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By Public Protector Adv Thuli M adonsela Tuesday 15 October 2013

Presentation of Public Protector Annual Report 2012/13 To the Portfolio Committee on Justice and Constitutional Development Redressing Maladministration and Promoting Good Governance. By Public Protector Adv Thuli M adonsela Tuesday 15 October 2013.

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By Public Protector Adv Thuli M adonsela Tuesday 15 October 2013

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  1. Presentation of Public Protector Annual Report 2012/13To the Portfolio Committee on Justice and Constitutional DevelopmentRedressing Maladministration and Promoting Good Governance By Public Protector Adv Thuli Madonsela Tuesday 15 October 2013

  2. “Two roads diverged in a yellow wood,And sorry I could not travel bothAnd be one traveler, long I stoodAnd looked down one as far as I couldTo where it bent in the undergrowth;…. I shall be telling this with a sighSomewhere ages and ages hence:Two roads diverged in a wood, and I,I took the one less traveled by,And that has made all the difference.” Robert Frost

  3. CONTENTS PART I: CORE BUSINESS 1. A Colleague’s First Encounter with Parliament Triggers a Reflection on 4 Years of Service • Our Constitutional and Statutory Mandates • Our Higher Purpose: Why do We Exist? 4. The Year 2012/13 at a Glance • Recurring Themes From Cases for Noting by Parliament 6. A Note on the RDP Investigation • A glimpse into the Health & Poverty Hearings • Progress on Public Protector Rules 1

  4. CONTENTS PART 2: ACCOUNTING ON RESOURCES 9. Analysis of caseload over the last three years 10. Total case work load for 2012/13 11. Caseload per investigator 12. Human Resources matters 13. Annual Budget and Expenditure 14. Audit Report 15. Management of AGSA findings 2

  5. CONTENTS PART 3: CONCLUDING REMARKS AND REQUEST TO PARLIAMENT • Lessons Learned in year under review and last 4 years • Request to Parliament • A word of Gratitude

  6. A Colleague’s First Encounter with Parliament Triggers a Reflection on 4 years of Service • “You are statutorily forbidden from discussingindividual cases and I thought it would be helpful if we reminded ourselves of that. It is also the policy ofthis Committee not to prosecute or investigate individual cases, but we are anxious to learn aboutwhat you have learnt from your first few months in office.” – Chair of the Public Administration Select Committee in the UK Parliament to the Parliamentary and Health Services Ombudsman, Dame Julie Mellor • Reflections on Four Years of Service Independence, Accessibility, ADR and Impact – Balancing Rigor(Accuracy)/Swiftness and Recourse for wronged individual(s)/Transforming system

  7. OUR CONSTITUTIONAL MANDATE Section 182 of the Constitution provides that: (1)The Public Protector has the power, as regulated by national legislation- • to investigate any conduct in state affairs or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; • to report on that conduct; and • to take appropriate remedial action • The Public Protector has the additional powers and functions prescribed by national legislation • The Public Protector may not investigate court decisions • The Public Protector must be accessible to all persons and communities • A report issued by the Public Protector must be open to the public unless exceptional circumstances, to be determined in terms of national legislation, require that a report be kept confidential. Section 182 is to be read with section 181 establishing the Public Protector to support and strengthen constitutional democracy

  8. OUR 6 KEY STATUTORY MANDATE AREAS Six(6) Key Statutory Mandates: • Maladministration Mandate under the public Protector Act 23 of 1994 Includes abuse or unjustifiable exercise of power, capricious, discourteous conduct, improper or unlawful enrichment or receipt of any advantage; acts and omissions that result in improper prejudice.(s6) Includes power to make findings (s8)

  9. OUR 6 KEY STATUTORY MANDATE AREAS • Enforcement of the Executive Ethics Code i.t.o the Executive Members’ Ethics Act 82 0f 1998 • Shared Enforcement of the Prevention and Combating of Corrupt Activities Act 12 of 2004 • Safe Harbour for Whistle-blowers under the Protected Disclosures Act 26 of 2000 • Review decisions of the NHRBC i.t.o Housing Protection Measures Act 95 of 1998 • Resolve Access Disputes under the Protection of Access to Information Act 2 of 2000

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

  11. 2012/13 AT A GLANCE 284 Total Staff complement 25 860 Cases received or initiated 37 770 Cases Handled R183 626 000 Total Budget Allocation 2 085 Cases Referred 13 995 Cases carried over to 13/14 22 400 Cases Finalised 24 Formal Reports Issued

  12. 2012/13 AT A GLANCE (CONT.) 51 347 677 Persons Reached 49% Cases Upheld 893 Outreach Clinics 4 Media Briefings July – August 2012: National Stakeholder Dialogue 15 – 20 October 2012: Good Governance Week Advanced Certificate in Fraud Examination for 19 investigators May 212: Complaint-handling and human rights training

  13. Recurring Themes From Cases for Noting by Parliament • SERVICE FAILURE: From Indifference to Systemic Service Failure • CONDUCT FAILURE: From Non-compliance to Corruption • Accessibility to all Persons and communities: Foot print implementation- Long Road Ahead

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

  15. A GLIMPSE INTO THE HEALTH AND POVERTY HEARINGS • 3 Systemic Investigations ( Chris Hani Bara, Child Mortality, General Management) • Public Hearings: July-September 2013 • Fruitful Report Back Sessions with Provincial Legislatures (EC,KZN,NC,WC,MP,GP,LIMP,MP) • Preliminary Observations: Voices & Views Reports

  16. PROGRESS ON THE PUBLIC PROTECTOR RULES • The Public Protector Rules have been finalised and adopted by our EXCO • Next Step is State Law Advisors for review and gazetting purposes • To be tabled in Parliament for noting

  17. PART 2 ACCOUNTING ON RESOURCES

  18. ANALYSIS OF CASE LOAD OVER THE THREE YEARS

  19. TOTAL CASE WORKLOAD – 2012/13

  20. CASELOAD PER INVESTIGATOR

  21. Human Resource matters • PPSA’s vacancy rate as at 31 March 2013 was calculated at 3.7% percent, which was based on284 filled posts, 295 funded posts and 11 vacant posts. • The number of posts on approved organisationalstructure is 556, with 261 unfunded positions (which represents 47% of the total positions in the structure). This is a matter of serious concern to the Office.

