Address by Public Protector Adv. Thuli Madonsela during the media briefing in Pretoria on Monday, August 3, 2015.
Honourable Speaker of the National Assembly
Honourable Members of the National Assembly
People of South Africa
I’m deeply saddened by the fact that I have to use the media as a platform to address you. This in not my prefered mechanism to engage you but the only one I have after the Ad hoc Committee deliberating on the findings I made following an investigation into alleged unduly excessive upgrades at President Zuma’s private home decided not to invite me to address Parliament on the report.
I am further convinced Hon. Speaker that this mechanism of engagement is not the one that was envisaged by the architects of our constitutional democracy nor the mechanisms used between legislatures and Public Protector-like institutions across the globe.
I took the decision to engage you and the nation using this platform principally to advise on the constitutional provisions regarding the governance of the Public Protector as a constitutional institution, the constitutional requirements regarding the process to be followed regarding Parliamentary oversight in connection with a report issued by the Public Protector in terms of the Executive Members’ Ethics Act 82 of 1998, and to respond to utterances my office views as misinformation about my report.
Such utterances include whether or not I ever asked the Minister of Police to make any determination regarding the President’s payment of a reasonable portion of the cost of non-security upgrades at his private homestead and what it is exactly that I considered to be non-security upgrades and the basis of my decision.
In its 20 years of existence (the office turns 20 this coming October), this office has never received such vitriolic attacks from politicians as it has done following the release of Report N.o 25 of 2013/14, titled Secure in Comfort.
What is encouraging though is that not once has any of the attacks suggested or implied that Secure in Comfort deviated from the approach taken by my team and I in the manner in which we investigated and presented findings and remedial action in respect of other reports issued under the Executive Members’ Ethics Act (EMEA) since I became Public Protector in October 2009. In this regard, it must be noted that Secure in Comfort was the 11th EMEA report I issued since being PP and the 5th dealing with alleged excesses in the administration of benefits for members of the Executive.
As the attacks are unleashed by all and sundry including, spokespersons of the governing party in and outside Parliament, without reference to specific offensive extracts from the report in question or the laws and related prescripts it seeks to enforce, I have wondered what would have President Mandela made of this bizarre turn of events, considering that he once said:
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 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…
"It was to me never reason for irritation but rather a source of comfort when these bodies were asked to adjudicate on actions of my government and office and judged against it. One of the first judgments of our Constitutional Court, for example, found that I, as President, administratively acted in a manner they would not condone. From that judgment my government and I drew reassurance that the ordinary citizens of our country would be protected against abuse, no matter from which quarters it would emanate. Similarly, the Public Protector [Ombudsman] had on more than one occasion been required to adjudicate in such matters.”
Having been unable to hold a formal meeting with HE President Zuma, I’ve also been wondering what he is making of these vicious attacks in the light of him having said the following on 15 March 2011 after I had released several reports under the EMEA:
“The Office of the Public Protector … has to ensure that citizens are protected from violations of their rights, the abuse of power, negligence, unfair discrimination and maladministration. People will have faith in the office if they know that the Public Protector will act impartially to protect their rights.
“Society needs to believe that the Office of the Public Protector will not be influenced by either the complainants or those institutions or individuals that are being investigated.
“We in government respect the constitutionally guaranteed independence of our Chapter 9 institutions. We respect the work of the Public Protector even when we disagree with the findings or censure from that office. We respect our Chapter 9 institutions, as well as the judiciary and Parliament the other two independent arms of the State.
“We value these institutions of our democracy because we are proud of the Constitution of our country which we worked so hard to develop … In this regard I was pleased to read the Service Pledge by … our Public Protector, in the Annual Report of the Public Protector for the financial year 2009 to 2010.
“She pledged to be accessible to and be trusted by all persons and communities, take prompt remedial action, and promote good governance in the conduct of all state affairs. I would encourage that this important pledge by our Public Protector be emulated by our government departments.”
I’ve also wondered if the political conduct we’ve witnessed as an office, nation and the world, can be viewed as consistent with the National Development Plan’s (NDP) assertion that “overcoming corruption and lack of accountability in society requires political will, sound institutions, a solid legal foundation and an active citizenry that holds public officials accountable … In addition to progressive laws, South Africa has created a number of institutions that deal with corruption and hold public officials to account.
