Investigation Reports

REPORT IN TERMS OF SECTION 8(2) OF
THE PUBLIC PROTECTOR ACT 23 OF 1994 REPORT NO 4

(FIRST HALF-YEARLY REPORT 1996)
PERIOD 1 OCTOBER 1995 TO 30 JUNE 1996

PUBLIC PROTECTOR
REPUBLIC OF SOUTH AFRICA

Madam Speaker and Honourable Members of Parliament

I have the honour to submit to you in terms of Section 8(2) of the Public Protector Act 23 of 1994 my first half-yearly report for the period 30 October 1995 to 30 June 1996

S A M Baqwa

Public Protector of the
Republic of South Africa
14 February 1997

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TABLE OF CONTENTS

INFORMATION ON THE OFFICE OF THE PUBLIC PROTECTOR

Introduction
The Public Protector s role and mission
Overview
Statistical overview
Nature of complaints received and specific complaints
Establishment
Financing of the office
Provincial Public Protectors
Public Relations
Conclusion

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INFORMATION ON THE OFFICE OF THE PUBLIC PROTECTOR

Definition

The Public Protector is an official who is independent of government and any political party. He is appointed by Parliament in terms of the Constitution. He receives complaints From aggrieved persons against government, government departments, government agencies and government officials. He has powers to investigate matters referred to him, recommend corrective action and issue reports to Parliament. The office is established under Chapter 9 of the Constitution of the Republic of South Africa Act 108 of 1996. The operational requirements of the office are provided for under the Public Protector Act 23 of 1994.

The Public Protector is appointed by the President subsequent to the approval by Parliament of a candidate nominated by a joint committee of Parliament.

The Office of the Public Protector was established on 1 October 1995. Previously, the office was known as the Office of the Ombudsman which was established on 22 November 1991. The latter office evolved from the Office of the Advocate-General, which was established on 18 July 1979. The Constitution provides that the Public Protector shall be a South African citizen who is a fit and proper person to hold such office.

Jurisdiction

Section 182 of the Constitution provides that the Public Protector shall have the power to investigate any conduct in state affairs, or in the public administration in any sphere of government.

Nature of complaints

Any person or institution may complain to the Public Protector.

The Public Protector may investigate any allegation or suspicion of improper conduct, or conduct resulting in any impropriety or prejudice.

Powers

The Public Protector is competent to:

1. Direct any person to appear before him to give evidence or to produce any document in his or her possession or under his or her control which, in the opinion of the Public Protector, has a bearing on the matter being investigated and may examine such person for that purpose;
2. Enter, or authorise another person to enter any building or premises and there to make such an investigation or enquiry as he or she may deem necessary, and seize anything on those premises which in his or her opinion has a bearing on the purpose of the investigation;
3. Report on his or her findings; and
4. Take appropriate remedial action.

REPORT

1. Introduction

1.1 I took up office as Public Protector on l October 1995. I include my report for the three months that I served as Public Protector for 1995 in this report, being my first half-yearly report for 1996. This report does not seek to give a comprehensive account of all activities of my office, but is a useful overview of the first half year of the existence of my office.

2. The Public Protector's role and mission 2. l When I formally took up office on I October 1995 I had no illusions about what a daunting task I had been landed with upon my appointment as the Public Protector of the Republic of South Africa. This was not made easy by the fact that I had only a staff compliment of 8 persons inherited from my predecessor, Mr Justice Van der Walt. The good thing was that though the appellation "Public Protector" was a new and imaginative invention of the South African Legislature, I was not starting the office from scratch.

2.2 One thing that became clear to me was that to be an effective Public Protector did not simply mean being a receptacle of complaints and processing them on a piecemeal basis. It became clear that to be an effective Public Protector meant being knowledgeable about the realities being faced both by the public and the public service, and making practical recommendations which can realistically be implemented. It also means being sensitive to the magnitude of the challenge faced by public servants who are struggling to meet what they see as increasing service expectations of their clientele with rapidly decreasing or reconfigured resources.

2.3 This meant that in our communications strategy we had to emphasise this duality of purpose, this need to be seen not only as "protecting" the public from an "errant" public service but more as a referee who looks at all sides of the problem before recommending a solution.

