Acting Public Protector Releases Investigation Reports
As the financial year 2022/2023 comes to a close, the Public Protector South Africa (PPSA) has traversed another fulfilling year of service to the People of South Africa, particularly those from marginalized communities, whom are at the core of our vision.
The PPSA is moving towards increasing its utilization of early resolution and alternative dispute resolution processes designed to resolve issues and complaints informally and as efficiently as possible at the first possible opportunity without the need for lengthy investigations.
Where matters have been overtaken by events or, where certain action has already been taken by the organ of state concerned, the PPSA is inclined to conclude those matters either as an advisory or an intervention report, which are both provided for under section 6(4) of the Public Protector Act.
Their purpose is among other things, to address underlying deficiencies in systems that are causing complaints or alert organizations to take action to reduce the risk of similar events occurring in the future. These alerts may be made by the Public Protector at any time, during or after the conclusion of an investigation.
These mechanisms permit the Public Protector to resolve matters in a more collaborative manner, and the outputs of such mechanisms are the joint product of the parties and reflect the Ombud nature of the PPSA. Such a collaborative approach significantly increases the likelihood of the resolutions being implemented during the investigation or very soon thereafter.
The Acting Public Protector Adv. Kholeka Gcaleka hereby publishes findings in respect of nineteen (19) investigations recently concluded by the institution for the final quarter of the 2022/2023 financial year.
The PPSA investigative reports communicate the results of the Public Protector’s investigations and provide accountability and a degree of transparency to the public for the office. The goal is to clearly and concisely communicate the complaint, what evidence was obtained, examined, found relevant and significant, the laws governing them and analysis conducted to reach the conclusions found in the reports.
The findings of these reports are published in terms of section 182(5) of the Constitution, read with sections 8(1) and 8(2A) (a) of the Public Protector ActNo. 23 of 1994.
In terms of this legal framework, the PPSA’s investigation reports must be published and findings must be made known to any person in a manner the Public Protector deems fit unless exceptional circumstances require that the reports be kept confidential.
Report No. 68 of 2022/2023 is an Advisory Report, stemming from an own initiative investigation launched by the Public Protector in terms of section 6(4)(a)(i) and (v) of the Public Protector Act, following media reports of an alleged rape of a patient, who was a minor at the time of the time of the incident which took place at Stellenbosch Hospital. The investigation focused onwhether the Management of Stellenbosch Hospital failed to inform the parents of the patient and the South African Police Service (SAPS) about the incident, as they were legally obliged to.
Having considered various legal prescripts and interviewing several persons, conducting an inspection at the hospital, the investigation revealed inter alia that the professional nurse responsible for the Adolescent Psychiatric Unit witnessed the incident but hospital staff failed to report the matter to the SAPS, and instead advised the patient’s mother to attend to report the matter to the SAPS herself. Such a failure was short of what was expected of the hospital staff in terms of the relevant legal prescripts.
The Western Cape Department of Health has since taken steps to prevent the reoccurrence of such incidents, which include but are not limited to the provision of In-Service-Training to staff on reporting patient safety incidents, posting a security guard at the ward, and a Quality Improvement Program for Mental Health Care has been developed and implemented and has shown an immediate improvement in care and compliance with the Mental Health Care Act. All hospital staff who were found to have acted improperly were disciplined internally.
Report No. 65 of 2022/2023 is an investigation that sought to determine if the Mpumalanga Department of Human Settlements failed to properly allocate Ms. Radebe an RDP house, Number 4937, Botleng Ext 4, Delmas after her application was approved and a house built and if so, whether it was improper of the Department to have done so.
In this matter, Section 6(9) of the Public Protector Act, 1994 was applied in favour of conducting the investigation. The section provides for the exercise of the Public Protector’s discretion to decide, whether to investigate a matter or not considering that it was reported to the Public Protector more than two years after the occurrence of the conduct complained of.
The investigation of this matter was concluded through a mediation and conciliation process conducted in accordance with section 6(4)(b)(i) of the Public Protector Act. The process culminated in the signing of a Settlement Agreement between the parties, which records among other things, the Department’s undertaking to petition the Deeds Registrar with a view to effecting the transfer of Stand No. 5019 Botleng Extension 4, from Mr. Moelamedi to Ms. Radebe, and also to ensure that the Human Settlements Subsides records are rectified in accordance with such transfer.