These include oversight institutions such as the Auditor-General and the Public Protector that were established in terms of chapter 9 of the Constitution to strengthen democracy. The NDP was adopted by this National Assembly in 2014 without reservations.
I provide my thoughts to you through this platform today with the hope that perplexing statements such as “the Public Protector is governing herself”, “she issues her reports to the public instead of Parliament” and “the Public Protector misled the nation” will not feature in the National Assembly when the house deliberates on the contested upgrades at the President’s house in response to the report issued by the Minister of Police and presented to the Parliamentary Ad-Hoc Committee on 21 July 2015.
The Public Protector South Africa as you know, is an independent constitutional institution established under section 181 of the Constitution of the Republic of South Africa 1996, together with other institutios that we collectively refer to as Chapter 9 institutions, with the manadate to support and strengthen constitutional democracy. It’s important to note upfront that section 181 states that:
1. The following state institutions strengthen constitutional democracy in the republic:
a. The Public Protector.
b. The South African Human Rights Commission.
c. The Commission for the Promotion of the Rights of Cultural, Religious and Linguistic Communities.
d. The Commission for Gender Equality.
e. The Electoral Commission.
2. These institutions are independent, and subject only to the Constitution and the law, and they must be imparial and must exercise their powers and perform their functions without fear, favour or prejudice.
3. Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.
4. No person or organs of state may interfer with the functioning of these institutions.
5. These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the National Assembly at least once a year
Honourable Speaker you must agree with me that in view of the establishment clause for the Public Protector being the same one for the Auditor general, Electoral Coommisson and the others, there’s no additional or special accountability for the Public Protector above section 182(5) of the Constitution which regulates accountability for all of the Chapter 9 institutions.
It therefore follows, I respectfully submit, that no public functionary, including members of the National Assembly, has a right to do to or about the Public Protector what is patently prohibited or impermissible in respect of the Auditor General, the Electoral Commission and the others.
For example, the Electoral Commission cannot pronounce that elections were not free or fair or the opposite and the National Assembly responds by appointing its own Committee to look into the same matter and arrive at a different conclusion. The same applies with regard to the Auditor General’s audit outcomes.
The Executive too cannot do the same. As President Mandela said in the quote on “even the most benovelent governments” the architecture of our democracy includes scrutiny of the acts of politicians and other public functionaries by independent administrative and judicial bodies such as the Public Protector. The rule of law accordingly does not allow anyone to edit any of the constitutionally imposed institutions out of the public accountability path.
It is also worth noting that the arms length from the political branches of government, particularly the Executive was deliberate, hence the Constitutional court, in the certification judgement observed:
“The independence and impartiality of the Public Protector will be vital to ensuring effective, accountable and responsible government. The Office inherently entails investigation of sensitive and potentially embarrassing affairs of government. It is our view that the provisions governing removal of the Public Protector from office do not meet the standard demanded by Constitutional Principle XXIX.”
I can also not imagine a discussion of the Auditor General’s or the Electoral Commission’s report without engaging with it and the making of disparaging remarks without engaging these institutions.
I further respectfully cannot contemplate how any reasonable person could reconcile such conduct with constitutional provisions in section 181 such as “must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.”
You will note that I have to look into the matter because my report has had two Ad-Hoc Committee deliberations wherein members have persistently asserted that they are not re-investigating or reviewing the Public Protector’s findings.
Yet both processes are replete with selective references to some of the findings , attacking them, and in the case of the first Ad-Hoc Committee, concluding with findings that dispute the findings in the report they persistently claimed to be neither re-investigating nor reviewing.