2.4 I had indeed hoped to propagate this perspective in a quiet but purposeful manner. This was not to be because no sooner had I embarked on the communications strategy than I was thrust into the "Sarafina" limelight. Without reverting to the details of that saga I do hope and believe that there were some good lessons that came out of it. Those lessons were not only about how citizens can be seen to hold public servants accountable for any maladministration but also how the office operates as an instrument to enforce such accountability. The notion that the right of the public to hold public servants accountable for any unfairness in the provision of governmental services as one of the hallmarks of democracy, was thus being brought to the fore in a visible manner.

2.5 Our mission is accordingly not only to receive complaints, investigate and recommend corrective action but also to improve public administration and improve fairness in the provision of governmental services.

2.6 Our objectives are:

1. to facilitate access to our office by the community;
2. to seek equitable remedies for those affected by defective administration;
3. to identify systemic issues of defective administration and seek solutions;
4. to provide advice to government on matters relating to administrative actions and practices.

2.7 Our values are impartiality, efficiency, accessibility, professionalism, accountability and confidentiality.

2.8 During the period under review I have noticed how most public servants have shown a willingness to work with us to resolve complaints, and as a result, early resolution of complaints. This not only saves resources but also means a better service to the public. At the same time, there are those with whom we experience limited success. It is in this context that I challenge and call upon all public servants and governmental organisations to place a premium on early and quick resolution of complaints. I make this call fully understanding that there are many instances where early resolution is simply not possible. To the extent that it is, government departments and organisations will reap the benefits in that scant resources will not be committed to protracted disputes and the public will receive the often promised service it seeks.

2.9 Government departments and officials therefore need to examine their internal complaint resolution mechanisms. The better they become at solving problems at an early stage, the lower will be the level of frustration experienced by the public and public servant alike, and the greater the opportunity for the department/agency/office itself to improve its level of service.

3. Overview

3.2 My establishment was geared to deal with 40 incoming complaints per month. Before I took up office, I requested a work study investigation to be performed to enable me to determine staff needs in view of the rise in complaints received. Posts were created as set out in more detail in Chapter 6 below, and advertised. Appointments were to be made on 1 July 1996. With the perpetual increase in complaints received, however, the posts created will be insufficient by the time appointments are made. The process of creating further posts on my establishment will be an ongoing one until such time when the number of incoming complaints reach saturation point and levels out.

3.3 The difficulty in the interim is that it is a lengthy process to establish a proven necessity for further posts, to consult in terms of the relevant legislation, and to advertise posts and screen applications. The result is that a backlog unfortunately builds up in the office. This places tremendous pressure on the office, one would like to deal with all matters promptly, but due to sheer volume of work, the rate of productivity is slowed down. This is going to remain a problem until such time as I have been able to establish regional offices in terms of the New Constitution. It places a tremendous strain on my staff. I am however glad to say that they have risen to the occasion and are doing an excellent job under trying circumstances.

3.4 During the period under review, it was never necessary for me to have to resort to my formal powers to subpoena witnesses, take evidence under oath or search premises and seize documentation. This was made possible by the excellent co-operation I received from all institutions under my jurisdiction. It should be mentioned here that certain problems were experienced in some provinces, no doubt due to the amalgamation of the various former governments into new provincial governments. Notably in the Eastern Cape, we had most unsatisfactory responses to certain of my queries and only received co-operation after threatening to issue summonses.

3.5 The excellent co-operation of institutions has the added benefit that a more informal approach to investigations could be followed. Thus matters could be solved over the telephone or at a meeting, or information could be gathered by writing to the institutions as opposed to summonsing witnesses and having formal hearings with evidence given under oath. This resulted in the office being able to deal with complaints much quicker than it would have been able to do if a formal hearing had to be scheduled for every complaint. Such an informal approach, however, would not be appropriate in all cases and it is essential for the office to have the formal powers, also to fall back on should one meet with recalcitrance.

3.6 When it comes to complaints of improper prejudice by the authorities against a person or organisation, I regard my office as an office to approach as a last resort. It is expected of a complainant to first obtain a final response from the institution complained against before approaching me. In cases where complainants do approach me prematurely, the policy is, however, to assist such complainants by informing them of the procedures to be followed to obtain such a final response.

