Address by the Public Protector Adv. Busisiwe Mkhwebane during the launch of a report on a joint-investigation between the South African Human Rights Commission (SAHRC) and the Public Protector South Africa (PPSA) into allegations of poor socio-economic c
Chairperson of the South African Human Rights Commission, Adv. Bongani Majola;
Deputy Public Protector, Adv. Kholeka Gcaleka;
Commissioner Andre Guam;
Commissioner Jonas Ben Sibanyoni;
Chief Executive of the Public Protector South Africa Ms Thandi Sibanyoni;
Chief Executive of the SAHRC, Mr. Tseliso Thipanyane;
Members of the public, particularly the community of Alexandra;
Members of the media;
Ladies and gentlemen;
We start this briefing on a sad note, having just learned of the untimely passing of the Executive Mayor of the City of Johannesburg Metropolitan Municipality, Cllr. Geoff Makhubo, who is said to have succumbed to COVID-19 related complications.
Our hearts go out to his family, friends, the leadership and staff of the CoJ as well as those of his organisation. We worked well with Cllr. Makhubo’s office during many of our investigations, including that whose findings we are releasing today. May his soul rest in eternal peace. Let us all be safe out there and observe all the safety precautions as communicated by government.
Coming back to the business of the day, I wish to start with a heartfelt message of gratitude to all journalists in attendance for the role they continue to play as the eyes and ears of society, ensuring that all of us are informed about matters that we ought to be aware of.
As it is, the investigation whose findings we are about to reveal was prompted by the news reports that we read about in the newspapers and on the social networks, saw on television and heard of on the radio when Alexandra was burning.
Had it not been for your meticulous work in that regard, we would not have known about the plight of the community of Alexandra. Moreover, we would not have done anything about the community’s struggles.
Just as you brought that information to our attention, we depend on you to relay the details that we will share in a moment back to the community of Alexandra and the country at large.
Although we discourage violent protests and destruction of property as a way a expressing frustration and impatience with the, sometimes, slow pace and poor quality of public service delivery, we would appreciate it if you could deliver to the community of Alexandra a message that says their protest was not in vain.
Having said that, we call on all communities across the country to preserve whatever infrastructure they have and to, in place of violent unrests, entrust institutions such as the Public Protector South Africa (PPSA) and the South African Human Rights Commission (SAHRC) with their service delivery grievances for long-term solutions. After all, these institutions exist purely for that.
In April 2019, following a week of violent service delivery-related unrest in Alexandra, Adv. Majola and I met to consider own-initiative interventions to tackle the issues that underlay the strike that engulfed the township.
The meeting resulted in the announcement of a joint-investigation aimed at finding long-lasting solutions to residents' grievances, looking into the acts and omissions of national, provincial and local administrations.
We said, at the time, that the PPSA would focus its intervention on the maladministration aspects of the issues, including the allocation of resources by respective administrations towards the delivery of quality public services.
The SAHRC, on the other hand, would focus on human rights issues such as access to housing, water and sanitation, education, health and the environment that is not harmful to the health and wellbeing of the people of Alexandra, among other things.
We are pleased to report that those investigations have been concluded. I will take you through the PPSA’s end of the bargain before handing over to Adv. Majola and Commissioners Guam and Sibanyoni to deal with the SAHRC’s share of the work.
Constitutional and legislative mandate
At the risk of preaching to the choir and as a starting point, it is, perhaps, necessary to reflect briefly on the PPSA’s constitutional mandate to illustrate where the institution is in tandem with the SAHRC and where they part ways.
Section 181 of the Constitution establishes these independent constitutional institutions along with several others such as the Auditor-General and the Electoral Commission. Jointly, they shoulder the mammoth responsibility of strengthening our constitutional democracy.
Like the courts, these institutions are independent and subject only to the Constitution and the law. They are also impartial and must exercise their powers and perform their functions without fear, favour or prejudice.
The Constitution commands all other organs of state to assist and protect these institutions so as to ensure their independence, impartiality, dignity and effectiveness. In addition, the Constitution prohibits interference by any person or organ of state with the functioning of these institutions.