I thought it prudent to advise on the key issues that form the key content of the attacks against my office and I, since the issuing of the Secure in Comfort report. We have identified the following 10 key issues:
1) Public Release of the Report through a Media Briefing and not Parliament
2) Authority for classification of installations as securiy and non-security
3) Key Findings and Remedial Action relating to the President
4) Key findings and Remedial Action relating to Ministers and Deputy Ministers
5) Key Findings and Remedial Action relating to Officials and Contractors
6) Relationship with SIU Report
7) The title “Secure in Comfort”
8) Legality of the Miniser of Police’s Report
9) Reporting Process Map as per the Executive Members’ Ethics Act
10) Public Protector’s Following Up on Remedial Action
1. Public Release of the Report through a Media Briefing and not Parliament
An issue has been made of why the report was released at a media briefing not presented to Parliament. One version given to a Sunday paper, a bold faced lie, was that the report was scheduled to be released in Zimbabwe.
The report, emanated from an investigation, into possible violation of the Executive Ethics Code by the President, duly requested by a Member of Parliament under section 6(1)(a) of the Exective Members’ Ethics Act, No 82 of 1998.
This meant the manner of reporting was determined by the EMEA which requires the PP to report to the President, on who alone is executive authority vested, who in turn, must, within 14 days of receiving the report, submit a copy to the Speaker of the National Assembly with comments thereon, together with a report on any action taken or to be taken in regard thereto.
The report was duly submitted to the President shortly before its release on 19 March 2014, who duly wrote to the Speaker of the National Assembly, within 14 days, on 02 April 2014. The President had earlier on been favaoured with the full report as a draft (provisional report) in response of which he submitted a comprehensive report prepared by his lawyers. A meeting had been subsequentlly held with the lawyers to thrash out issues of concern.
The report was released to the public via a media briefing on 19 March 2014.
A submission of the report to Parliament directly would not only have been in contravention of the section 3(5) of the Executive Members’ Ethics Act 82 0f 1998, it would also have been in violation of the doctrine of separaton of powers. Regarding the enforcement of the Executive Members’ Ethics Act, Parliament’s role is that of oversight and not trench involvement.
Regarding the use of media briefings, the practice of releasing media reports, predates the current Public Protector, is a global practice by Ombudsman-like offices across the globe and is in line the founding values of openness and transparency in section 1 of the Constitution, read with section 182(5) of the Constitution which states:
“Any report issued by the Public Protecyor must be open to the Public unless in exceptionla circumstances, to be determined in term sof national legislation, require that a report be kept confidential.”
However, when a report is issued only in terms of the Constitution and the Public Protector Act, the principal legislation regulating the Public Protector’s excersise of her/his investigative powers as envisaged in section 182(1) of the Constitution, the reporting arrangements are determined by section 8. According to section 8, there is no obligation for the Public Protector to submit any report to Parliament although all reports except those given to the President under the EMEA, are routinely submitted to the Speaker of the National Assembly. Section 8(2) regulates the submission of findings to the National Assembly in the following manner:
“ 2(a) The Public Protector shall report inwriting on the activities of his or her office at least once eery year: Provided any report shall also be tabled in the National Council of Provinces
2(b) The Public Protector shall, at anytime, submit a report to the Nationak Assembly on the findigs of a particular investigation if-
(i) he or she deems it necessary
(ii) he or she deems it in the public interest;
(iii) it requires the urgent attention of, or an intervention by, the National Assembly;
(iv) he or she is requested to do so by the Speaker of the National Assembly, or
(v) he or she is requested to do so by the Chairperson of the National Council of Provinces”
For the record, this office has never failed to present a requested report even where such report was not requested by one of the stipulated Presiding Officers but by one of the Committees such as the Joint Committee on Ethics and Members’ Interests. The allegations regarding failure to favour Parliament with reports is accordingly patently unfair and untrue.
2. Key Findings and Remedial Action relating to the President
Key findings regarding the President’s conduct principally relate to whether or not he acted in violation of the Executive Ethics Code in connection with the public-funded upgrades at his private home in Nkandla.
Key findings in this regard principally relate to what I made of the President having been alerted as early as November 2009 about possible irregularities and excessive expenditure in the upgrades to his private home in November 2009 and of the value of his estate having been increased through installations that should have never been installed on the authority of current prescripts regulating security upgrades taken with expert judgements made by the authorised security experts from the South African Police Service who determined and recorded what was to be installed.
Regarding whether the President should have done something is yes to the extent that the media warned of alleged irregularities in November 2009 when the cost estimate was at R65m and his interaction with the officials through his principal agent Makhanya instead of official channels.