3.7 It is of tremendous assistance to the public and to my office if institutions have a high ranking official specially assigned to deal with complaints. Such a person should have access to all other officials and documentation in an institution, and would solve most of the complaints generated by the mere existence of a faceless bureaucracy in which members of the public tend to become lost. If such a complaints commissioner (or whatever an institution would like to call that person) is unable to solve the matter, the complainant is of course at liberty to approach me. In this way complaints commissioners would act as a screening mechanism to ensure that only matters that should come to this office, do so. There is a tendency, however, with certain institutions/departments to want to duplicate this office by wanting to set up their own public protector or ombudsman. This is totally unacceptable since it is a duplication of services already available to the public and South Africa cannot afford having various structures doing the same job. It is also totally unnecessary and resources could rather be made available to this office to deal with the work load. A complaints commissioner's (which I advocate above) aim would be to sort out a complainant's problems, and if it then turns out to be an unsolvable dispute between complainant and authority, to refer the issue to the Public Protector. A public protector or ombudsman within an institution on the other hand would have to make a finding on such a dispute. The duplication lies in the complainant (or institution) then in any case having the right to approach the national Public Protector who also has to make a finding on the issue The result would be an anomalous duplication and wastage.

4. Statistical Overview

4.1 Cases received and finalised

Cases carried over from September 1995: 544

Cases carried over to 1 July 1996: 1,439

4.2 Average new cases received per month

Oct 1995 - March 1996: 133
Apr 1996 - June 1996: 200

4.3 Classification of cases and manner completed

4.4 The following information should be useful to interpret the statistics regarding the manner in which a case was completed:

4. 4. l Findings made: These are cases where I investigated and came to a conclusion on the facts, either in favour of the complainant or in favour of the institution/department complained against.

4.4.2 Advice given or assistance rendered: In cases where I do have jurisdiction, cases classified under this heading mostly comprise of cases where this office has been approached prematurely. Complainants are informed about the correct procedures to follow to pursue their complaint before approaching me again. In appropriate cases (where, for example, the complainant is illiterate) my staff would assist by placing the complainant in contact with the right people. In cases where I do not have jurisdiction, my policy still is to assist a complainant by advising him or her on the correct procedures to be followed and places to contact.

4. 4.3 Referred to another body to finalise: These would only be matters where I feel that another body would be the appropriate authority to approach and from my side refer the case to that body, usually requesting them to keep me informed of developments.

4.4.4 Expected of complainant to use alternative legal remedies: These are cases where a court of law would be a more suitable forum or where complainants are already pursuing their matter in the courts.

4.4.5 No further action taken: These are cases:

• where it is impossible or unnecessary for me to take further action, for example the complainant informs me that his/her matter has since been resolved by the officials involved;
• where I request a complainant to repeat his/her allegations under oath or affumation (usually where they reflect on the integrity of another) and the complainant fails to do so;
• where I call for more details and the complainant fails to provide such,
• where the complaint is an anonymous one with insufficient details to put me in a position to pursue it; or
• where the complainant complains to another institution with a copy for my information only, and that institution resolves the matter.

5. Nature of complaints received and specific complaints

5 1 Complaints received dealt with any imaginable subject across the broad spectrum of public administration. I received, by way of example, complaints on the following matters:

5.1.1 Pensions

• Civil pension not paid out timeously after retirement.
• Refusal to take previous pensionable service into consideration when calculating what civil pension a person should receive.
• Welfare pension not paid out to person entitled thereto.

5.1.2 Prisons

• Conditions in prison not adequate, for example cold food and overcrowding.
• Dissatisfaction with the calculation of the date on which a prisoner may be considered for parole.

5.1.3 TMC Substructures

• Town planning scheme not enforced, for example illegal building and businesses allowed.
• Utilising water for sewerage works whilst a neighbouring farmer claims a right to that water
• Corruption in a department which has to approve building plans.

5.1.4 Tenders

• Irregularity in awarding of a tender, for example a more expensive tender is accepted with no justification.
• Suspected improper preference with regard to tender awards.