Each of these institutions has a unique way through which it contributes to their collective higher purpose of strengthening constitutional democracy. I will focus on the Public Protector’s role in this regard as spelt out in section 182 of the Constitution.
This section empowers the Public Protector to investigate, report on and appropriately remedy any alleged or suspected improper or prejudicial conduct in state affairs or the public administration, in any sphere of government.
Just as court orders bind all persons to whom and organs of state to which they apply, the Public Protector’s remedial action is, according to the Constitutional Court judgement in EFF v Speaker of the National Assembly and others, binding unless set aside by a court of law.
The Public Protector does not have the power to investigate court decisions. Neither does the institution have the power to investigate private companies or individuals. However, it must be accessible to all persons and communities.
Any investigation report of the Public Protector must be open to the public unless special circumstances requiring that such a report be kept under wraps exist. Such grounds could be considerations of national security.
The Public Protector has additional powers prescribed by national legislation such as the Public Protector Act. In terms of this piece of legislation, the institution is empowered to investigate maladministration in connection with the affairs of government at any level, abuse or unjustifiable exercise of power or unfair, capricious or discourteous behaviour or other improper conduct or undue delay by a person performing a public function.
We are also competent to investigate improper or dishonest acts or omissions or offences referred to in the Prevention and Combatting of Corrupt Activities Act with respect to public money, improper or unlawful enrichment, or receipt of any improper advantage or promise of such enrichment or advantage by a person as a result of an act of omission in the public administration or in connection with the affairs of government at any level or by a person performing a public function.
We are further empowers by this legislation to look into acts or omissions by people in the employ of government at any level or those performing a public function which results in unlawful or improper prejudice to any other person.
Approach to investigations
We have a standard approach to investigations, in terms of which we set out to establish what happened, what should have happened, whether there is a discrepancy between what happened and what should have happened, and if that deviation amounts to maladministration or other improper conduct?
In the event of maladministration or improper conduct, we establish what it would take to appropriately remedy the wrong occasioned by the said maladministration or improper conduct.
The question regarding what happened is resolved through a factual enquiry relying on the evidence provided by the parties and independently sourced during an investigation.
The one regarding what should have happened focuses on the applicable legal prescripts that regulate the standard that ought to have been met by the relevant organs of state to prevent improper conduct and/or maladministration as well as prejudice.
The enquiry regarding the appropriate remedy or appropriate remedial action seeks to explore options for redressing the consequences of maladministration where possible and appropriate.
In the EFF v Speaker of the National Assembly and others case, the Constitutional Court made an important point, which tends to be overshadowed by the issues pertaining to the binding effect of our remedial action. That is the critical role the Public Protector plays to advance the ideal of access to justice in a country where litigation appears to be the preserve of the wealthy.
Accordingly, the Public Protector is an important leveller of the playing field between those who have the means to litigate against the state and those who do not. This is in alignment with what we call the Public Protector Vision 2023, the essence of which is to take the services of this institution to grassroots communities.
These are communities who are unlikely to afford the fees that come with taking the state to court as part of holding government to account or vindicating rights. The people of Alexandra fit the profile of such communities, hence our intervention on own-initiative.
Our investigation processes commenced on 02 April 2019 when we became aware of media reports of threats of a “Total shutdown of Alexandra”. The reports quoted ward councillor Mr. Tefo Raphadu indicating that the residents of Alexandra informed him and other ward councillors in the area about an impending shutdown of the township, which shutdown was planned to begin on 3 April 2019.
Based on a thorough analysis of complaints and the information obtained, we identified and investigated the following six issues:
- Whether the management and delivery of bulk municipal services in Alexandra by the City of Johannesburg Metropolitan Municipality (CoJ) accords with the duties imposed on it by the Constitution and the applicable law, and if not, whether such failure amounts to maladministration and improper conduct.
- Whether the provision of housing in Alexandra by the Gauteng Department of Human Settlements (GDHS) and CoJ accords with the duties imposed on it by the Constitution and the applicable law, and if not, whether such failure amounts to maladministration and improper conduct.
