Public Protector Adv Thuli Madonsela today released seven reports that focused on righting administrative wrongs when there is service failure or maladministration in state affairs.
She also launched the Twitter and Facebook account and gave an update on current investigations The reports are titled: Power to the People, Looking after One’s Own, Above the law, Service Dates, In Search of Access to Justice and They called it Justice. The seventh report titled Final Port of Call was a confidential report.
Power to the People is a report on alleged unfair treatment of a resident by the City of Cape Town involving unfair rejection of the complainant’s claim for compensation after an electrical power failure resulted in her appliances being damaged. The Public Protector found that the City was negligent in that it had failed to take appropriate measures to safeguard and maintain its Kanarieway substation thus failing to comply with section 25 of the Electricity Regulations Act and was therefore negligent. The Public Protector also found that the City’s negligence constituted maladministration and that the complainant suffered prejudice due to the damage caused to her electrical appliances.
The remedial action to be taken is that the City Manager is take to urgent steps to verify and assess the amount of R18 407.98 claimed by the complainant and ensure that an agreement is reached. The claim should be settled within 30 days from the date of the report and the City Manger must also issue a written apology to the complainant for the inconvenience caused by the delay to finalise her matter.
Looking after One’s Own is a report following an investigation of allegations of nepotism regarding the appointment of certain employees and non-compliance with the Employment Equity Plan ant the Drakenstein Local Municipality in the Western Cape.
The Public Protector found that the main allegations regarding improper relationships and favouritism were not substantiated by evidence except in one case. In the case of one Mr AE Endley the Public Protector’s finding was that there was improper conduct in that he got involved in the practical test on his nephew, prior to the interview. This amounted to non-compliance with section 2.3 of the Municipality’s Staffing Policy and Item 4 of the Code of Conduct applicable to municipal staff member found in schedule 2 of the Municipal Systems Act. He was further found to have used his position to improperly benefit another person.
As remedial action, the Public Protector has directed the Municipal Manager to take urgent steps to consider subjecting Mr AE Endley to an internal disciplinary process for acting in breach of the provisions of the staffing policy. The Municipal Manager should also introduce a system for all staff involved with interviews to confirm that they have knowledge of the Staffing Policy to prevent claims of ignorance at a later stage. In addition, the Municipal Manager should ensure that the Municipality’s Staffing Policy is revised to address deficiencies relating to record and document management.
Above the law is a report on allegations of maladministration by Bloemwater involving failure to reinstate an official as recommended by its Internal Appeal Authority and failure to comply with the award of the South African Local Government Bargaining Council (SALGB) and the Labour Courts. The award was that Bloemwater should reinstate the complainant and pay him an amount equal to a 21 month’s salary.
The Public Protector found that Bloemwater failed to reasonably justify its failure to comply with the SALGB award and a court order. While the Public Protector had no problems with the respondent choosing to subject the award to an appeal review, she found that no reasonable steps were taken to pursue such review process. The Public Protector found the delay tactics of Bloemwater to constitute maladministration and further found that such maladministration had prejudiced the complainant as he was unduly kept in limbo without an income for a long time. The Public Protector directed Bloemwater to reinstate the complainant and pay as directed by law.
Service Dates is a report of an investigation relating to alleged incorrect data submitted on the complainants Z102 Pension Withdrawal Form by the Free State Department of Social Development and the Government Pensions Administration Agency (GPAA). She complained that the incorrect data resulted in the incorrect calculation of her pension benefits.
The Public Protector found that complainant was prejudiced by these acts maladministration in that she did not receive her correctly calculated pension benefits with the additional benefit of one third of her pensionable service being added to her actual service in accordance with Rule 14 of the Rules of the Government Employee Pension Fund (GEPF) and an annuity and gratuity in terms of the Rules of the GEPF.
As remedial Action, the Public Protector directed that the Head of the department and the CEO of the GPAA provide the complainant with a letter of apology for the prejudice suffered. The Head of the Department (HOD) must reimburse the complainant for the 240 days sick leave granted and pay the contribution to the GPAA in accordance with GEP law. The HOD must also submit a revised Z102 withdrawal form indicating the additional service period and must state that the complainant retires in terms of Rule 14 with reference to ill-health retirement.
In search of access to justice is a report following a systemic investigation I launched into allegations by prison inmates of undue delays by the Mafikeng Justice Centre in regards to the processing of appeal applications.
The Public Protector found that the complainant had timeously approached the Justice Centre for legal aid with applications to appeal convictions or sentences and that the Justice Centre unduly delayed to process applications for legal aid from the complainants. The Public Protector also found that the Justice Centre failed to provide regular feedback to the complaints and to allocate file reference numbers to complainants. All these amounted to maladministration, which prejudiced the complainants.
As remedial action, the Public Protector directed that the Chief Executive Officer of Legal Aid South Africa (LASA) takes urgent steps to ensure that LASA’s undertakings as detailed in paragraph seven of the report are undertaken. The Justice Centre Principal must ensure that files are not closed prematurely and ensure effective and efficient record management.
