Public Protector Advocate Thuli Madonsela welcomes Parliament's positive response to her July request for investigation into various anonymous allegations against her and her office
14 Oct 2012
Public Protector Advocate Thuli Madonsela has welcomed Parliament's decision to assign the Justice Portfolio Committee to look into various allegations against her and her office made in an anonymous letter received by her in July 2012 and sent by her to Parliament in July 2012 together with her response to the allegations and request for a conclusive investigation into the matter (see Sunday Times report).
On Saturday 13 October 2012, the Public Protector learnt officially from the Deputy Public Protector (DPP) with much surprise that the DPP had been one of those sending letters to Parliament. She found this surprising given that the DPP and all staff were aware that an undertaking had been made to Parliament and the people of South Africa that a response was being prepared for submission to Parliament, following the Public Protector's receipt of an anonymous letter meant for the Chairperson of the Select Committee on Public Accounts (SCOPA) Committee the anonymous letter.
The Public Protector is grateful to the Sunday Times for giving her the right of reply before publishing the story and for integrating some of the written responses her office sent, in the final story published on Sunday 14 October 2012. To set the record straight and help the people of South Africa understand the full context, the Public Protector has decided on a full statement on the matter.
a) It is not true that the Public Protector changed findings on the Midvaal report willy-nilly. The statement that the report was delayed until after the local government elections is misleading and malicious. The truth is the Public Protector entered the scene at a stage where a draft report dismissing all allegations had been prepared. It was under the Public Protector's supervision that a more thorough investigation was done and many allegations substantiated. The need for a thorough investigation led to the delay in issuing the report. In terms of the Constitution and the law, any investigation report from the Public Protector South Africa is that of the Public Protector. The Public Protector was then within her powers to quality-assure the report before releasing it to the public.
b) The statement that the Public Protector did not act against a senior executive who was facing a fraud charge for allegedly forging the Deputy Public Protector's signature is false. The Deputy Public Protector has never before denied signing the document at the centre of this allegation. In addition, the Public Protector, acting on the advice of the internal Human Resources Branch enlisted the services of the Inspector General of Intelligence, Advocate Faith Radebe, to investigate the matter. In August 2012, Advocate Radebe cleared the executive in question of any wrongdoing. In fact it was the Public Protector's intervention that made the payment an issue and the Public Protector who insisted on the money being paid back, which was done by 31 March 2012. It is therefore dishonest to claim that the Public Protector did not take action against the said executive.
c) The Public Protector never changed the recommendations of the Good Governance and Integrity Committee (GGIC). The Deputy Public Protector gave the Public Protector a document purporting to be from an Ad hoc Good Governance Committee, a structure that doers not exist, purporting to be submitting a report that was never commissioned by the Public Protector or the Executive Committee (EXCO) of the Public Protector. The Public Protector never changed the recommendations of the DPP in the said document, which were simply that the Public Protector should ask Parliament to investigate herself and the CEO. The Public Protector's view was that Parliament was already seized with the matter and all that was required from the Public Protector was a response by the Public Protector as promised to the Deputy Speaker in January 2012 and further announced at a media briefing in March 2012.
d) In December 2011/January 2012 the Public Protector received a letter purporting to be from anonymous and sent to her by one Dominee Walters, who had accidentally received it through the post, and which was addressed to the Hon Themba Godi, Chairperson of SCOPA. On receipt of the letter, which contained various allegations against her and her office, the Public Protector immediately caused the appointment of a Task Team to verify the allegations. She also informally advised the Deputy Speaker of Parliament about receipt of the letter and the action she had taken to prepare a response which she undertook to submit to the Speaker's Office shortly.
e) By the time the contents of the anonymous letter were published by a daily newspaper in March 2012, the Task Team had already prepared a preliminary report, whose contents were partially shared by the Public Protector at a media briefing called by her in Muldersdrifton the date the article was released, to address the anonymous allegations. At the same media briefing she advised that she had informally advised the Deputy Speaker of Parliament about the anonymous letter and the process she had initiated to find answers. She further undertook to finalise the report of the Task Team and submit same to Parliament even though Parliament had not asked for it.
f) The Task Team submitted the report to the Public Protector on 18 April 2012.The report had gaps on matters the Task Team could not address. The Public Protector forwarded the draft report to the Deputy Public Protector and her Chief of Staff, asking that the gaps be filled and that the report be referred to a Sub-Committee of the Good Governance and Integrity Committee(GGIC) with a view to submit to Parliament by 28 April 2012. After that the Public Protector reported on this action to her office's Executive Committee (EXCO) and EXCO endorsed the arrangement. At the Public Protector's recommendation, there was a specific requirement that the Audit Committee Member of the GGIC forms part of the GGIC Sub-Committee. The idea was to quality assure the report before submission to Parliament.
g) Around 21 June following many reminders regarding the need for a completed report for submission to Parliament, the Public Protector received a document from the Deputy Public Protector purporting to be the Report of an Ad-hoc Good Governance and Integrity Committee. The report was not a quality assured version of the Task Team's report as expected in the light of the Public Protector's request of 18 April, which had been endorsed by EXCO. Instead, the purported Ad-hoc Committee had prepared its own new document which simply divided the allegations in the anonymous letter into two categories, those against the Public Protector and those against the Chief Executive Officer (CEO), even though many of the anonymous complaints had not been directed against any specific individual. Some of the provisions of the document differed from the original allegations it purported to analyse. The document also asked the Public Protector to ask Parliament to investigate herself and the CEO on the basis of the allegations.