5.1.5 Civil Servants

• Bypassed re promotion.
• Unfairly dismissed.
• Probationary appointment not made permanent at the end of the probationary period.
• Appointment made on a lower rank than applicant was led to believed would be the case.

5.1.6 Police

• Victimisation by Police and prosecuting authorities
• Stolen motor vehicle impounded and sold by Police without notifying proper owner that the vehicle was found.

5. 1.7 Contracts

• State not paying what is due in terms of a contract.

5. 1.8 Correspondence

• Not receiving a reply from a department written to.

5..1 .9 Home Affairs

• Refusal of passports
• Complaints regarding deportation of aliens.

5.2 One investigation was of special public interest, namely my investigation of the play Sarafina II. For that reason I brought out a special report (Report no 1) on that investigation. The relevant Department indicated that they intend to follow all recommendations I had made in that report. I have subsequently been kept abreast of some of the steps taken to implement the recommendations. It should be stated that I find very little resistance from institutions accepting and implementing my recommendations.

5.3 To give a better picture of complaints and how they were dealt with, I report by way of example in detail on a few matters below:

5.3.1 Case number: 263/91

This matter concerns a complaint originally lodged with the former Ombudsman relating to the destruction of a sensitive nature area, known as the Kaaimans River estuary. The complaint was originally lodged and is still pursued by the same complainant. One of the complainant's concerns is the use of the Kaaimans River by powerboats. She claims that the powerboats are causing havoc and destruction in this area. As a result of her complaints and the impressions gained during the enquiries by the former Ombudsman, Mr Justice Van der Walt, the latter suggested to the Director-General of the Provincial Administration of the Western Cape on 28 July 1992 that a procedure for the renewal of permits for the powerboats should be followed involving the community concerned. The Ombudsman suggested that everybody concerned, including the owners of the ski-boats, should be allowed to put forward their objections when the renewal of permits was to be considered.

After the appointment of the Public Protector, the complainant again approached this office, still claiming that the same problem exists and that it is worsening. Our enquiries revealed that the above-mentioned suggestion by the former Ombudsman was one of the rare instances where it was ignored and that the permit was renewed without taking into account or inviting the objections of the parties concerned. Our further involvement in this matter resulted in a preliminary impact study of the area being done, which is in the process of being considered by the Western Cape Provincial Government. From the preliminary report it appears that there might be several issues at stake and, most importantly, that this area in fact warrants proper management if it is to be preserved. Further representations were made and discussions held with the Cape Nature Conservation authorities. The result is that the permit for the skiboats complained about has not been renewed. The important point to make here is that, should the provincial authority have considered the suggestion made by the former Ombudsman, many of the complaints that now exist would probably have been dealt with.

5 3.2 Case number: 570/94

A complainant approached this Office with the complaint that he was prejudiced by the Department of Trade and Industry when he left that Department's service in December of 1992 because of ill-health. He was advised by Trade and Industry that he could go on pension in the middle of a month (the 3rd to be specific), but when he received his pension benefits from the Department of Finance, he was informed that, because he contributed to the Government Service Pension Fund (as a permanent appointed employee), he was only allowed to go on pension at the end of a month. The Department of Trade and Industry one-sidedly decided that the period between 3 December and 31 December should be considered as leave without pay.

The complainant maintained that had the Department advised him correctly, he would rather have gone on sick leave for that period (it appears that he still had sick leave to his credit), and he then would have been able to receive salary for that period. When my Office approached the Department of Finance it became clear that it made a significant difference to the calculations of the complainant's pension benefits that he was considered absent from work, without pay. The Department of Finance was quite correct in calculating his pension benefits, and had Trade and Industry given the correct advice, he would have received a greater pension benefit. It was found that the complainant was improperly prejudiced by Trade and Industry and the recommendation that the Department of Trade and Industry make an ex grafia payment was only made after the Public Protector invited the Deputy DirectorGeneral over to discuss the matter. The Department formally agreed to accept the recommendation of the Public Protector to make an ex gratia payment to the complainant.