- Whether the enforcement of the laws in Alexandra by the South African Police Services (SAPS) and Johannesburg Metro Police Department (JMPD) accords with the duties imposed on it by the Constitution and the applicable law, and if not, whether such failure amounts to maladministration and improper conduct.
- Whether the provision of social services in Alexandra by the Gauteng Department of Social Development (GDSD) accords with the duties imposed on it by the Constitution and the applicable law, and if not, whether such failure amounts to maladministration and improper conduct.
- Whether the provision of education in Alexandra by the Gauteng Department of Education (GDE) accords with the duties imposed on it by the Constitution and the applicable law, and if not, whether such failure amounts to maladministration and improper conduct.
- Whether the total administration of the Alexandra Renewal Project (ARP) accords with the duties imposed on it by the Constitution and the applicable law, and if not, whether such failure amounts to maladministration and improper conduct.
Findings (Bulk municipal services (page 34 to 70))
The investigation revealed that the management and delivery of bulk municipal services in Alexandra by the CoJ does not accord with the duties imposed on it by the Constitution and the applicable law.
Evidence, including observations made by the investigation team during an inspection in loco shows that the CoJ has not provided sufficient municipal services to the community of Alexandra in a sustainable manner. The following service delivery deficiencies were recorded:
- Inadequate housing which has resulted in widespread land invasion and property encroachment;
- Failure or undue delay to issue title deeds to lawful owners of existing houses;
- Overflowing manholes, blocked drains and an unpleasant stench in hostels;
- Potholes in the streets due to a lack of maintenance;
- A general lack of maintenance and degradation of buildings at Hostels which has resulted in damaged plumbing systems, poor illumination and unhygienic conditions;
- Uncollected refuse or waste lies strewn along walkways and corridors within the informal settlements;
- Heavily polluted surface water on the Jukskei River due to direct uncontrolled deposit of waste and raw sewer waste into the stream;
- Chemical toilets shared by no less than seven families and located within a radius of about five hundred metres away from each other; and
- Chemical toilets only cleaned or drained once a week by Pikitup.
However, we note and fully acknowledge practical and significant steps taken by the CoJ as is evident from its Implementation Baseline Plan to commit and continue to endeavour to meet its obligations in terms of sections 152(1), 24, 195(1) (e)(f) and 237 of the Constitution, section 4(2) of the Local Government and Municipal Systems Act, section 19(1) of National Water Act and section 2 of the National Environmental Management Act.
It is further acknowledged that most of the adverse findings made in the interim report are already mitigated as most projects have been completed while others are still underway.
It is incumbent on the CoJ to ensure consistency in the delivery of the municipal services as indicated in the Implementation Baseline Plan provided to the Public Protector investigating team in order to meet its obligations in terms of sections 152(1), 24, 195(1)(e) (f) and 237 of the Constitution, section 4(2) of the Local Government and Municipal Systems Act, section 19(1) of National Water Act and section 2 of the National Environmental Management Act with a view to addressing the municipal service concerns highlighted in this report.
The conduct of the CoJ accordingly constitutes improper conduct as envisaged in section 182(1) of the Constitution and maladministration in terms of section 6(4) (a)(i) of the Public Protector Act, however it is to a large extent mitigated by projects that are already completed as per furnished Implementation Baseline Plan.
Findings (Provision of housing (page 70 to 91))
The investigation also revealed that the provision of housing in Alexandra by the GDHS and the CoJ does not accord with the duties imposed on it by the Constitution and the applicable law. It was noted during the investigation that significant strides have been made for the provision of housing for the community of Alexandra.
However, there are still some challenges as identified by the community. In essence, the community stated that the provision of housing remains woefully inadequate and manifests itself in the following socio-economic challenges within Alexandra:
- The ever mushrooming of illegal structures on every open piece of land, demolitions, illegal evictions and congestions;
- Overcrowding in the hostels and lack of maintenance;
- Tensions in the community and dissatisfaction by those who are on the housing list for long time but are still waiting for houses;
- Rise of vigilantism and criminal groups perpetrated by alleged allocation of houses to foreign nationals and collection of rentals by councillors;
- Illegal occupation of RDP houses;
- Eviction and/ or Demolition Court Orders which are not executed;
- Failure or undue delay to issue qualifying residents of Alexandra with title deed documents etc; and
- Trust deficit arising from the lack of progress on the settlement of the land claimants in Alexandra since a Court interdict was obtained in 2004. The Alexandra statement of Intent which was signed by some parties in June 2016, is still not a legally binding agreement nor has funding been committed for the statement of land claims.
