpose of freedom of speech was to guarantee and enhance the democratic process. It allows the individual to discuss and debate the merits or otherwise of government activities. This debate about the prices of medicines and utilisation of generic medicines was not new or unique to South Africa. In the 1997 Datamonitor publication �Management Briefings: Generics�, it was stated �however, generic substitution is subject to strong opposition by the Australian Pharmaceutical Manufacturers Association� and �it has even been claimed that manufacturers have propagated myths implying that generic brands are less effective and even un-safe�. Both of these statements were also part of the debate in South Africa. Similar debates take place all over the world. Such debates do not only form an intrinsic part of the democratic process, they also ensure that inaccuracies are eliminated for the benefit of all. Because healthcare becomes unaffordable, the health industry in this country, be it in the public or private sector, needs to be addressed. The Minister and the Department, being responsible for the formulation of health policy, has an obligation to fulfil in this regard. The Department should, however, endeavour to use correct data in making statements. This principle pertains not only to offending statements 1,2 and 5, but to all public statements, given the special role that the Department has to play in a very crucial area namely, the health of the South African nation. The staff compliment of this office is as follows: The Public Protector 1 Assistant to the Public Protector 12 Senior Legal Administration Officers 1 Assistant Director 2 Senior Administration Clerks 1 Senior Registration Clerk 3 Senior Typists 3 Senior Secretaries 1 Messenger The total budget for the 1997/1998 financial year was R6 827 000.
1) Conference and Workshops hosted by the Public Protector A Pan-Commonwealth seminar on the subject �Democratic Structures in Public Service Improvement� was hosted by my office from 23 � 25 April 1997 at the Glenburn Lodge, Pretoria. The seminar was entirely sponsored by the Commonwealth Secretariat Fund for Technical Co-operation (CFTC), London. The seminar, which was attended by 45 delegates from 22 countries, was officially opened by the then Premier of Gauteng Province, Mr Tokyo Sexwale. The participants in the seminar represented mostly oversight agencies in different countries operating on behalf of the people and independently of government. These agencies bear an onerous responsibility that requires high standards of integrity, courage, credibility and understanding of the people�s expectations in a democracy. The seminar was extremely successful and beneficial relationships were established with oversight structures in other countries. 2) Production of Video on the Office of the Public Protector The Commonwealth Secretariat, through the office of Dr Victor o Ayeni of the Management and Training Services Division, contracted Kagiso Educational Television to produce a video for the Commonwealth seminar on Democratic Structures in Public Service Improvement. The video is approximately 15 minutes in duration and, in a light-hearted and entertaining manner, dramatises the work and functioning of the Public Protector�s office. While the style and content of the video were determined by my office, production costs were entirely covered by the Commonwealth Secretariat. The video �premiered� at the Commonwealth seminar and was very favourably received. It has since also received television coverage and, as a result thereof, many new complainants have approached the office. The video is used extensively for educational purposes and it continues to elicit a positive response. 3) Conferences and Workshops attended by representatives of the office
4) Delegations received by the office of the Public Protector
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