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Public Protector @AdvBMkhwebane is this morning scheduled to address the 7th @unisa Annual Spring Law Conference in Muldersdrift
PP: I wish to thank @unisa for having deemed me a worthy participant in this important conference and extending an invite to my office in that regard.
PP: I welcome such invites because they provide a rare platform for one to engage substantively with the public on matters involving my office.
PP: These engagements also enable my office to be accessible to all persons and communities as per the Constitution.
PP: I am grateful for,the opportunity and I trust that my contribution will help UNISA with whatever it set out to achieve.
PP: I have been asked to speak on the role of the independent constitutional institutions as a collective.
PP: These institutions are affectionately known as "Chapter 9 institutions" by virtue of been provided for under Chapter 9 of the Constitution
PP: I will, however, focus on the Public Protector as these institutions are not homogeneous, are unique and work independently of each other. I wish to preface my input with the following stories.
PP: Last week, a destitute family of 17 in Marble Hall moved into their new, fully-furnished, three bedroom house.
PP: I was there when the elders were handed the keys to their new home following my office's intervention.
PP: The joy that was written all over their faces is a sight that will stay with me for a very long time.
PP: Last month, water supply was restored to the house of an indigent 98-year-old granny in Musina after my office was brought in.
PP: This was two months after the municipality cut the supply on the basis of unsubstantiated suspicions that the granny or someone in her household had tampered with the water meter.
PP: The municipality would not reconnect her until she settled a penalty of over R13 000. She could not afford to pay the fine on her old age grant, which is her household's only source of income.
PP: As a result, she was forced to drink and wash courtesy of her next door neighbour, at a fee, until the dispute was resolved.
PP: Recently, a 62-year-old Johannesburg nurse and chronic asthma patient, who, six years ago, contracted the respiratory disease in line of duty and immediately applied for compensation, finally received R200 000 in compensation benefits.
PP: This was after she turned to my office to help resolve the matter.
PP: Lastly, a few months ago, a retired police office in the Free State, who lives with a disability, got 41 years' worth of pension benefits within a month of raising the matter with my office.
PP: The funds had been withheld by the pension authority after the man's wife filed for divorce. During the wait, the man was constantly harassed by creditors who demanded that he meets his financial obligations.
PP: There is something common in these case studies. That is the fact that the affected people would not have had the financial muscle to take the organs of state concerned to court in order to vindicate their rights while also holding state functionaries to account.
PP: The courts are important and critical to the advancement of access to justice but, for a regular person, they are also expensive, sophisticated and take time to settle disputes of bread and butter nature.
PP: This is where an independent constitutional institution such as the Public Protector comes in.
PP: This institution offers a free-of-charge, non-sophisticated and quick access to justice for persons like the destitute Marble Hall family of 17, the 98-year-old granny of Musina, the 62-year-old Johannesburg asthma patient and the retired police officer.
PP: These people (and there are many others) represent a typical Public Protector complainant.
PP: Whereas the news media will have you believe that we spend our entire time setting traps for big political players, trying at all costs to nail them, the truth is that matters such as the four cases above form the bulk of our caseload at any given time.
PP: Such cases never make it into the news because the characters involved are not draw cards and thus cannot sell newspaper copies or draw audiences to television and radio news.
PP: This brings me to the question of the role of the Public Protector as an independent constitutional office or "Chapter Nine" institution.
PP: The Constitution, in section 181, establishes the Public Protector along with a few other institution such the Auditor-General, the Human Rights Commission and the Electoral Commission to strengthen constitutional democracy.
PP: Under this section, the Public Protector is independent and subject to the Constitution and the law, must be impartial and exercise its powers and perform its functions without fear, favor or prejudice.
PP: In addition, other organs of state must support and assist the Public Protecter to ensure its independence, impartiality, dignity and effectiveness.
PP: Further, no person or organ of state may interfere with the functioning of the Public Protector, which account to the National Assembly and must report to the Assembly on their activities at least once a year.
PP: Our investigative powers are drawn from Sec 182 of Constitution, which empowers the PP 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.
PP: Just as court orders bind all persons to whom and organs of state to which they apply, the Public Protector’s remedial action is binding unless set aside by a court of law.
PP: We do not have the power to investigate court decisions. Neither do we have the power to investigate private companies or individuals.
PP: Further, this office must be accessible to all persons and communities.
PP: Any report we issue after investigating any matter must be open to the public unless there are special circumstances that require that such a report be kept under wraps.
PP: Such grounds could be considerations of national security, among other things.
PP: We have additional powers prescribed in terms of national legislation such as the Public Protector Act
PP: The Act empowers PP to investigate undue delays in the delivery of public services; unfair, capricious or discourteous behaviour; abuse of power; abuse of state resources, dishonesty or improper dealings in respect of public money and improper enrichment.
PP: We relied on the provisions of this law, for instance, when we dealt with matters involving the destitute Marble Hall family of 17, the 98-year-old granny of Musina, the 62-year-old Johannesburg asthma patient and the retired police officer.
PP: We also have a corruption mandate in terms of the Prevention and Combating of Corrupt Activities Act.