The CoJ and GDHS have accordingly not placed sufficient measures in place to meet its obligations in terms of section 26 of Constitution, section 2 and 9 of the Housing Act; section 6(1)(2)(a), section 117 of the Local Government and Municipal Systems Act and section 16 of the Deeds Registries Amendment Act.
The conduct of the GDHS and CoJ accordingly constitute improper conduct as envisaged in section 182(1) of the Constitution and maladministration in terms of section 6(4) (a)(i) of the Public Protector Act.
Findings (Enforcement of the law (page 91 to 103))
The investigation further revealed that the enforcement of the law in Alexandra by the SAPS and JMPD does not accord with the duties imposed on it by the Constitution and the applicable law.
The submission by SAPS indicates a marked decline in major crimes such as murder, rape, assault, robberies and other contact crimes. However, crimes against property as well as lack of enforcement of by-laws within Alexandra remains prevalent and can be observed in the following manifestations.
This was not disputed by General Khehla Sitole or any of the parties interviewed during the investigation. The crimes in question include the following:
- Lawlessness in the form of illegal occupation of land;
- Encroachment of pavements;
- Informal trading;
- Illegal connection of electricity;
- Illegal dumping of waste;
- Uncontrolled influx of illegal immigrants;
- Malicious damage of state property and infrastructure;
- Lack of enforcement of traffic laws; etc.
The above identified gaps in the area of law enforcement within Alexandra all fortify the allegations that the SAPS and JMPD/ CoJ have not taken adequate measures to prevent, combat and investigate crime or to maintain law and order in Alexandra, particularly where by-laws are concerned. It is evident that further work still needs to be done to address the issue of law enforcement in Alexandra.
SAPS and JMPD have not placed sufficient measures in place to address the inadequacies identified in law enforcement in Alexandra. The conduct of the SAPS and CoJ/JMPD accordingly constitute improper conduct as envisaged in section 182(1) of the Constitution and maladministration in terms of section 6(4) (a)(i) of the Public Protector Act.
Findings (Provision of social services (page 104 to 117))
We found that the provision of social services in Alexandra by the GDSD does not accord with the duties imposed by the Constitution and the applicable law. The investigation revealed inadequate provision of social welfare services to the people of Alexandra.
The GDSD failed to develop and implement adequate social relief programmes and a Social Welfare Centre(s) or social infrastructure within Alexandra for people who are in need of social protection, to access it with ease. It is however noted that the GDID is in the process of procuring office space for the purpose of establishing a service point for GDSD.
We have also noted the concerns raised by the community of Alexandra during engagements with them that there are no referral services in respect of illegal immigrants to the Department of Home Affairs; referral services in respect of housing; sufficient food relief and psycho-social support for the victims of winter shack fires and victims of flooding disasters; sufficient substance abuse and crime awareness programs or knowledge of such programmes if available and also; places of care such as Child & Youth Care Centres, Home Based Care Facilities, and Older Persons Residential Care facilities for the vulnerable members of the community.
Failure to provide or enable access of adequate social services to the people of Alexandra does not promote the objects of section 27 of the Constitution and the White Paper for Social Welfare (WPSW).
However, we note and fully acknowledge practical steps taken as can be gleaned from GDSD Infrastructure Implementation Plan for Alexandra, which is an unequivocal commitment and a total endeavour to meet its obligations in terms of section 27 of the Constitution as well as in terms of other applicable legislative mandates.
It is further acknowledged that some of the adverse findings in the section in the interim report are to an extent mitigated as GDSD has already taken steps to address social challenges faced by people of Alexandra, while other measures are still underway such as the GDSD Infrastructure Implementation Plan for Alexandra supplied to the Public Protector.
