Who will guard the guardians themselves?

The phrase Quis custodiet ipsos custodes? is from the Roman poet Juvenal’s Satires.  It means “Who will guard the guardians themselves?”, or commonly, “Who polices the police?”  It refers to the accountability of people in power.

Democracies have laws, systems and procedures to hold the powerful in check or deal with abuse of power.  There are Parliament, courts and ombudsman. 

But in South Africa members of Parliament repeatedly failed to prevent the executive’s, government departments’ and state enterprises’ ongoing abuse of power and state resources, showing SA is on a slippery slope to a corrupt, failed state.  (Michael Lingenheld writing in Forbes: “South Africa is the best bet to become a failed state, and almost nobody sees it coming”.  But Clem Sunter, a self-styled “scenario planner”, believes it’s “unlikely at 5-10%”.) 

All that remains are the courts and a pair of credible ombudsman offices, viz, public protector and auditor-general.

The public has nominal access to the courts, but practically it’s only individuals and organisations with money – companies, state employees and bodies and NGOs – that litigate.  The auditor-general has the limited jurisdiction to report on government’s finances.  That leaves the public protector as our hero at the bridge.

Through her “integrity” and fearless and independent investigations of official misconduct and abuse of power and taxpayer resources former Public Protector Thuli Madonsela brought credibility and respect to an organisation that under her predecessors Lawrence Mushwana and Selby Baqwa had languished in near obscurity and irrelevance.

It may be unfair but the perception is they were ineffective dealing with complaints against government and/or were too close to the ANC – they were “pretty soft with government” (Justice Malala).  Whatever the truth, my opinion of the Baqwa-era office is they were useless: they did not reply, not even an acknowledgement of receipt, to a complaint I laid against the City of Cape Town in 1997.

In 2015 Madonsela asked Parliament’s Justice Portfolio Committee for an extra R200m because 166 cases were standing due to a lack of investigators.  I don’t know if the increased case load was a result of her reputation as one who can “save South Africa from itself”, i.e., she was a victim of her own success, or because there were increasing numbers of complaints.  The New York Times article about Madonsela stated the year before she took over the office handled over 19 000 cases.  Five years later the number doubled.  Malala:

“She comes along and starts taking on power and saying, ‘This just isn’t right.’ The Zuma case [Nkandla] gave the office prominence and stature in the popular mind. It’s restored the idea that there’s someone fighting for the little man and woman in a village somewhere.”

So it was partly her reputation, and by association, the gloss on her office that on 26 January 2012 I delivered a complaint to the Western Cape regional office in Cape Town confident it would receive the kind of attention she was renowned for.

According to the public protector’s 2014/2015 annual report, in the year to 31 March 2015 the office “handled” 26 070 cases, of which 15 618 were new and the remainder rolled over from the previous year.  Over 20 000 cases were “finalised”, by which I suppose they mean complaints upheld (49%), not upheld (21%) and no conclusion drawn (30%).   The majority of complaints (26%) were against municipalities (probably reflecting poor service delivery), and were about undue delay (39%), maladministration (26%), etc.

The public protector has 18 provincial and regional offices and a head office in Pretoria. Of the 26 000 complaints, Cape Town has about 2 000 (in 2014).  I believe Cape Town has 28 staff members. If, say, 20 are active investigators, each would manage 100 cases a year or on average eight a month.  Note the public protector also uses contractors, which by this analysis makes investigators’ individual case load manageable.

I know it’s simplistic to look at it this way because as Madonsela said last year, there are too few investigators. Members of the Justice Portfolio didn’t agree with her though, and felt she had sufficient resources. 

If we follow the bell curve, about 25% would be worthy of full investigation.  And of these, the public protector and her team would become personally involved only with the few exceptional cases – the politically sensitive ones with national implications – like Nkandla and state capture. 

Of the notional eight cases a month each investigator handles, only two require full investigation, not including those contracted out.  This is important to my argument about how the office manages complaints and its efficiency and effectiveness.

My complaint to the public protector in 2012 concerned the abuse of power by cabinet members of the Western Cape government over an independent provincial agency, CapeNature (CN), in line with their well-publicised agenda to promote private, commercial interests, and pursuant to threats members of these groups had made at a meeting in Worcester in November 2010 to Premier Helen Zille, Environment MEC Anton Bredell and Agriculture MEC Gerrit van Rensburg to take the law into their own hands.   

It was not only based on allegations pulled from media reports and hearsay.  Supporting evidence included the minutes of a private CN board meeting attended by these ministers and members of the private groups who, at this meeting (and at least one a month before), were part of the decision-making for the policy CN subsequently implemented over much public protest and with no public consultation.

I included a copy of a report that proved CN’s chief executive had misled the public about an “illegal” action performed at the behest of a member of this private group, an action that soon became the forerunner and part of CN’s extreme policy (“protocol”) mentioned above. 

(Note a specialist’s report CN commissioned that at the time they told me they were allegedly not aware of stated the organisation had no mandate to be concerned about commercial interests.)