I must point out the that the Constitutional Court arrived at the same conclusion in Khumalo versus MEC for Education KZN where it said section 195 of the Constitution imposes an obligation on public functionaries to take action to prevent or arrest an irregularity that has been brought to their attention.
I made reference to this observation in the statement I read when releasing the Secure in Comfort report on 19 March 2014.
Regarding the value of the President’s estate having been improperly increased at state expense, the finding is undue benefit. This finding has nothing to do with an act or commission or omission by the President, it similar to the doctrine of unjustified enrichment in civil law.
It is also in line with the form of improper conduct referred to as “improper or unlawful enrichment” under section 6(4)(a)(iv) of the Public Protector Act. Public servants return monies to government regularly where such monies were overpaid to them by mistake. Fault on their part is not a requirement.
3. Key findings and Remedial Action relating to Ministers and Deputy Ministers
There are accusations that the report and remedial action targets the President. Firstly the main complaint in terms of the EMEA was directed at the conduct of the President, the report as all other reports examines the propriety of the conduct of all who played a part or were supposed to play a part to prevent the procurement and financial irregularities relating to the upgrades impugned.
Paragraphs 10.6.1.2 and 10.6.1.3 deal with findings against all the Ministers and Deputy Ministers involved. When following up on remedial action, the Presidency has been duly asked about progress in this area as we’ve done in respect of EMEA reports previously. Unfortunately no progress has been reported
4. Key Findings and Remedial Action relating to Officials and Contractors
It has been insinuated that the report is silent on lapses by officials leading to irregularities and excessive charging by contractors. This cannot be further from the truth. The report deals with unauthorised variation orders and possible overcharging, even making comparisons between the cost of state funded upgrades and owner funded upgrades on Part C of the report, dealing with Supply Chain Processes.
The report identifies all the key actors in the Supply Chain Management processes, from deciding what to install to procuring such items and indicating irregularities by each, where uncovered. The remedial action in paragraphs 11.4 and 11.5 includes action to be taken against relevant officials and contractors.
The DPW submitted a comprehensive compliance report indicating that the SIU had been asked to take the process forward and when the SIU presented its first report, this office was advised of the findings regarding officials and contractors and action being taken in pursuit thereof, including disciplinary action and criminal action.
5. Authority for naming and classification of installations as security and non-security items
A lot of accusations have been flying around regarding the reference to items such as a swimming pool and amphitheatre and classification of items as non-security items.
A simple reading of the Secure in Comfort report will show that it was the Task Team that installed the items that named them. Such names appear in the architectural designs, the minutes, memoranda and the “Apportionment Document” prepared by the Task Team at the request of Deputy Minister Bogopane Zulu to identify items or portion of items for payment by the owner ( HE President JG Zuma) and those to be paid for by the state.
In the minutes and the apportionment document, the swimming pool is referred to as a swimming pool, the narrative starting with a discussion that there is a request from the Presidency to convert the firepool into a swimming pool and the committee flagging this item pending Mr Makhanya, the President’s agent consulting the President on his willingness to pay for the conversion. This matter is pended in minutes for a period of time. Then suddenly, and without any documents indicating what the owner’s response was, we later discover that the fire pool has been converted into a swimming pool and the Apportionment Document indicates an amount to be paid by the owner for the conversion.
Regarding what then is the structure where a fire pool has been topped up with swimming pool features, it clearly is a swimming pool with firefighting functionality. Does it matter whether its clean or not? Certainly not. The investigation was about what was constructed and not how have the installations been maintained or not maintained.
The label ampitheatre is given by the Task Team and the architect in the designs and the apportionment document, to the terraced installation built in place of an ordinary retaining wall, which would have been similar to the one by the swimming pool. Again it is they who indicate that the amphitheatre is for dual purposes, sitting space for public gatherings and soil retension due to the extensive disturbance occasioned by other installations.
Kraal, Chicken Run and Others
The President, whose submission in response to the Provisional Report was prepared with the assistance of lawyers who later engaged with the investigation team and I has never denied that he asked for a larger kraal when approached about moving his kraal, which still exists, to an exterior area on account of motion detectors. He has further never denied stating that that is one thing he is prepared to pay for.