It is therefore incumbent on GDSD to ensure completion of the all deliverables indicated in the GDSD Infrastructure Implementation Plan for Alexandra provided to the Public Protector in order to fully meet its obligations in terms of section 27 of the Constitution with a view to addressing the social service concerns highlighted in this investigation.
The conduct of the GDSD accordingly constitutes improper conduct as envisaged in section 182(1) of the Constitution and maladministration in terms of section 6(4) (a) (i) of the Public Protector Act, however it is to a large extent mitigated by commitments made under the GDSD Infrastructure Implementation Plan for Alexandra furnished to the Public Protector investigation team on 17 May 2021.
Findings (Provision of Education (page 105 to 130))
We also found that the provision of education in Alexandra by the GDE accords with the duties imposed by the Constitution and the applicable law. From the evidence gathered by the investigation team during an inspection in loco and submissions received from GDE, it appears that the schooling infrastructure or facilities in Alexandra are reasonably in place.
Evidence further revealed that sufficient and adequate educational programmes, additional or alternative classes were put in place to avert the negative effect of the civil protests on children’s school attendance and access to basic education as required by Constitution and South African Schools Act.
The conduct of the GDE does not constitute improper conduct as envisaged in section 182(1) of the Constitution and maladministration in terms of section 6(4) (a)(i) of the Public Protector Act.
Findings (Alexandra Renewal Project (page 130 to 145))
The allegation that the total administration of the ARP does not accord with the duties imposed by the Constitution and the applicable law, could not be determined due to the unavailability of documents related to the ARP.
The GDHS did not avail records in connection with financial, procurement, business plans, maps, drawings, contracts, list of service providers, and expenditure incurred or undertaken under the ARP due alleged seizure of such records by CoJ’s forensic investigators.
As a result of the lack or absence of such records, no audit could be done by the office of the Auditor General of South Africa as well as by this Joint Investigation Team, to determine the just and fairness of the procurement processes and the value for money spent under the ARP.
However, Messrs. Madhlopa and Thenga Incorporated Attorneys has already been appointed by the CoJ to conduct a forensic investigation on the entire administration of ARP. As a result, there would be little value to derive from traversing those issues again, especially from a resource perspective.
Once the forensic report in connection with the ARP is finalised, such will be shared with all relevant law enforcement agencies. As a result, we could not make a determination with regards to impropriety as envisaged in section 182(1) of the Constitution and maladministration in terms of section 6(4) (a)(i) of the Public Protector Act.
Appropriate remedial action
To remedy all the findings of maladministration and improper conduct in respect of the delivery and provision of bulk municipal services, housing, law enforcement, education and social services, we take the following appropriate remedial action as contemplated in section 182(1)(c) of the Constitution:
We direct the City Manager of CoJ to:
- Within 60 working days of the date of this report, table a copy thereof before the Municipal Council. The Municipal Council to discuss, adopt and pass a resolution thereon indicating steps/measures to be taken by CoJ to address shortcomings on municipal services in Alexandra in line with its legislative powers.
- Within 60 working days of the adoption of this report by the Council, submit a detailed project implementation plan to the Public Protector indicating steps/measures to be taken to act upon the following municipal service delivery issues in Alexandra:
- Fencing and maintenance of the Alexandra cemetery;
- Maintenance of the Helen Joseph Women’s Hostel and Madala Hostel;
- Decanting or de-densification of Alexandra;
- Refuse removal and identification and cleaning of illegal dumping areas in Alexandra;
- Addressing overflowing manholes, grey surface water;
- Enforcement of the By-Laws listed above by the JMPD; and the operational plan should include any collaboration with other law enforcement agencies, including SAPS;
- Dealing with illegal structures encroaching on municipal land and government structures; and
- Maintenance of roads.
- Within 30 working days of the date of this report, submit a Project Plan to the Public Protector for ARP forensic investigation which is being conducted by GFIS and Madhlopa and Thenga Incorporated Attorneys, in order to be assisted where necessary and within thirty (30) days thereafter CoJ must to submit to the Public Protector a final copy of the ARP forensic report.
We direct the National Commissioner of SAPS to:
- Within 30 working days of the date of this formal report, engage with JMPD/CoJ to draw up an operational plan relating to a supportive role by SAPS in the enforcement of By-Laws in Alexandra. The plan should include any collaboration and/or support that would be made by SAPS to JMPD in enforcing the By-Laws in Alexandra.