5.3.3 Case number 224/95

A complainant approached me regarding the difficulties she had in obtaining the pension due to her after her husband's demise the previous year. Her husband had been employed by the Venda Government at the time of his death. Because of all the changes that took place with regard to the TBVC States the complainant could not establish who to turn to. She was in dire financial straits when she approached me. We investigated her complaint and established that an amount of more than R14 000 was due to her immediately and that she should receive a monthly pension as well. With our help she received her benefits on reporting to the office of the department concerned. This will enable her to enrol for further studies at a university next year to better her prospects for the future.

5.3.4 Case number: 546/95

The complainant was employed by the office of a Chief Roads Superintendent of the Gauteng Provincial Government. He has been in employment since 1 September 1967. During May 1995, he was involved in a motor accident and as a result of his injuries he had to have of his fingers amputated. The physician that treated him put him on sick leave from 16 May 1995 (date of injury) until 30 May 1995 and indicated that he could report back for light duty on 31 May 1995. On 31 May 1995 he duly reported for duty, but was told by his supervisor that he was not fit for duty as his fingers had not healed properly. This would have made it difficult for him to do the duties of a labourer, which were normally assigned to him. He was told by his supervisor that he should go home and that he should only return once he was fit for duty again. This was confirmed in a statement taken at a later date from the supervisor. The complainant is an illiterate person. He accepted that the supervisor was in a position to give him leave to remain at home until such time as he was able to work again. For this reason he did not put in formal sick leave.

As the complainant was still absent on 24 July 1995, a letter was sent to the Chief Director: Personnel Management of the Department of Public Transport and Roads recommending that he be regarded as absconded. When he reported for duty on 2 August 1995, he was informed that he was not employed any longer. He explained that he had a doctor's note, but he was informed that due to the fact that he was absent from duty for such a long time without having formally having applied for leave, the Chief Roads Superintendent had recommended that he be regarded as having absconded. When the complainant came to this office he was visibly upset as he could not understand why he was informed by his immediate supervisor that he could go home until such time as he was fit to work, but then be regarded as having absconded.

From our investigation it was clear that he was truly under the impression that the supervisor could have given him such permission. There was no indication that the complainant had been granted the opportunity to state his case before he was regarded as absconded. When he did return, he furnished the department with a doctor's letter which confirmed that he was healed and that he could now resume his duties. I found that the complainant, being illiterate had been treated improperly and recommended to the department that he be reinstated without the loss of any benefits. We were eventually informed that the complainant reassumed his duties on 8 July 1996, retaining his previous position and benefits from 2 August 1995.

5.3.5 Case number: 697/95

A principal legal officer with the South African Police Service approached this office with a complaint regarding an allowance that the Police failed to pay to principal legal officers. A number of posts for the position of principal legal officer were advertised in the Sunday papers. According to this advertisement, a non-pensionable occupation allowance of R12 102,00 was payable to the successful candidates. The appointment of these officials was done in terms of and subject to the provisions of the South African Police Service Rationalisation Proclamation, 1995. This proclamation made provision for the Minister of Safety and Security to announce rationalisation schemes. The Scheme under which the positions involved were created and in terms of which the principal legal officers concerned were appointed, was called the Second Scheme for the Rationalisation, Reorganisation and Consolidation of the South African Police Service and was dated 31 March 1995.

The complainant complained that the allowance concerned was discontinued from August 1995 and that it was expected of him to refund the amounts that he had received for the months of June and July 1995. His enquiries into this matter revealed that a dispute between the South African Police Service and the Office of the Public Service Commission caused this allowance to have been discontinued. The Public Service Commission took the point that the allowance concerned was incorrectly granted to the relevant officials and that the Public Service Commission could not consent to this payment. The Police, however, argued that the Minister of Safety and Security was legally within his rights to determine salaries and allowances in terms of the South African Police Service Rationalisation Proclamation, 1995. This dispute continued for some time. During this period the principal legal officers concerned did not receive the allowance. Our involvement in this matter resulted in several legal opinions on the issue.