The Registrar of the High Court must take appropriate steps to reconstruct records instances where tapes and compact discs are missing.
They Called It Justice is a report following an investigation into maladministration in the handling of a whistle-blower matter resulting in immense prejudice suffered by the whistle-blower in the form of an occupational detriment as envisaged in the Protected Disclosure Act.
The complainant was employed by the Department of Justice and Constitutional Development working within the Finance Division of the Guardian’s Fund in the office of the Master of the KwaZulu-Natal High Court.
The complainant alleged that she was victimised and harassed in the first few months of her employment after discovering that certain colleagues of hers were misappropriating funds from the Guardian’s Fund. These are critical funds that the state manages on behalf of vulnerable persons such as minors who are legally considered as being in no position to manage their own affairs. The misappropriation concerned, which the complainant reported to the management of the Master’s Office and the department, included alleged payment of funds to non-existent beneficiaries; payment of funds to Tracing Agents under the pretext that the beneficiaries were untraceable; and the submission of empty envelopes to beneficiaries while the officials kept the original cheques for themselves. According to the complainant, the department failed to take immediate action against the officials involved in this conduct and such officials took retaliatory action against her.
Initially the Public Protector elected to resolve this matter by way of Alternative Dispute Resolution and also sought advice from the Public Service Commission. During that process the department made an undertaking to reinstate the complainant with effect from 1 March 2010 and transfer her to another office preferable closer to her place of residence. The department further undertook to ensure that the complainant received counselling through its own employee wellness programme.
In the second complaint, the complainant further alleged that as a result of the failure by the department to implement the agreement, she had suffered enormous prejudice, including foreclosure on her house, exacerbated health problems and cancellation of her medical aid. In addition, her children had allegedly been traumatised by this ordeal. At that stage her lights and water were switched off and we intervened to ask for more time.
On 30 January 2013, the Public Protector received a letter from the Director-General advising that she had reconsidered the findings of the Public Protector’s Provisional Report and that the department would take the necessary steps to re-instate the complainant with effect from 1 March 2013.
A re-integration plan regarding the Complainant’s re-integration into the department was submitted on 4 February 2013, indicating the terms of reintegration. This includes options for placement outside the Master of the High Court
While the Public Protector welcomed the willingness of the Director-General to co-operate in this manner to bring an end to the plight suffered by the complainant, the Public Protector has proceeded to make the following findings:
(a) The complainant made a protected disclosure as defined in section 1 of the Protected Disclosures Act on 28 May 2004.
(b) The department’s management failed to protect the complainant against victimisation from her superiors and fellow employees, by ignoring the issues reported by the complainant and failing to take action against employees implicated. As a result, the complainant has suffered occupational detriment as defined in section 1 of the Protected Disclosures Act.
(c) The department’s refusal to transfer the complainant to another office constitutes further “occupational detriment” as defined in section 1 of the Protected Disclosures Act.
(d) The department’s management failed to comply with the sections 2 and 3 of the Protected Disclosures Act which required it to protect the complainant against occupational detriment. This non-compliance amounts maladministration.
(e) The termination of the complainant’s salary by the department and her subsequent dismissal while she was in consultation with medical practitioners appointed by the department contravenes item 10(1) of Schedule 8 to the Labour Relations Act and the PILIR.
(f) The complainant’s dismissal amounts to an automatically unfair dismissal as stipulated in section 4(1) of the Protected Disclosures Act and section 187 of the Labour Relations Act.
(g) In its dismissal of the complainant, the department failed to comply with section 17(1) of Public Service Act, which requires that termination of service or dismissal should be in accordance with the Labour Relations Act.
(h) Failure by the then Director-General to ensure that the provisions of section 17(1) of the Public Service Act were followed prior to and when the complainant’s contract was terminated, amounts to non-compliance with the Public Service Act, the Labour Relations Act, the Protected Disclosures Act and PILIR and thus amounts to maladministration.
(i) The Director-General failed to ensure that the terms of the settlement agreement entered into with the Public Protector were implemented, and this amounts to a violation of section 181(3) of the Constitution and the Public Protector Act.
(j) As a result of maladministration by the department, the complainant suffered enormous prejudice, including foreclosure on her house, exacerbated health problems and cancellation of her medical aid. Her children have also been traumatised by the situation. The treatment received by the complainant was not in line with the value of human dignity as provided for in the Constitution.
The Public Protector’s decision on remedial action takes into account action package offered by the Department on 30 January 2013. The remedial action required is that the Minister and the Director-General of the department must take urgent steps to ensure that the undertakings made by the department to re-integrate the Complainant is implemented within 30 days from the date of this report.
The Deputy Public Protector, Adv Kevin Malunga shared success stories from the Early Resolution Branch. The Early Resolution matters are resolved through Alternative Dispute Resolution and are cases that the Public Protector calls “bread and butter” matters. These are the cases that need to be resolved with speed because complainants in such cases are often on the verge of losing their houses or sources of income unless the Public Protector’s office steps in to help.