  22. ANNUAL BUDGET AND EXPENDITURE

  23. AUDIT REPORT • Audit opinion • Unqualified • Matters of emphasis • Restatement of corresponding figures.

  24. AUDIT REPORT • Restatement of corresponding figures. • As disclosed in note 29 to the financial statements, the corresponding figures for 31 March 2012 have been restated as a result of an error discovered during compilation of the 31 March 2013 financial statements of Public Protector South Africa at, and for the year ended, 31 March 2013.

  25. AUDIT REPORT • The restatement was due to the following: 1. Writing off of the intangible asset from acquisition date. (Case Management System) 2. Accounting for operating lease expense previously not recorded. • This resulted in a decrease of R5 813 456 in accumulated surplus Management Action Plan • Preparation of financial statements bi-annually.

  26. AUDIT REPORT continued… Audit of predetermined Objectives • 24% of planned targets not achieved – Most of these targets relate to turnaround times for finalising investigations and enhancing the current Case Management System Management Action Plan • Additional funding to increase investigative capacity was requested from national Treasury. In the interim, the targets will be reviewed to ensure targets are achievable

  27. AUDIT REPORT continued… • Compliance with laws and regulations 1. Procurement and contract management • Goods and services with a transaction value of above R30 000.00 were procured without obtaining original valid tax clearance certificates as per the requirements of Treasury Regulations 16A 9.1(d) and practice note 8 of 2007/08.

  28. AUDIT REPORT continued… Management Action Plan • Provide training to officials implementing supply chain management system. • Review and monitor compliance. (This will be done by the relevant management level)

  29. AUDIT REPORT continued… 2. Expenditure management • Creditors were not always paid within 30 days of receiving an invoice , as required by section 38(1)(f) of the PFMA and Treasury Regulations 8.2.3. • Irregular, fruitless and wasteful expenditure

  30. Management response to AGSA findings… Management Action Plan • Implementing an integrated financial management system for receipt and payment of goods and services. • Monitor adherence to time lines for payment of creditors on a regular basis. (Review of age analysis by relevant management level) • Timely monitoring of compliance and proper planning in the future acquisitions of technology and other systems.

  31. PART 3 PUBLIC PROTECTOR CLOSING REMARKS AND REQUESTS TO PARLIAMENT

  32. CLOSING REMARKS AND REQUEST TO PARLIAMENT • The Public Protector’s resources are not commensurate with the mandate and strategic objectives of the organisation. Public expectations have significantly increased over the years. • Key priorities that need immediate attention from Parliament are: • Budgetary constraints that impact on our ability to adequately execute our constitutional mandate • Human resource constraints particularly the investigative capacity • Implementation of the Occupation Specific dispensation for the Legally Qualified personnel • Expansion of the Public Protector footprint (and related challenges regarding acquisition of adequate office space)

  33. CLOSING REMARKS AND REQUEST TO PARLIAMENT

  34. CLOSING REMARKS & REQUEST TO PARLIAMENT LESSONS LEARNED IN YEAR UNDER REVIEW AND 4 YEARS About Us: • A significant increase in the number and complexity of complaints received by the Public Protector • Increased reach of services in pursuit of section 182(4) of the Constitution • Increased productivity levels amid continuing challenge regarding balancing swiftness and accuracy despite increase in staff and ongoing improvements skills and work methods • Holding hands with municipalities, provinces and affected national departments amid a few implementation concerns

  35. REMARKS & REQUEST TO PARLIAMENT LESSONS LEARNED IN YEAR UNDER REVIEW AND 4 YEARS From Our Oversight Work: • Systemic administrative deficiencies mostly relating to lapses in compliance • Service Failure: From indifference to systemic failures in services such as RDP housing, administration of estates and municipal services • Improvements in some service areas e.g. SASSA and ID concerns amid concerns over persisting duplicate ID problem and impact on poverty • Growing reports of corruption and tender rigging • Without ending impunity, no difference can be made

  36. CLOSING REMARKS & REQUEST TO PARLIAMENT (CONT.) • Need to assist local government with policy development and training; • Need for tightening of Ethics Regulatory Framework and Training on Ethics. • Need for consistency in the application of disciplinary action

  37. CLOSING REMARKS & REQUEST TO PARLIAMENT REQUEST TO PARLIAMENT • Additional Funding: R35 389 734 • An opportunity to discuss section 182 of the Constitution read with relevant sections of section 181 • Support in instances of failure to implement remedial action as envisaged in section 182(1)(c) of the Constitution • An Opportunity to discuss and finalise Public Protector Rules • Note and support AOMA/AORC activities, including Africa Ombudsman Summit 2013 in Cape Town December 2013 A WORD OF GRATITUDE

  38. THANK YOU SIYABONGA; REA LEBOHA; DANKIE “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.” – Margaret Mead 0800 11 20 40 www.publicprotector.org

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