City Press Debate – Power and the Public Protector: John Jeffery

2013-05-14 10:00

Members in the justice committee must question what the Public Protector spends on, writes John Jeffery

The recent, much-publicised engagement between Public Protector Thuli Madonsela and the justice and constitutional development portfolio committee

of the National Assembly took place as part of the consideration of the justice department’s 2013 budget.

The Public Protector’s budget forms part of the justice budget.

The process entails a presentation by the office of the Public Protector on how they intend spending the money allocated to them, their strategic plan for the next three years as well as some detail on their activities in the past financial year.

This is part of the committee’s oversight function. At the end of the process, the committee will table a report, for adoption in the National Assembly, which will contain the committee’s views and concerns regarding the budgets and strategic plans of all the entities falling under the justice budget.

Although the committee can propose the budget be rejected, any concerns or other recommendations listed in the report are not enforceable. Our concern as a portfolio committee, across party lines, is whether the money allocated from the national fiscus will be well spent. Funding for the Public

Protector has increased significantly, from R86.5?million in 2008/09 to R199?million for the current financial year. This year’s increase is at a time when most organs of state are having to take budget cuts.

But the Public Protector feels her allocation is insufficient. She is asking for an additional R97?million this year.

As the Public Protector does not have enough investigators, the committee has been looking at the types of cases the Public Protector investigates.

The committee was concerned that the Public Protector was dealing with a large number of complaints relating to delayed court appeals.

This appears to be in conflict with the statutory prohibition on investigating the performance of judicial functions by any court of law, a concern raised in particular by the DA’s Dene Smuts.

In addition, myself and other members of the committee have been asking whether it is the best use of resources, given the demands on the office of the Public Protector, to investigate matters that could be resolved elsewhere, such as complaints by disaffected public servants.

I accept that, in terms of the statutory powers granted to the Public Protector, she may investigate such matters, but I am concerned it would be better for these matters to be dealt with by the Commission for Conciliation, Mediation and Arbitration or the Labour Court.

The Public Protector Act specifically allows the Public Protector to refuse to investigate a matter if the person prejudiced falls under the Public Service Act and has not exhausted the remedies conferred in that act.

The concern is that valuable resources are being wasted while complainants embark on forum shopping, trying to find some or other entity that will give them a favourable response.

There is a dispute between Ms Madonsela and the committee regarding the nature of the oversight that the committee can perform.

Section 181 of the Constitution states that the chapter nine institutions (of which the Public Protector is one) are independent, must be impartial, and must exercise their powers and perform their functions without fear, favour or prejudice – which I support.

But section 181 also states that these institutions are accountable to the National Assembly. I believe this does entitle us to ask questions, such as whether it is the best use of resources to investigate particular matters, specifically labour disputes, and even whether completed investigations are value for money.

Obviously, comments on current investigations would not be appropriate. We cannot accept that the Public Protector can present her report, and ask for more millions to spend as she wishes, without being able to question how she is spending what she has already been given.

Lastly, let me reiterate that the Public Protector has a crucial role to play. The ANC members of the justice committee are generally satisfied with the Public Protector’s performance and have regularly expressed this view in the committee.

Indeed, the establishment of an independent Public Protector “with wide powers to investigate complaints against members of the public service and other holders of public office; and to investigate allegations of corruption, abuse of their powers, rudeness and maladministration” was a central part of the ANC’s constitutional proposals in the early 1990s. This is still the position.

The concerns or criticisms raised are not intended to interfere with the independence or impartiality of the Public Protector. Rather, they’re intended to ensure the public gets the best possible service from her.

»?Jeffery is an ANC member of the justice and constitutional development portfolio committee in the National Assembly. He writes in his personal capacity

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