Statement by Public Protector South
Africa Chief Executive Officer, Mr Themba Mthethwa, during
the press conference on the Durban SAPS/DPW lease
investigation on Monday, June 20, 2011 at the Public
Protector House in Pretoria
Programme Director;
Senior Managers of the Public Protector South Africa
present;
Members of the media;
Ladies and gentlemen
Let me start by expressing our gratitude to all of you for
responding favourably to our invite albeit at such short
notice. For us, this goes to show the level of interest you
have in our work.
The Public Protector, Adv Thuli Madonsela, is on record
commending the media for its relentless interest in her
work.
This is very important to us as, among other things, it
helps raise awareness about the role and work of this
important constitutional institution. I would therefore like
to thank you sincerely for your unwavering support.
We have called this urgent press conference in an attempt
to address our concerns regarding the emerging trend of
leaking the Public Protector’s “provisional” reports. It has
happened again this weekend and for us this is a growing
concern.
The provisional report leaked this time relates to the
Public Protector’s investigation into complaints and
allegations of maladministration, improper and unlawful
conduct by the Department of Public Works and the South
African Police Services, relating to the leasing of office
accommodation in Durban.
I am sure that you are all familiar with the contents of
a front-page news report by a prominent Sunday newspaper
published in yesterday’s edition. The news report in
question relates to the afore-mentioned investigation.
In its news report titled “I Feared for My Safety”,
the newspaper quotes from what appears to be an official
Public Protector report, which was declared provisional and
confidential. The provisional report was sent only to
parties involved in the investigation on Thursday, June 9,
2011 in the strictest of confidence.
In terms of the Public Protector Act 23 of 1994, parties
against whom the Public Protector is considering potential
adverse findings are entitled to be given an opportunity to
engage with the basis on which the Public Protector is
considering such adverse findings. It is for this reason
that they are being favoured with copies of the draft
report.
Upon receipt of responses from parties involved the
Public Protector analyses and, to the extent possible,
integrates comments that have merit. This approach is also
in line with our resolve to promote transparency and is
consistent with the Public Protector institutional nature,
which is inquisitorial rather than adversarial.
Ladies and gentlemen;
The drafters of the Public Protector Act prohibited the
publishing of details relating to the Public Protector
investigation that is still underway. Section 7(2) of the
Act states that:
“Not withstanding anything to the contrary
contained in any law no person shall disclose to any
other person the contents of any document in the
possession of a member of the office of the Public
Protector or the record of any evidence given before the
Public Protector, Deputy Public Protector or a person
contemplated in subsection (3) (b) during an
investigation, unless the Public Protector determines
otherwise.”
This makes the leaking of the Public Protector’s
provisional reports unlawful and this kind of conduct also
undermines justice, fairness and the integrity of our
investigations. It also strains relations between us and
some of our stakeholders. We would therefore like to call on
the media to work with us in this regard.
The reason we have repeatedly said our provisional
reports are not for public consumption is because comments
received from parties involved might warrant adjustments of
content here and there and if published during “provisional”
phase it poses a challenge of unfairness to institutions and
persons whose names are mentioned therein.
We are also of the view that the decision to publish this
leaked report was unethical. Even the newspaper in question
acknowledges in its news report that the document they
quoted from was provisional and declared confidential.
The Public Protector is considering taking up this matter
with the South African National Editors Forum (SANEF) to
discuss a mutually affirming way of dealing with this trend.
We will explore the possibility of agreeing on a Memorandum
of Understanding with SANEF.
While we condemn the leaking of our reports, we would
also like to, once again, applaud the media for its role of
exacting accountability and promoting good governance as
well as for its keen interest on our efforts to do the same.
We call on all media practitioners to be patient until
the final report is released. We have given parties until
Thursday, June 23, 2011 to comment on the provisional report
and only shortly thereafter will we be in a position to
communicate the findings and the remedial action to be
taken.
We wish to assure the public, Parliament and parties
involved in our investigations that this and any other
Public Protector investigations are conducted on the basis
of unwavering institutional independence and impartiality.
Thank you.
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