There is a causal link from the Worcester meeting to CN’s September and October 2011 board meetings (and how many others?) and CN’s adoption of the policy. Zille denied this link and that undue influence had been brought while stoutly defending the private groups’ commercial interests including at the cost of prohibiting three interested and affected persons  access to a related public forum during April 2012 (disclosure: I was one of those denied entry). 

And indirectly, they subjected a senior provincial employee, who in his personal capacity had criticised Zille and her ministers about a matter that was already in the public domain, to a vindictive and ultimately unsuccessful disciplinary charge and process, at great monetary cost to the taxpayer including hiring advocates, of “insubordination” against his putative “employer” Zille.

In public protector-speak my complaint concerned political patronage, abuse of power, maladministration, unlawful and improper prejudice, improper and unfair conduct.  (Similar accusations were recently made against Eskom and SABC et al vis-á-vis their executives’ relationship with a certain family.)

A few months after I delivered my complaint, around May 2012, the regional head of the office, advocate Ruthven Janse van Rensburg, phoned and said my complaint was “politically sensitive” and was to be sent to “head office for further investigation”. I understood there definitely was a case, and it was serious.  (In 2014 I read he had left the public protector and, ironically, took a job at the Western Cape government.)

Soon after this call I phoned the contact person at head office who confirmed the complaint had been given to “contractors” for investigation and a “budget” had been requested for it.  I emailed him thereafter asking for progress, but never heard from him or anyone at the public protector again. 

Around this time I had personal stuff to deal with, which consumed my attention for a while.  The complaint took low priority, but I wondered about it now and again.  I assumed they had probably shelved it. 

On 9 November 2016, almost five years after the complaint, and basically for an unrelated reason (see here), I emailed the public protector’s regional representative in Cape Town, Sune Griessel, asking about its status. 

During a phone call that day and at meeting (at her request) two weeks later, it was revealed to me there was no case file in my name either on the computer register or a physical file (fortunately I had held onto their receipt of complaint from 2012); no case number had been assigned or recorded (I gather, contrary to procedure), and at the time, my letter of complaint had been bundled with a complaint about the same matter from local ANC politician [presumably Max Ozinsky - Editor].

That is, officially my complaint does not exist.

I was surprised and annoyed at this turn of events, and by the apparent incompetence of the office.  While I don’t have a problem if my correspondence was literally attached to an existing file and investigated simultaneously – it’s logical – I was concerned it was treated merely as a footnote, a witness, to another person’s and not on its own merits.

I understood Griessel personally had no knowledge of the case – she had not been working in Cape Town at the time.  But two weeks after I asked for a report about my five-year-old complaint – November 23 – she was still unable to advise me except that in 2012 it was handed to a contractor in 2012 (nothing new there). 

During the hour-long meeting on November 23 she was unwilling or unable to answer questions, including Yes/No ones:

- Was my complaint investigated, and on its own merits, as I was promised in 2012 by two officers, including the then head of the regional office, or was it shelved?

- Were the individuals I named, including MECs, interviewed, and was the evidence (see above) I presented investigated?

- What does “politically sensitive” mean, and what, if anything, does it mean that no case number was assigned (which I had not been previously aware of)?

- If the investigation was completed, was there a finding? If so, what was it?

- Was the ANC politician’s complaint investigated and completed? If so, could I have a copy? 

She promised to report back by the weekend of December 3 but I’ve not heard from her despite emailing reminders (Pretoria copied).

According to her the Cape Town office has done well, as has the public protector generally.   But as I told her in an email, “In terms of the probity former PP Thuli Madonsela was renowned for, why was there this lapse and your [office] apparently abandoning a sensitive investigation, and then failing to inform me about it?” 

I mentioned a complaint (City of Cape Town re. Cape Town Stadium) I’m considering bringing on the advice of the Auditor-General Kimi Makwetu, but there was no response to that either.

It’s not my intention to embarrass Griessel as she didn’t know about the case her predecessor should have properly managed and closed.  Perhaps it’s not his fault either, and the much-vaunted Madonsela and her minions in Pretoria dropped the ball.

But what does this say about their case management competence when case numbers are not assigned, electronic and physical records don’t exist and when cases complainants are told are being investigated disappear without trace? 

Is my case the only one handled this way?  Apparently not because an acquaintance recently told me the public protector had also “badly handled [their complaint] and it dragged on for ages [so] that eventually we dropped it”.  Ironically, this too was against the Western Cape government. 

My acquaintance said: “I find it outrageous when people cite ‘political sensitivity’ as a reason not to investigate!  It gives politicians carte blanche to engage in corrupt activities”.

From these two events should I conclude there’s a pattern of complaints against the Western Cape government being mishandled, or is it simply gross incompetence at the office generally? 

Of the cases “finalised”, how many were bungled?  If I have to guess I’d say this is a frequent occurrence, which these bodies are not reporting (I had a similar experience with the SA Human Rights Commission, and my 1997 complaint to the public protector).

Who will guard the guardians themselves?  As I told Griessel, the public protector itself is “in breach of just administrative action and Batho Pele, among the complaints citizens refer to them”.  If our ultimate protector fails, to whom can we turn to for help?

(I informed Sune Griessel I was writing an article about this experience.)