Report No. 64 of 2022/2023 is a formal report on an investigation of alleged irregularities in respect of the awarding of the “SMART” meter contract by the Nama Khoi Local Municipality without following the relevant legal prescripts.
The complaint was lodged by a member of the Northern Cape Provincial Legislature. The investigation found that the allegations were substantiated in that, inter alia, the appointment of the service provider by the Municipality was not in accordance with Regulation 36(1) of the Municipal Supply Chain Regulations. The Public Protector’s remedial action includes but is not limited to directing the Speaker of the Municipal Council to within sixty days, ensure that the Municipality investigates allegations of financial misconduct against the accounting officer and any other implicated official, and the Municipal Manager to initiate a process to take appropriate corrective action against the officials of the Municipality who participated in the awarding of the “SMART” meter contract.
Report Number. 69 of 2022/2023 pertains to an investigation of an alleged failure by the Free-State Department of Agriculture and Rural Development to acquire alternative accommodation for Ms. Mphatsoe. The investigation sought to determine whether the Complainant was deprived of her rights to occupy alternative land, following a dispute between the Complainant and the owner of the farm known as Annmekaar Farm in the District of Dewetsdorp, Free State Province. The dispute between the Complainant and the farm owner culminated in a Court Order, directing that the Complainant be permitted to occupy the farm.
However, having considered that the relationship between the farm owner and the Complainant had irretrievably broken down, the Department undertook to identify and purchase an alternative farm for the Complainant. This investigation was concluded through a mediation and conciliation process conducted in accordance with section 6(4)(b)(i) of the Public Protector Act.
The process culminated in the signing of a Settlement Agreement between the parties. In the agreement, the Department has undertaken to source an alternative farm for the Complainant, having set out six milestones between March 2023 – December 2023, that range from identifying an alternative farm for the Complaint, approval of the price for the identified piece of land, finalisation of a sale agreement and ultimately the handing over of a titled deed to the Complainant.
The Public Protector will be monitoring the Department’s conduct at each of the agreed milestones and has directed the Chief Director of Rural Development to provide the PPSA with a copy of the title deed once the process has been completed.
Report Number. 61 of 2022/2023 is a product of an investigation into allegations of maladministration, improper conduct, procurement irregularities and corruption in connection with the procurement and awards by the Department of Justice (DOJ).
In this matter, Section 6(9) of the Public Protector Act, 1994 was applied in favour of conducting the investigation. The section provides for the exercise of the Public Protector’s discretion to decide, on the condition that special circumstances have been established, to investigate a matter that has been reported to the Public Protector more than two years after the occurrence of the conduct complained of.
The investigation sought to determine inter alia, whether the evaluation and adjudication of tender RFB 2015 08-16, for the rendering of guarding and specialised services at the DOJ and the NPA, the procurement and appointment of the service provider, for the supply, delivery and installation of prefabricated mobile units to various offices of the DOJ, were in contravention of the provisions of section 217 of the Constitution, the Public Finance Management Act (PFMA).
The investigation revealed that there were in fact irregularities in respect of the said tender, however, that the DOJ had already taken measures to rectify the issues complained of, which included the and implementation of measures to prevent a reoccurrence of such issues and the institution of disciplinary action against the officials who were found wanting, thus no finding was made in that regard.
However, on 04 May 2022, the Public Protector requested the Directorate for Priority Crime Investigation (DPCI) to conduct an independent investigation into any possible criminal conduct which may have emanated from the allegations levelled against the DOJ and some of its functionaries, in terms of section 6(4)(c)(ii) of the Public Protector Act.
Report No. 74 of 2022/2023 is an investigation in respect of allegations of maladministration and improper conduct by the Department of Correctional Services (DCS) relating to the payment of the death grant benefits to the mother of the late Mr. Rankitsi William Moleki (the deceased) by the Department of Correctional Services (DCS), to the exclusion of his minor children.
The investigation found that the Department paid the deceased’s Death Grant Benefit directly into the private account of the deceased’s mother, rather than to the estate account as directed by the DGC and approved by the Chief Deputy Commissioner. The consequence of this error was to exclude the surviving minor children of the deceased from benefiting from the grant via the deceased’s estate.