PP: When we investigate in terms of this law and establish evidence of corruption, which is a criminal offense, we defer to the Directorate for Priority Crime Investigation (DPCI), also known as the Hawks, to take the matter further and bring in the NPA
PP: My office is also a safe haven for whistle-blowers under the Protected Disclosures Act.
PP: It is under this law that we cushion the heroes in government who blow the whistle on wrongdoing from suffering what is called occupation detriment, which could come in a form of retaliation or a backlash from those fingered in the wrongdoing.
PP: We further have exclusive powers to enforce Executive Ethics under the Executive Members’ Ethics Act. This is the piece of legislation whose importance we seek to highlight in a roadshow we have going on.
PP: Under this law, complaints about suspected breaches of the Executive Code of Ethics can only be received from Members of the Executive, Members of Parliament and Members of the Provincial Legislature and can only be investigated by my office and no other forum.
PP: On receipt of such complaints, the Public Protector is obligated to investigate and such investigation ought to be concluded within a month, failing which I must write to the President or the Premier to inform them of the failure to meet that deadline.
PP: It was under this law, for instance, that my office investigated the President for misleading Parliament, the nature of his family’s relationship with Bosasa and the claims of money laundering.
PP: It was also under this law that I found that former Ministers Lynne Brown and Des van Rooyen misled Parliament and thus breached the Executive Code of Ethics, findings which eventually led to their respective release from Cabinet.
PP: Everything we do in the service of the people of South Africa is informed by that Vision 2023, which I referred to earlier, the essence of which to is take the services of this office to people at the grassroots
PP: The establishment of this office and the decision to weave it into our constitutional framework was a masterstroke on the part of our forefathers and mothers.
PP: This office was innovatively established to complement traditional checks and balances of a classical democracy such as parliament, courts, tribunals and commissions of inquiry, to mention but a few.
PP: Above all, it was meant to ensure that there is a more accessible layer of accountability for any excesses in the exercise of state power.
PP: Our first democratically elected President, the late Nelson Mandela, made this point quite clearly when he addressed a regional conference of the International Ombudsman Institute in Durban, 19 years ago.
PP: He explained that this institution, along with others, was built into our constitutional order on the understanding that:
PP: 
PP: Over the years, this office has played its part in entrenching the ethos of good governance and administrative justice in state affairs and continues to do so.
PP: The annual report that we will soon present to the Portfolio Committee on Justice and Correctional Service will show that in the year leading up to 31 March 2019, we were able to finalise 9 912 out of a total workload of 14 147 cases.
PP: These included finalising 30 formal investigation reports, 10 systemic investigations, 100% of cases within specified timeframes and as much matters that have been in the system for two years and more by the end of the financial year.
PP: During that year, we had set for ourselves 18 performance targets, which were four targets more than the preceding year.
PP: These included finalising 30 formal investigation reports, 10 systemic investigations, 100% of cases within specified timeframes and as much matters that have been in the system for two years and more by the end of the financial year.
PP: Other targets included conducting 208 community outreach clinics and 36 radio slots also by financial year end to give effect to the constitutional injunction to be accessible to all person and communities.
PP: The clinics therefore are mass meetings where presentations on the office's mandate are made in vernacular to remote communities. Complaints are also lodged during such outings.
PP: Slots, on the other hand, involve call-in programmes on SABC and community radio platforms, where the message about this institution is spread in vernacular.
PP: We did very well in this regard, achieving 72% of our performance targets — up from 50% in the preceding year.
PP: In this regard, we issued 16 more formal investigation reports than planned and finalised 99% of our caseload within specified timeframes, where we were a percentage point short of achieving our target. We also managed to finalise only 77% of aging cases.
PP: Indeed, these modest achievements are in addition to the office’s successful run since I took over, during which period I dealt with nearly 50 000 matters, finalizing around 70% of those.
PP: Further, I have, since taking the wheel, produced more than 110 formal investigation reports. I will be releasing more next week.
PP: More than 70 of these reports have not been challenged in court and only one report and aspects of two others have to date been set aside by the courts.
PP: One of these reports, which was affirmed by courts during a review, is Mandela Funeral matter.
PP: You would remember we investigated allegations of misappropriation of public funds, improper conduct and maladministration by the EC Provincial Government and several other organs of state in connection with expenditure incurred for the funeral.
PP: The investigation found among other things evidence of widespread irregular, fruitless and wasteful expenditure in the procurement of goods and services for the memorial and funeral.
PP: Such expenditure was found to have failed to meet the test of fairness, equity, transparency, competitiveness and cost-effectiveness.
PP: About 30 others are in the process of review.
PP: With the development of the law over the years, the standing of the Public Protector in the country’s accountability framework has strengthened or weakened, depending on how you look at it.
PP: As indicated earlier, we now make the kind of remedial action that is binding in much the same way as court orders.
PP:
PP: The latter ruling was both a gift and a curse.
PP: A gift in a sense that organs of state could no longer ignore our findings and remedial action, thereby leaving complainants high and dry and a curse in that everyone against who adverse findings have been made now heads to court for review.
PP: Some review applications have no merit and are just an attempt at saving face. The effect of all this is that we end up spending a lot of time in court, defending cases and doing harm to the little resources we have.