Regarding the security status of the kraal, my determination that it was not a security feature was because its neither in the list of 16 Minimum Physical Security Standards items that guide the upgrading of security at the homes of Presidents, Former Presidents, Deputy Presidents, Former Deputy Presidents and selected foreign dignitaries nor on the list prepared by the authorized security experts.
The issue about the Centre is not its size or opulence, it is its justifiability on two grounds, authority to procure and necessity to procure.
A determination to classify the Visitors Centre a non security item was made on the basis of it not being among the 16 Minimum Physical Security Standards items mentioned in the preceding paragraph and was not listed by the authorized security experts that prepared the list of installations that the Task Team was meant to implement. In the minutes its recorded as one of those items requested by the Presidency but in respect of which we were unable to establish who in the Presidency made the said request.
Regarding necessity, during the inspection in loco, there was an unused building that could have done the same job. The key issue though is that it was not security experts that recommended it.
Relationship with SIU Report
For the record, the SIU arrived at a similar conclusion that some of the item installed were non-security items.
The name “Secure in Comfort”
Short titles of reports issued by this office and similar offices in other countries do not seek to give a literal description of anything. They are chosen for simplicity and for capacity for multiple interpretations. The feedback received from the public, including academia, is that the titles are contributing to the strengthening of democracy as they facilitate dialogue better than numbers and the long titles.
Legality of the Minister of Police’s Report
The is no legal basis for setting up an internal executive structure to review the findings of or reinvestigate a matter investigated or dealt with by a Chapter 9 institution. It cannot be done with the Auditor General and it cannot be done for the Electoral Commission and the others.
This does not mean that the President or another respondent institution may not seek advise in assessing a report of a Chapter 9 institution, with a view to engaging meaningfully with such report where the report deals with complex matters. Such advise however must go back to the organ of state or functionary from whom action is required by the report, for such person to make and take responsibility for the decision.
In the case in point, the Minister who exercises delegated authority, at the pleasure of the President who is the sole repository for Executive Authority, cannot under the Executive Members’ Ethics Act account to Parliament on behalf of the President. The proper process is for the President to evaluate and go back to Parliament in terms of section 3 of the EMEA to give a full account on his intentions regarding the Public Protector’s report.
What about the assertion that it was my report that advised that the Minister of Police should make the determination?
I recently noticed on receipt of a letter from the President responding to mine of 15 June 2015 alerting him to inaccuracies in the report of the Minister of Police that he was apparently harbouring under the impression that it was my report that advised that he asks the Minister of Police’s advise.
I would like to place on record as I did with the President on 30 July 2015, that nowhere does Public Protector report advise the President to
“Engage the Minister of Police with a view to determine a fair amount to be paid by him in respect of the items identified in this report as not listed in the security list and not reasonably linked to security:”
I further place on record as I did with the President that the appropriate paragraph actually asks the President himself to make the determination with the help of Treasury and the SAPS. It specifically states:
“The President is to:
Take steps, with the assistance of the National Treasury and the SAPS a, to determine the reasonable cost of the measures implemented by the DPW at his private residence that do not relate to security, and which include the Visitor’s Centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool.”
Public Protector’s Following Up on Remedial Action
When I was appointed Public Protector, this office was already following up on remedial action. One of the reports I found the team already following up on was the Nandoni Dam report where Advocate Mushwana required the fixing of the dam to prevent further deaths in the community caused by the dam and payment of compensation to affected community members.
Public Protector like institutions, globally do the same. In Pakistan this includes a defiance hearing when an institution or functionary requested to act defies the request.
I have already indicated that President Zuma applauded my office for this practice asking my colleagues in Africa to emulate this office, when he addressed them at the launch of AORC in March 2011.
The following up on remedial action on the Secure in Comfort report has been to all institutions expected to comply.
The bickering, which has included withholding support for this office’s request for a much needed budget increase, is undermining this constitutional institution’s optimal contribution to the strengthening of constitutional democracy through administrative scrutiny.
I am accordingly appealing to the National Assembly to collectively exercise leadership to ensure that engagement with this office is informed by and in line with section 181 of the Constitution and sections, 8 and 9 of the Public Protector Act.