The Public Protector’s remedial action has directed the National Commissioner of the Department of Correctional Services to within 60 days inform the Public Protector of the steps that the DCS is taking to rectify and effect payment of the portions of the Death Grant benefits due to the minor dependents of the deceased, evaluate the effectiveness of the internal claims processes and controls of the DCS to accurately and effectively implement recommendations of payments made by the Death Grant Committee and amend the Death Grants policy by inter alia, including the definition of “Dependent” in the policy.
Report No. 67 of 2022/2023 is an Advisory Report in respect of an investigation into allegations of irregular procurement and a violation of the Executive Ethics Code as a Member of the Executive Council (MEC) of the Mpumalanga Provincial Government, in connection with irregular procurement by Ms. Blessing Thandi Shongwe, MPL, in her capacity as former speaker of the Mpumalanga Legislature. The complaint is a consolidation of two complaints lodged with the Public Protector by two members of the Mpumalanga Provincial Legislature.
In this matter, Section 6(9) of the Public Protector Act, 1994 was applied in favour of conducting the investigation. The section provides for the exercise of the Public Protector’s discretion to decide, whether to investigate a matter or not considering that it was reported to the Public Protector more than two years after the occurrence of the conduct complained of. The investigation sought to determine inter alia, whether in her capacity as the Speaker of the Mpumalanga Provincial Legislature, Ms. Shongwe misused public funds to subsidize her stay at a hotel in Pretoria during the 2015/2016 festive season, whether the procurement of SAP support and maintenance services and photocopier machines by the Mpumalanga Provincial Legislature was irregular.
The Public Protector’s findings indicate among other things that Ms. Shongwe indeed misused public funds to subsidize her stay at a hotel in Pretoria during the 2015/16 festive season, the tender awarded for a SAP contract was awarded irregularly on the basis that entity the tender was awarded to use a SAP accreditation certificate that was not registered in its own name. The Public Protector however could not draw any conclusions on the allegation that the procurement of the services to supply photocopier machines was irregular.
The Public Protector made a number of observations, which include but are not limited to, that through the intervention of the Public Protector, Ms. Shongwe repaid the full amount in respect of her accommodation at the hotel in Pretoria for the 14 December 2015 to 02 January 2016 and that while there are adverse findings made against officials of the Mpumalanga Provincial Legislature, no remedial action has been taken in this regard as the officials are no longer in the employ of the Legislature.
The balance of twelve (12) reports are:
Report No: 62 of 2022/2023
Report No: 63 of 2022/2023
Report No: 66 of 2022/2023
Report No: 70 of 2022/2023
Report No: 71 of 2022/2023
Report No: 72 of 2022/2023
Report No: 73 of 2022/2023
Report No: 75 of 2022/2023
Report No: 76 of 2022/2023
Report No: 77 of 2022/2023
Report No: 78 of 2022/2023
Report No: 79 of 2022/2023
Adv. Gcaleka wishes to reiterate the binding nature of the Public Protector’s remedial action. Accordingly, where adverse findings have been made and appropriate remedial action taken, Adv. Gcaleka urges the relevant organs of state to implement the remedial action fully.
The implementation of the Public Protector’s remedial action is an expression of a willingness by the state to ensure that justice is not only done, but is seen to be done. The Public Protector is entrusted with inter alia, the duty to help the state identify shortcomings in its systems, and the remedial actions contained in the Public Protector’s reports are intended to assist in correcting the identified inadequacies so as to prevent reoccurrence of the issues complained of in the future.
We hereby express our gratitude for the increasing spirit of co-operation with the PPSA by organs of State, who have remedied the malfeasance internally even, prior to the conclusion of our investigations. We wish to emphasize our gratitude to the People of South Africa, who have continued to place their trust in this invaluable institution, and have shown us that they have faith in the credibility of our work and continue to believe in the relevance of this Constitutional institution by continuing to entrust us with their complaints.
Adv. Gcaleka further wishes to recognize and thank the committed and relentless men and women of the PPSA, led by the CEO and the ACOO, who have maintained their resolve through during the course of this financial year.
The full reports can be accessed on the Public Protector South Africa website www.pprotect.org