h) The Public Protector expressed concern that this process had undermined her ability to timeously provide the answers she had promised to Parliament and the People of South Africa as she was not able to do so as the Draft report of the Task Team remained incomplete and not quality assured by a Subcommittee of the GGIC as per hers and EXCO's directive. She raised her concerns with the Deputy Public Protector, including concerns over the structure that purportedly prepared the report, instead of a subcommittee of the Good Governance and Integrity Committee as she had directed, with EXCO later concurring. This was the source of the dispute regarding what really had been the EXCO decision on this matter, leading to EXCO deciding at the request of the Public Protector that the audio record and transcript of the proceedings of the disputed EXCO decision be circulated among EXCO members. All EXCO members at the time agreed with the Public Protector's version. When this was done, audio recording and transcription- confirmed the Public Protector's version, which had until then been shared by EXCO members.
i) In July 2012, the Public Protector sent a comprehensive response addressing the allegations from the anonymous letter to the Speaker's Office in Parliament asking that the response be shared with the Chairperson of SCOPA, Mr Themba Godi. The covering letter specifically requested Parliament to investigate the matter conclusively as these continuous anonymous letters were destabilising and distracting my office. Attached, as annexures to the response, were (a) the Anonymous letter addressed to the Chairperson of SCOPA and received by the Public Protector from Dominee Walters, (b) the Document submitted by the Deputy Public Protector, purporting to be a report of an Ad Hoc Committee of the GGIC. It needs be noted that this was not a document of the GGIC or that of a subcommittee of the GGIC. It must be further noted that the members were not GGIC Committee members with the exception of the Deputy Public Protector and that although the name of the external member of the GGIC appeared in the document, the Deputy Public Protector later confirmed that this person, who is also a member of the Audit Committee was never involved.
Regarding specific allegations in the article:
j) It is not true that the Public Protector takes up cases that fall outside her remit. As indicated to the Justice and Constitutional Development Portfolio Committee during the presentation of the Public Protector's Annual Report on 12 October 2012, the Public Protector has a thorough assessment process which is informed by section 182 of the Constitution read with legislation regulating the work of the PP and conferring additional powers, with the Public Protector Act and the Executive Ethics Act being key among relevant legislation. Should anyone know of a case the Public Protector took that is outside her jurisdiction, the PP eagerly awaits such information. All incoming complaints are subjected to an internal assessment process, which ascertains jurisdiction and whether there is any merit to the allegations contained in the complaints. The Public Protector would welcome any evidence to the contrary.
k) The decision to contract out certain investigations towards the end of the 2011/12 with a view to addressing a heavy investigation backlog was taken via EXCO, the memo system and in consultation with Treasury. All of the key decisions alluded to in the anonymous letter were also taken via the EXCO and memo governance mechanisms and Parliament has been furnished with evidence. The Public Protector would appreciate any evidence of any unilateral decision she is supposed to have made.
l) Regarding the alleged "Hollywood style" approach to investigations, the Public Protector releases all of my reports publicly regardless of subject matter or parties involved. The law requires all Public Protector reports to be released to the public unless there are compelling circumstances for keeping the report secret. The Public Protector has only been able to find such compelling circumstances in a Witness Protection report. That accordingly is the only report what has not been disseminated to the Public. Again if there is any report that someone believes should have been kept secret, the PP would be happy to entertain that feedback. Investigations on the other hand are conducted on the basis of confidentiality. The Public Protector only confirms receipt and contents of allegations when complainants have informed the media about their lodging of a complaint and the media asks for such confirmation. Media dialogue on Public Protector investigations and reports is essential for the moral suasion critical for Public Protector to make the necessary impact as a non- judicial enforcement mechanism regarding the fairness and propriety of administrative actions of the state.
m) The Public Protector is not aware of any constructive criticism she was dismissive of. The only matter she disagreed with the approach is the formation of a purported Ad Hoc Committee outside the governance arrangements of the Public Protector SA and the failure to complete a simple task of filling in the gaps in and quality assuring a report that had to be urgently submitted to Parliament in pursuit of her undertaking to the Deputy Speaker in January 2012 and the media in March 2012.
The Public Protector wishes to place on record the fact that all key decisions in the Public Protector SA are made through a memo system that originates from a relevant technical unit and goes through the Chief Financial Officer, the CEO and the DPP. This applies to many of the decisions that are contested in the anonymous letter. Other decisions are made through EXCO and later confirmed through an internal memo. The Public Protector will welcome any evidence of unilateral decisions.
The Public Protector welcomes the Parliamentary process and will cooperate with the investigation. Already a comprehensive report with supporting documents, including memoranda, was submitted to Parliament in July. The Deputy Public Protector's Ad hoc Committee document was also submitted with the same package which included a request that Parliament investigates the matter conclusively so that there may be closure and her office focuses on the work it was established to do.
Statement issued by the Public Protector South Africa, October 14 2012
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