From the information made available to us, I came to the conclusion that the determination of the allowance to be paid to principal legal officers made by the Minister of Safety and Security was unlawful. The Office of the Public Service Commission, therefore, correctly declined to recommend the payment of the allowances. I also found, however, that an agreement came about between the South African Police Service and the officers concerned with regard to the allowance having to be paid. I was of the opinion that the agreement between the South African Police Service regarding the allowance might not be enforceable in law, but that a claim for damages could lie. I came to the conclusion that it could not reasonably have been expected of the officers concerned to have been aware of the unlawfulness of the allowance at the time of the agreement. I found that the officers were prejudiced by depriving them of the allowance and that it was improper do so. I made a formal recommendation that the nine principal legal officers appointed be paid the allowance as set out in the Rationalisation Scheme involved and that appropriate measures to authorise such payment be taken. I also recommended that the matter should be dealt with as a matter of urgency and that measures should be considered to prevent a recurrence of a similar situation in future. These recommendations were, as far as I could establish, followed by the South African Police Service.

The important point is that the State is bound by conditions stated in a advertisement for employment once the successful candidate is appointed in terms of that advertisement. It cannot at a later stage be said that because of a mistake, one of the conditions of service, especially with regard to the remuneration must simply fall away. Care should be taken that every possible provision that deals with employment and salary structures be properly considered before a position is advertised.

5.3.6 Case number: 739/95

A complainant approached me about his brother, Mr Z. not receiving his salary at the school where he was appointed as a night watchman during June 1995. The complainant referred the matter to us because we were able to help him with a problem he had earlier. Although Mr Z kept on working without salary and in spite of his several enquiries in this regard, he could not resolve his problem. We investigated and it was found that the principal of the school in question appointed Mr Z in a post that was redundant at the time. However, as Mr Z rendered his services in accordance with the contract he had with the principal (as representative of the Department of Education) and as he could not be blamed for the mistake that was made, it was decided, because of our intervention, to remunerate Mr Z as from the date of his 'appointment". Furthermore, as this post could now be justified, it was also decided to retain his services.

5.3.7 Case number: 5/96

The complainant complained about her rates and services account received from the Greater Johannesburg Transitional Metropolitan Council. The complainant lives alone, and usually her monthly consumption of water is quite low. During the time when water restrictions were in place, the complainant was not at home for a few days. A water leakage occurred at her house. On her return, she immediately had the water pipe repaired. The Council fined her R660,00 for excessive water consumption. She was quite willing to pay the fine but on her next two monthly accounts, she was charged for an estimated surcharge on water, and the estimate for her monthly domestic use was also almost as high as the previous month when the leakage occurred. Because of these excessively high accounts, she had trouble paying the two accounts, and while my office was already looking into the matter, her electricity was disconnected. To have her electricity reconnected, she had to pay the full outstanding amount plus a reconnection fee of R125,40. This the complainant did.

Upon my investigation of the matter, I was advised by the Head: Water & Electricity Accounts, that meter readings are only done once every three months and their computer automatically estimates the meter readings for the following two months. The complainant's meter reading was taken in November 1995, when her water usage was exceptionally high due to the water pipe leakage. When the next reading was taken in February 1996, it was found that her actual water usage was in fact much lower than what was estimated and her account was adjusted accordingly The Head: Water and Electricity Accounts credited her with the necessary amounts in February and the reinstallation charges were refunded to her.

5.3.8 Case number: 405/96

The complainant is a Lesotho citizen who has been working in the RSA since 1979, as a driver of heavy vehicles. He was at all times in possession of a valid working permit. In 1994 he lost his job at the mine where he had been working for the previous 15 years. He returned to Lesotho in an effort to find work there, but since he only has a South African drivers licence, he was unsuccessful. He applied in 1995 for South African citizenship at the Randfontein offices of the Department of Home Affairs. He alleges that he visited that office on several occasions, but that the Department could still not give him an indication whether his application was successful or not. My staff phoned the Head of the Office at Randfontein and it was arranged for the complainant to go and see him personally. It turned out that the delay had been caused by a misunderstanding between officials and complainant, and his application was expedited and approved.

5.3.9 Case number: 591/96

A reporter approached the office with the complaint that she had for a considerable period been trying in vain to establish who sits on the Immigrants Selection Board of the Department of Home Affairs. According to the complainant the Department refused to give out that information, saying that the members of the Board need to be sheltered from the public because they would be pestered by people wanting to get permanent residence permits. I wrote to the Department requesting the necessary information. The Department responded by furnishing me with the names of all the Board members as well as the name of the Chairperson.