Since the bickering started, we are witnessing worrying defiant trends. The emerging attitudes, though few, are a worrying trend. It’s also worth mentioning that the defiant conduct does not even meet the minimum requirements set by the first judgement of the High Court of the Western Cape in the matter between the DA and the SABC and Others.
That judgement prescribed that respondent institutions have to engage with this office on its findings.
One Accounting Officer, for example, recently sent this office a two paragraph response to a formal report in which she basically ignored the report and advised that the Complainant, a young father currently unemployed due to maladministration by her institution, should engage with her institution as if there had been no report finding that he had been wronged by her organ of state. With regard to some respondent institutions, we just see court documents delivered by the sheriff of the court without any prior engagement.
I respectfully draw your attention to the statement of the Hon. Judge Schippers in the second judgement of the Western Cape High Court on the SABC matter, regading the importance of this office and how government treats it. After stating that there is confusion regarding the status of the Public Protector’s remedial action as envisaged in section 182(1)(c) of the Constitution, which confusion must be urgently clarified by the SCA, the Hon Judge Schippers stated:
“The lack of clarity regarding the binding effect of the findings of and remedial action taken by the Public Protector has a significant effect on both organs of state and ordinary people for protection against abuse of power.”
I must indicate that my team and I are concerned that the safety valve an office such as ours is meant to provide by giving people a voice and the state, better ears, is being eroded. The ability to strengthen democracy as envisaged in the Constitution and the aspirations of the architects of our democracy as articulated in among others “Building the United Nation”, is being eroded.
You may recall that in the document Building a United Nation” the current governing party’sinputt to the Constitutional negotiations, the provision regarding the Public Protector stated:
"The Constitution shall as far as possible empower the poor and the vulnerable to enforce their rights and shall inter alia create a Human Rights Commission and a Public Protector to perform this function."
When the Supreme Court of Appeal was called upon to pronounce on this office’s powers and consequent responsibilities in the Public Protector vs the Mail and Guardian Newspaper and Others, case decided in 2012, the SCA instructively stated:
“The office of the public protector is an important institution. It provides what will often be a last defence against bureaucratic oppression, and against corruption and malfeasance in public office that are capable of insidiously destroying the nation. If that institution falters, or finds itself undermined, the nation loses an indispensable constitutional guarantee.”
Madam Speaker this office’s potential for meaningful contribution to proper dialogue between the people and government structures at all levels and implications thereof for peace and stability, cannot be overemphasized. We’ve done this successfully in places such as Dipaleseng, Nala, Braamfischerville and Olifantshoek.
We also should not underestimate the importance of peace and stability to development and the importance of good governance, including public accountability, integrity and responsiveness; constitutionalism; and the rule of law, to peace and stability.
It is also worth considering, as the NDP does, that this office and other integrity institutions have enormous potential to play a meaningful role in curbing the loss of or clawing back public funds that are dearly needed for the delivery of basic services, particularly those promised by the Constitution.
In this regard, former Chief Justice Sandile Ngcobo, speaking at the same meeting where President Zuma applauded this office’s approach, said the following:
“The importance of the role of such institutions was especially clear in many countries throughout Africa, where there was often a desperate need for basic human needs such as food, drinking water, health care, housing, education and social security.
“Our countries cannot bear the improper allocation of government resources. Having a Public Protector, or Ombudsman, with a mandate to investigate and publicly report in government administration is essential.”
I accordingly appeal that we stop personalising matters and comply with the Constitution as we partner in helping the people of South Africa exact accountability in the exercise of public power and control over public resources.
This is important if government is to play a central role in driving delivery on the constitutional promise of an inclusive South africa with the freed potential of every person and improved quality of life for all.
I once again advise that my office is available to assist the national assembly or any of its committees or members by presenting an overview and/or answering any questions on the report on upgrades at the President’s private home in Nkandla or any report issued or to be issued by this office.
I am hopeful that this statement will be received and considered in the spirit of putting our Constitution and our people first.
Adv. Thuli N. Madonsela
Issued by the Office of the Public Protector, August 3 2015