PP: Worse, review applications have been weaponised and stigmatized.
PP: Whereas, ordinarily, a review like an appeal is an option available to the aggrieved to try another forum & shouldn’t be seen as indictment on the decision maker in the disputed outcome, in our case, mere applications for review have become a yardstick to measure competence.
PP: And, if the court rules in favour of the applicant of a review, that ruling is waved as proof of incompetence, which boggles the mind because when a judgment is successfully appealed, the judge that would have written it is never accused of incompetence.
PP: There are judges who sent people to long prison terms only for the courts to come back many years later to set the affected inmates free on the grounds that they were wrongly convicted.
PP: Nothing ever happens to such judges. It is said that they have decisional independence and that any action would threaten this independence. But the Public Protector too has decisional independence and yet I get punitive personal cost orders.
PP: I must not be misunderstood. I am not suggesting that my office is the same as a court or that I am the same as a judge. But, if you think about it, the Public Protector is probably the closest thing to a court.
PP: If you look closely enough, you will realise that the Public Protector enjoys the same kind of constitutional protections as the judiciary, including security of tenure.
PP: There is not much difference between sections 165, 174 and 177 under Chapter 8 of the Constitution and 181, 193 and 194 under Chapter 9, which cover the safeguards and guarantees, appointments and removal of judges and Public Protectors, respectively.
PP: This is why I worry when certain people in society see nothing wrong with attacks on institutions such as the Public Protector and yet they are the first to jump when they are of the view that courts are under attack.
PP: Even then, their defence of the courts is conditional. It is dependent on who is doing it. If it is their favourites, they choose to look the other way. When it is their least favourite people, they moralise the loudest about the dangers of wagging a finger at the judiciary.
PP: Some haven’t always attacked the Public Protector. When this institution was seized with investigations such as Nkandla,State Capture, they were adamant that attacks directed at the office at the time were ill-conceived and were to the detriment of our democracy.
PP: Today they sing a different tune merely because they’d prefer that I be derelict and turn a blind eye to requests to investigate certain matters.
PP: And this has to do with the personalities involved. They are prepared to sacrifice the principles of good governance, accountability, transparency and equality before the law on the altar of political expediency.
PP: The only way this democracy is going to be preserved is if there is consistency in holding everybody to account where such accountability is guided by principle rather than love or hate for the personalities involved.
PP: On Friday, the Chief Justice moved swiftly to address what he clearly saw as a concerning trend of maligning certain judges without a shred of evidence.
PP: Everybody has accepted that there is no merit to the claims made against the judicial officers mentioned on Twitter and moved on or at least that is the impression some of us got.
PP: If I am correct, why is it difficult for people to apply the same principle when it comes to the Public Protector.
PP:
PP: For instance, I'm criticized for having investigated President and Minister Gordhan. It is said I am targeting them. The people who peddle this misinformation know very well that these investigations were occasioned by EMEA complaints, which the law compels to investigate.
PP: Keeping with the theme of ethical leadership, the Executive Code of Ethics holds members of the Executive such as Presidents, Deputy Presidents, Ministers, Deputies, Premiers and MECs to very high standards. The code expects them to be angels.
PP: The Executive Ethics Code covers:
PP: Over the years, we have investigated numerous complaints of alleged breaches of the Code of Ethics by members of the executive at both the national and provincial levels of government.
PP:
PP: It was in terms of this Code that I found that former Ministers Lynne Brown and Des van Rooyen misled Parliament and thus breached the Executive Code of Ethics, findings which eventually led to their respective release from Cabinet.
PP: I also relied on this Code to conclude that the former Premier of the Western Cape acted in a manner that inconsistent with her erstwhile office and exposed herself to a risk of a conflict between her official duties and private interest.
PP: This was when she made hurtful statements about colonialism and the whole issue about state property that was used by her son to help matrics.
PP: Despite these facts, people still go on platforms to character assassinate. I am making an example of some of them. The court is seized with the matter in which I have sued the DA over their spy claims. I am also preparing papers to sue Mr. Solly Mapaila of the SACP.
PP: These attacks are not a surprise though. The courts foresaw this as far back as the dawn of our constitutional democracy.
PP: Back then, the Constitutional Court said the Public Protector's security of tenure needed to be safeguarded due to the fact that this office will investigate "sensitive and potentially embarrassing affairs of government".
PP: In 2016 it reiterated that our investigations "are generally bound to attract a very unfriendly response", will probably be "strongly resisted in an attempt to repair or soften the inescapable reputational damage" and "would not be readily welcomed by those investigated".
PP: As we all know, there is a process of formulating the rules of removal for Heads of Chapter Institution in Parliament but we know that the target is the Public Protector.
PP: I'm not worried about that. I believe I will finish my term of office. I will not allow any distractions. My eyes remain fixed on taking the services of this institution to the grassroots.
PP: There are many people with problems similar to those of the destitute Marble Hall family of 17, the 98-year-old granny of Musina, the 62-year-old Johannesburg asthma patient and the retired police officer.
PP: They are waiting for me and my staff to come to their rescue. That is what is important for me. Everything else is a sideshow.