We direct the HoD of GDHS to:
- Within 60 working days of the date of this report, submit a detailed project implementation plan relating to identified RDP housing needs in Alexandra and criteria to be used when identifying qualifying and preferential beneficiaries.
We direct the HoD of GDSD to:
- Within 60 working days of the date of this report, submit a detailed GDSD Infrastructure Implementation Plan for Alexandra with clear dates, turn-around periods, targets and deliverables indicating how renovation and rehabilitation of the identified current houses to accommodate the proposed social amenities and/or social service centre(s) in Alexandra would be undertaken.
We further make a recommendation in pursuit of section 6(4)(c)(ii) of the Public Protector Act that the Premier of Gauteng:
- To request the President to issue a Proclamation in terms of section 2(1) of the Special Investigating Units and Special Tribunals Act, 1996 to investigate amongst others the following allegations in relation to ARP:
- Procurement fraud and/or irregularities,
- Post facto approvals, irregular awards, advance payments,
- Conflict of interests,
- Unauthorised expenditure, fruitless and wasteful expenditure and any other form of maladministration and/or misappropriation of public funds, and
- Recovery of public funds where appropriate.
- The Premier must further facilitate an overall multidisciplinary approach and collaboration between provincial and a local spheres of government for an ultimate realisation and improvement of service delivery issues in Alexandra.
Lastly, we make a recommendation in pursuit of section 6(4)(c)(ii) of the Public Protector Act that the Head of the Directorate of Priority Crimes Investigations (DPCI/Hawks) must consider a criminal investigation where it appears crimes have been committed in relation to the ARP.
We are alive to the reality that this may be a lot of information to take in. Perhaps to highlight a few indicators of the impact of this investigation on service delivery in Alexandra and therefore the legacy of our investigation, one can point out that the following issues, though not exhaustive, have either been settled or are in the process of being addressed in pursuit of our remedial action:
- Fencing and maintenance of the cemetery;
- Maintenance of Helen Joseph Women’s and Madala Men’s Hostels;
- Refuse removal, street cleaning and clearing of illegal dumping;
- Addressing of overflowing manholes and grey surface water;
- Identification of RDP housing needs and criteria for identification of qualifying beneficiaries;
- Enforcement of by-laws the JMPD;
- Maintenance of roads; and
- Sourcing of premises for social infrastructure through leasing of premises or repurposing of existing buildings.
For instance, a water pump and water tankers have already been installed at Helen Joseph Women’s and Madala Men’s Hostels, the broken fence at the cemetery has been replaced and refuse collection, clearing of illegal dumping and street cleaning take place daily, 7 days a week. All these are according to the implementation plans received from the CoJ and the GDSD.
As I conclude, we would like to thank all the respondents who assisted with information we required during the investigation. Had it not been for your cooperation and understanding that we don’t seek to vilify or embarrass you and that ours is merely to help you realise that which you already promised those who elected you to office by pointing you to your blind spots and helping you address your shortcomings, we would not be here today.
Above all else, we would like to commend the likes of the CoJ and the GDSD, who did not wait for us to finalise the investigation but moved swiftly to address some of the challenges identified and, in addition, submitted comprehensive implementation plans to breathe life into the appropriate remedial action that we have taken. We implore other organs of state to emulate this conduct.
In the same vein, we wish to thank Adv. Majola, Commissioners Guam and Sibanyoni and their team on yet another successful collaborative effort. As you may recall, the PPSA and the SAHRC have previously joined forces in investigations into service delivery challenges of grassroots communities in Masiphuphumele informal settlement in Cape Town, Western Cape and Glebelands Hostel in eThekwini, KwaZulu-Natal.
The two institutions are currently working hand in glove with key stakeholders to find everlasting solutions to the challenges that continue to bedevil the higher education sector to the detriment of young people.
These collaborations, which have been made possible by a Memorandum of Understanding signed between the two institutions in 2018, go to show that joining forces, as accountability institutions, we stand to make a greater impact than when we work in silos and competing against each other.