Opening Remarks by Deputy Public Protector Adv. Kholeka Gcaleka during a meeting with the Gauteng Cooperative Governance and Traditional Affairs and Human Settlements Portfolio Committee on the Public Protector’s findings following an investigation into t
Honourable Chairperson, Ms. Kedibone Diale;
Members of the public;
Members of the media;
Ladies and gentlemen;
On behalf of the Public Protector South Africa, I wish to express a word of gratitude to you not only for taking an interest in the work of this important independent constitutional institution but also for picking up where our powers end with a view to seeing to it that there is justice for the people of Alexandra.
Indeed this is what the Constitution envisages in section 114, which I will dwell on later on. In addition, this is what was higher up in the minds of the Public Protector, Adv. Busisiwe Mkhwebane, and the Hon. Speaker of the Gauteng Provincial Legislature, when they signed a Memorandum of Understanding on 14 February 2029, a mere two months before the events that led to this investigation took place. That MOU provides for, among other things, oversight of organs of state within the province.
I wish to preface our presentation with a reflection on important matters including our constitutional mandate, our approach to investigations, the envisaged impact of our findings and remedial actions, key issues covered during the investigation, the Portfolio Committees role as an oversight body and our experience dealing with the City of Johannesburg Metropolitan Municipality. The team will then take over to brief Honourable Members on the finer details of the investigation, our findings and the remedial action.
Section 181 of the Constitution establishes the Public Protector to, at a higher level, strengthen constitutional democracy. We share this responsibility with other institutions such as the South African Human Rights Commission (SAHRC), Auditor-General and the Electoral Commission, which are also established under the same section.
We are independent and subject only to the Constitution and the law. We are also impartial and must exercise its powers and perform its functions without fear, favour or prejudice.
The Constitution commands all other organs of state to assist and protect us so as to ensure our independence, impartiality, dignity and effectiveness. In addition, the Constitution prohibits interference by any person or organ of state with our functioning.
Section 182 of the Constitution empowers us 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, our remedial action is binding unless set aside by a court of law. This is according to the Constitutional Court judgement in EFF v Speaker of the National Assembly and others (EFF v Speaker).
We do not possess the power to investigate court decisions. Neither do we have the power to investigate private companies or individuals. However, we must be accessible to all persons and communities.
Any investigation report of ours must be open to the public unless special circumstances requiring that such a report be kept confidential. Such grounds could be considerations of national security, among other things.
We have additional powers prescribed by national legislation such as the Public Protector Act. In terms of that piece of legislation, we are 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 empowered 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.
In addition, we have powers under, among other pieces of legislation, the Executive Members’ Ethics Act and the Protected Disclosures Act.
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.
Impact of findings and remedial action
As indicated, appropriate remedial action seeks to redress those prejudiced by improper conduct and maladministration. That appropriate remedy must, to the extent possible, take the prejudiced party as close as possible to where they would have been had it not been for the improper conduct and maladministration
In the EFF v Speaker case, the Constitutional Court made the following instructive comments:
“Our constitutional democracy can only be truly strengthened when: there is zero-tolerance for the culture of impunity; the prospects of good governance are duly enhanced by enforced accountability; the observance of the rule of law; and respect for every aspect of our Constitution as the supreme law of the Republic are real.
“The Public Protector would arguably have no dignity and be ineffective if her directives could be ignored willy-nilly. The power to take remedial action that is so inconsequential that anybody, against whom it is taken, is free to ignore or second-guess, is irreconcilable with the need for an independent, impartial and dignified Public Protector and the possibility to effectively strengthen our constitutional democracy.
“Taking appropriate remedial action is much more significant than making a mere endeavour to address complaints as the most the Public Protector could do in terms of the Interim Constitution. It connotes providing a proper, fitting, suitable and effective remedy for whatever complaint and against whomsoever the Public Protector is called upon to investigate.
“However sensitive, embarrassing and far-reaching the implications of her report and findings, she is constitutionally empowered to take action that has that effect, if it is the best attempt at curing the root cause of the complaint.”
Key issues uncovered during the investigation
With regard to the business of the day, the team with take the Honourable Members through the findings and the remedial action. However, I wish to highlight a few issues at a higher level.
Our investigation, which was an own-initiative intervention triggered by the flare-up of violent protests in Alexandra and threats to “shut down” the township in April 2019, found that the City of Johannesburg Metropolitan Municipality failed to render sufficient municipal services in Alexandra in a sustainable way. We found the management and delivery of bulk municipal services in the township to be inconsistent with the relevant provisions of the Constitution and the law.
The investigation uncovered poor housing, overflowing manholes, blocked drains, poor lighting, uncollected refuse and filth along walkways and communal toilets shared by up to seven families but cleaned only once a week as among key service delivery problems troubling the community of Alexandra.
There were also issues such as widespread land invasion and property encroachment resulting from poor housing. In addition, potholes abounded in the streets and the Juskei River was heavily polluted with raw sewer.
Lack of records impeded the part of the investigation dealing with the Alexandra Renewal Project (ARP). However, we noted that the City has already appointed a firm of attorneys to conduct a forensic investigation into the entire administration of ARP. This notwithstanding, we recommended to the Head of the HAWKS consider a criminal investigation on the matter.
Among several pieces of remedial action, we recommended to Premier David Makhura 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 matters relating to the ARP.
The Portfolio Committees role as an oversight body
In terms of Section 114(2) of the Constitution, powers of Provincial Legislature include ensuring that all provincial executive organs of state in the province are accountable to it and maintaining oversight of the exercise of provincial executive authority in the province, including the implementation of legislation; and any provincial organ of state.
As an organ of the legislature, this committee has a critical role to play in terms of helping to breathe life into the work that the Public Protector has already done so as to bring the community of Alexandra as close as possible to where they would have been but for the maladministration and improper conduct of the City.
Cooperation from the City of Johannesburg Metropolitan Municipality
I wish to acknowledge the cooperation of the City during the two-year investigation that has brought us this far. Even before we finalised the investigation and issued the report, the City had already committed in an implementation plan received in response to an invite to comment on the draft findings in terms of Section 7(9) of the Public Protector Act to meet its obligations in terms of the applicable provisions of the Constitution and local government, water and environmental laws. That is admirable conduct, which other organs of state need to emulate.
In addition, I wish to express our appreciation to Premier Makhura whose office acknowledged receipt of the report in a later dated 31 July 2021, committing to respond within the prescribed timeframe to matters requiring his intervention.
I now wish to hand over to Mr. Vusumuzi Dlamini, our Acting Executive Manager: Investigations, who, I must say, played a key role in this investigation back when he was still based at our Johannesburg Office.
Thank you, Honourable Members.
Adv. Kholeka Gcaleka
Deputy Public Protector