Regarding the Department's refusal to disclose the names of the members of the Board to the public, the Department informed me that it was their view that there was a tacit agreement between the Minister/Department and the members of the Board in terms of which their names would not be made public, the reason being that "it is common knowledge that members of statutory bodies with functions comparable to those of the Immigrants Selection Board are often approached directly in their private capacities by persons with an interest, in an attempt to influence the decisions of the Board." I was furthermore advised that this situation was to be changed in the Aliens Control Amendment Act, which was to come into operation on I July 1996. I responded to the information provided by the Department by saying that the "tacit agreement" should not be elevated to the status of an agreement or a contract, and that there was no such contractual agreement not to disclose the names of the members. Further, there is no legal proviso prohibiting the publication of the names of Board members. Indeed, of the numerous statutory boards in existence, none comes to mind which enjoys such protection as the Department would want to give to the Board members of the Immigrants Selection Board.

I afforded the Department the opportunity to bring further facts to my attention, to justify the withholding of the names and they were unable to do. I found that there were insufficient grounds for prohibiting disclosure of the names of the said Board members. I proceeded to disclose the names to the complainant.

5. 3 10 Case number: 620/96

The complainant is a medical doctor who wanted to further his studies in the USA. In order to be able to do so, he had to apply for a so-called J-1 exchange visitor visa from the US Embassy. Before the Embassy will consider the visa application, the applicant has to provide evidence that he intends returning to his country of origin upon completion of his studies in the USA. It was indeed the intention of the complainant to return to South Africa upon completion of his studies. An applicant furthermore had to provide a letter from his country's Department of Health, indicating that the skills that he/she is about to acquire are indeed needed in his country of permanent residence, which was the case here.

The Department of Health, however, informed the complainant that it could not support his application for a J I -visa to further his studies. I requested the Department to supply me with the basis of its refusal to support the application to enable me to ascertain whether or not the complainant was improperly prejudiced. I was furnished with a copy of the basic policy document of the Department. It appeared that the applicant did not comply with section 2.2 of the said policy, which stated that applicants working or studying abroad should return to South Africa for a period of at least 2 years before the application for support of a J1-visa will be considered. In the complainant's case he was offered a top position at one of the best medical schools in the USA on completing his studies in Britain. He was chosen on merit as he was the best candidate applying for the position. He was also going to pay for his own expenses and not to study with a South African bursary. He was convinced that if he was not able to take up the position, he will never again get such an opportunity. After some discussion with the Department of Health, they agreed that all that was really required from the Department was to state:

1. that the speciality in which training is sought, is needed in South Africa; and
2. that the applicant has filed a written assurance that he/she will return to South Africa on completion of the training.

The Department was able to confirm both the above-mentioned requirements, and they agreed to issue the required letter of support.

6. Establishment

6.1 The establishment of my Office for the period under review was as follows:

6.2 During the period under review, I created the following posts additional to my establishment:

4 X Senior Legal Administration Officer
2 X Administrative Clerk / Senior
I X Messenger

A document setting out the remuneration, allowances and other conditions of employment determined by me for the new posts was duly tabled in Parliament in terms of Section 3(11) of the Public Protector Act, 1994.

6.3 Interviews were finalised for the new posts during the period under review and Mr F F M Ngqambela joined my staff as a senior administrative clerk in June 1996. The rest of the new appointees were to take up office on 1 July 1996.

6.4 After l July 1996, my office will have the capacity of communicating in all the official languages with the exception of Venda. However, there will be at least one person in the Office who can understand Venda, if not speak it.

6.5 The Assistant to the Public Protector receives the remuneration package set out as Package 5 of the Service Benefit Packages for Office Bearers of certain Statutory and other Institutions as adjusted from time to time. All other posts in my office have remuneration packages equal to the equivalent rank in the Civil Service as adjusted from time to time.

6.6 1 expected Parliament to appoint a deputy public protector early in 1996. This did not happen during the period under review. As the office is under severe pressure, it is imperative Parliament appoints a deputy for me as soon as possible. This matter is to be pursued further with the relevant Parliamentary oversight committee.

