Thuli Madonsela’s tenure at the helm of the office of the public protector of South Africa has significantly raised the profile of the institution. This was mainly due to several high profile and controversial cases being referred to the office for investigation and adjudication.
The cases that received extensive media coverage included investigations into irregular spending and expenditure in government departments. There was also extensive coverage of an investigation into the Passenger Rail Agency of South Africa (Prasa), as well as the probe into “state capture”.
But, far from the limelight, the public protector has also been instrumental in assisting individuals who grapple with unfair treatment from government departments and other public institutions. The office does lesser-known, yet equally important work.
The annual report of 2015-16 indicates the office received 17,374 cases, finalised 12,735, and carried over 4,251 to the next year. The remainder were either referred to other institutions or dismissed. In the previous year the office finalised 20,231 cases out of a total caseload of 26,070, while 2,740 complaints were referred to other competent bodies such as the Public Service Commission.
Defending people’s rights
The key function of the public protector is to promote good governance and access to justice for the poorest people. The office acts as a defender of people’s rights against the abuses of public office, corruption, mismanagement and negligence.
The office is one of the bodies established to strengthen South Africa’s constitutional democracy, known as Chapter 9 institutions.
In executing this mandate, the public protector handled a variety of concerns. In 2015-16, these included:
intervening in the deadly conflict at Glebelands Hostel in Umlazi, Kwa-Zulu Natal. Although the investigations are ongoing, the pffice of the public protector identified the source of the conflict. It notified the premier of Kwa-Zulu Natal, averting the further loss of lives;
remedying the improper awarding of a construction tender and addressing allegations of irregular payments in a government housing project in Uitenhage, Port Elizabeth. The public protector’s investigation found that the tender had been irregularly awarded. The municipality was instructed to pay the outstanding amount, with interest, within 30 days and apologise in writing to the complainant;
resolving a complaint lodged by a student against the University of Pretoria for maladministration and the reporting of inconsistent examination marks for a special examination written by the complainant. The complaint was subsequently resolved following intervention by the public protector. The complainant’s scripts were remarked and a letter of apology was issued by the university; and
a complaint was lodged against a local municipality for undue delay. The municipality was negligent in processing the documentation relating to the payment of the deceased employee’s benefits. The public protector directed the municipality to compensate the deceased’s family for the financial losses incurred.
Weaknesses in the system
The public protector has an obligation to be accessible to people who have limited access to justice and cannot afford lengthy and expensive court cases.
However, there are some gaps in how its work is reported. For example, it would be useful to have data relating to the socioeconomic profile of the complainants. This would help tackle barriers to accessing the office through properly targeted public outreach programs.
Also, it is not clear from the report what structures are in place to address accessibility because of language limitations and disability. The report itself raises concerns about gender disparities. Only one-third of complainants were women.
There were some challenges noted, with regard to the operating of the office. The report highlighted the issue of inadequate funding, which has so far resulted in the closure of five regional offices in Siyabuswa, New Castle, Vryburg, Vryheid and Port Elizabeth. Another problem is insufficient personnel. Only 89% of positions are filled.
Human resources constraints should not be tolerated, particularly in light of the increased demands being placed on the institution.
To supplement funds, the previous public protector secured $US500,000 from the US Agency for International Development. The funding was allocated for the creation of a case management system in collaboration with the Deutsche Gesellschaft fur Zusammenarbeit. To ensure transparency, the funds were dispensed through the Department of Justice and Constitutional Development, which exercises oversight of the public protector’s budget.
This funding has been heavily criticised by some parliamentarians, arguing that it could potentially compromise the independence of the institution and the sovereignty of the country. The new public protector, Busisiwe Mkhwebane, has said the office would not use donor funding in the future.
But donor funding should not necessarily be rejected. The institution can receive donor funding that bolsters its ability to carry out its mandate within the parameters prescribed by the constitution. To tackle fears of undue influence, safeguards could be built in including a requirement that funding is dispensed through the National Treasury.
The office of the public protector plays a vital role in safeguarding the values of a constitutional democracy. Despite its shortcomings, it has executed its mandate well under Madonsela. It has cemented itself as one of the most independent and effective public institutions in South Africa. Its continued success will depend on the political will of those charged with ensuring it is adequately funded.