7. Financing of the office

7.1 Funds for the expenditure connected with the activities of the office are provided in the Vote of the Department of Justice under a separate programme. It should be noted that this arrangement is an expedient one and does not imply that my funds are controlled by Justice. Since the office is independent and does not fall under the Executive. a way had to be found to make the budgetary processes and procedures available to this office.. The most logical would have been to attach my budget to that of the Speaker but the practical difficulties created by the distance between Parliament (Cape Town) and my office (Pretoria) militated against this. Thus the solution was found to make my budget a separate programme on the Justice Vote.

7.2 It should further be noted that I, and not the Director-General of Justice, am the Accounting Officer for this programme on the budget, and that I control my own budget. This is in an important aspect regarding the office of the Public Protector as his/her independence is not a theoretical matter. It must be seen to exist even with regard to funding

7.3 The budget of my office for the 1995/96 financial year is R1 630,000, which is made up as follows:

• Staff expenditure R988,324
• Administrative expenditure R195,093
• Supplies and printing R41,525
• Equipment R394,679
• Professional and special services R2,427
• Sundry expenditure R7.952

7 4 The budget of my office for the 1996/97 financial year is

R4 168 000, which is made up as follows:

• Staff expenditure R2,937,000
• Administrative expenditure R763,000
• Supplies and printing R211,000
• Equipment R49,000
• Professional and special services R153,000
• Sundry expenditure R55,000

8. Provincial Public Protectors

8.1 Section 114 of the interim Constitution of the Republic of South Africa Act 200 of 1993, provides that a provincial legislature may by law provide for a provincial public protector - who shall exercise and perform his or her powers and functions in consultation with the national Public Protector. The appointments have to be made by the Premier of the Province in consultation with the national Public Protector.

8.2 I encouraged provinces to go ahead with such appointments since provincial offices would have taken much of the strain of my own office and put us in a position to deal with more complaints expeditiously. Further, it is my belief that accessibility is one of the hallmarks of an efficient administration.

8.3 Seven of the nine provinces went ahead with legislation and had either Acts or bills in place at the end of the period under review. When it subsequently became known that the draft of the final Constitution did not make provision for Provincial Public Protectors, the whole process came to a grinding halt. The provinces were wary of appointing people to an office which will not be continued under the final Constitution. This, of course, had a most negative impact on the capacity to deal with incoming complaints. To bridge this gap, and to bring my office closer to the people. I intend to set up regional offices as soon as the final Constitution comes into operation, since the prerogative to start such offices will then no longer lie with the Provincial Legislatures, but with the national Public Protector.

9. Public Relations

9.1 I was concerned on taking up office that the public was not sufficiently aware of the Office. This is the reason why I considered it one of my primary tasks upon assuming office to publicise the existence and functions of this office as much as possible. There is a need to do this: even though the office has been in operation in Pretoria (as the office of the Ombudsman) for a number of years, many people were not aware of its existence.

9.2 Since my appointment we have started a community drive on radio, television and in the print media to foster an awareness in this regard. We are painfully aware that people in rural areas and illiterate people tend to be bypassed by the general flow of information through the media and for this reason we are engaged with specialists and experts in communication strategies with a view to also addressing those communities. We produced a pamphlet entitled "What you need to know about the national Public Protector". It was only available in English during the period under review and we are going to have this translated into the other official languages.

9.3 The publicity drive, judging by the feedback we have received from various institutions and individuals, has been very positively received. The profile that has been established is positive. With just over a year of existence many people have become aware of the existence of the office and the nature of the service it delivers.

10. Conclusion

10.1 In conclusion, I would like to thank the staff of the Public Protector's office for their ongoing commitment to provide sensitive, timely and professional service.

10.2 Further, I wish to commend those public servants who have worked and who work each day to provide a high quality of service and who co-operate with my staff in solving problems. These are the people who realise that in the resolution of public complaints the quality of government administration is not only scrutinised but enhanced.

10.3 Finally, I express gratitude and appreciation to the Parliament of the Republic of South Africa for the privilege of serving as its Officer and for the support I have received also from the Parliamentary Oversight Committee, not only with regard to the needs of the office but in encouraging governmental organisations to implement the recommendations of the Public Protector.

ADV S A M BAQWA
PUBLIC PROTECTOR