| South Africa : Integrity Scorecard Report > Sub-Category: National Ombudsman | ||
| Indicators | Score | |
| 55 | Is there a national ombudsman, public protector or equivalent agency (or collection of agencies) covering the entire public sector? | 100 |
| 56 | Is the national ombudsman effective? | 82 |
| 57 | Can citizens access the reports of the ombudsman? | 83 |
Indicator and sub-Indicator Details
| 55 | Is there a national ombudsman, public protector or equivalent agency (or collection of agencies) covering the entire public sector? | |||||||
| 55: In law, is there a national ombudsman, public protector or equivalent agency (or collection of agencies) covering the entire public sector? | ||||||||
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Comments: Chapter Nine of the Constitution provides for the Office of the Public Protector. In terms of section 182, the office has the power to investigate any conduct in state affairs or in the public administration in any sphere of government that is alleged or suspected to be improper or to result in impropriety or prejudice. The office may then report on that conduct and to take appropriate remedial action. The mandate and powers of the public protector are expanded on in the Public Protector Act. References: The Constitution of the Republic of South Africa Act (Act 108 of 1996). Available at: [ LINK ] Public Protector Act (Act 23 of 1994). Available at: [ LINK ]
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| 56 | Is the national ombudsman effective? | |||||||
| 56a: In law, the ombudsman is protected from political interference. | ||||||||
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Comments: Chapter 9 of the Constitution establishes a number of state institutions supporting constitutional democracy, including the Public Protector. All Chapter 9 institutions must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice, according to Section 181(2). Section 181(4) states that no person or organ of state , which includes Parliament (Section 239), may interfere with the functioning of the office of the Public Protector. Section 181(3) requires other organs of state, through legislative and other measures to protect these institutions to ensure [their] independence , including in the processes of appointment and removal from office. Section 193 specifies that the President of the Republic must appoint the Public Protector, on recommendation of the National Assembly. The National Assembly, in turn, must recommend candidates who are nominated by a committee of the Assembly proportionally composed of members of all parties represented in the Assembly . Nominations must be approved by the Assembly by a resolution adopted with a supporting vote of at least 60 per cent of the members of the Assembly . The appointment of the Deputy Public Protector is also determined in Parliament, but requires only a majority in the National Assembly. Similarly, in terms of section 194(1), the Public Protector may be removed from office only on (a) the ground of misconduct, incapacity or incompetence; (b) a finding to that effect by a committee of the National Assembly; and (c) the adoption by the Assembly of a resolution calling for that person's removal from office. The Public Protector Act (Act 23 of 1994) also specifies that the Public Protector may be appointed among past or present Members of Parliament with demonstrated experience in the administration of justice. Both the Public Protector and Deputy Public Protector serve for a seven-year, non-renewable term. References: Constitution of the Republic of South Africa Act (Act 108 of 1996). Available at: [ LINK ] Public Protector Act (Act 23 of 1994). Available at: [ LINK ]
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| 56b: In practice, the ombudsman is protected from political interference. | ||||||||
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Comments: In law, a strong framework exists to guarantee the Public Protector freedom from political interference, as captured in Chapter 9 of the Constitution and the Public Protector Act (Act 23 of 1994). Chapter 9 specifies that all state institutions supporting constitutional democracy, including the Public Protector, must be impartial and must exercise their powers and perform their functions without fear, favor or prejudice. Section 181(4) states that no person or organ of state , which includes Parliament (Section 239), may interfere with the functioning of the office of the Public Protector. Section 181(3) also requires other organs of state, through legislative and other measures to protect these institutions to ensure [their] independence , including in the processes of appointment and removal from office. The Constitution also includes specific provisions around the nomination, appointment, tenure, and potential dismissal of the Public Protector, as well as the Deputy Public Protector. Section 193 specifies that the President of the Republic must appoint the Public Protector, on recommendation of the National Assembly. The National Assembly, in turn, must recommend candidates who are nominated by a committee of the Assembly proportionally composed of members of all parties represented in the Assembly . Nominations must be approved by the Assembly by a resolution adopted with a supporting vote of at least 60 per cent of the members of the Assembly . The appointment of the Deputy Public Protector is also determined in Parliament, but requires only a majority in the National Assembly. Similarly, in terms of section 194(1), the Public Protector may be removed from office only on (a) the ground of misconduct, incapacity or incompetence; (b) a finding to that effect by a committee of the National Assembly; and (c) the adoption by the Assembly of a resolution calling for that person's removal from office. The Public Protector Act (Act 23 of 1994) also specifies that the Public Protector may be appointed among past or present Members of Parliament with demonstrated experience. Both the Public Protector and Deputy Public Protector serve for a seven-year, non-renewable term. However, a 2007 Parliamentary Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions also found that the qualifications required of the Public Protector are extensive and broad and do not compare with those for other Chapter 9 institutions , beyond which the criteria have, in any event not really been applied . The Committee noted that in practice, appointment turns largely on having legal qualifications, or experience in the administration of justice. The current Public Protector, Lawrence Mushwana, was appointed from among the ruling African National Congress (ANC) parliamentary caucus. This fact, along with the appearance of undue leniency towards the ANC, has led to some perceptions of political bias or favoritism. Critics often cite Mushwana's investigation into then-Deputy President Phumzile Mlambo-Ngcuka's trip to the United Arab Emirates, and to what has become known as the Oilgate affair , as evidence of political influence over the Public Protector. In 2004, the media reported that PetroSA, a major public entity involved in trading crude oil had advanced R15 million (US$1.5million) in 2003 to privately-owned black economic empowerment company, Imvume Management. Imvume was contracted to provide oil condensate for its operations, but instead of paying its supplier, reportedly diverted R11 million (US$1.1 million) to the ANC. Subsequently, PetroSA repeated the payment to Imvume's supplier, resulting in a further loss of public funds. The Public Protector was then requested to investigate accusations of collusion between PetroSA and Imvume. However, controversially Mushwana found that there was no misconduct or maladministration by PetroSA or any other public official, and that the R15 million lost its designation as public money when it was paid by PetroSA, and was thus beyond his jurisdiction. Critics suggested that this unduly and artificially narrow interpretation of his mandate was motivated by a desire not to offend important political interests. However, more recently the Public Protector has made a number of significant negative reports, for example, related to then-Minister of Public Service and Administration Geraldine Fraser-Moleketi's failure to disclose a gift, and possible contempt of court on the part of former Health Minister Manto Tshabalala-Msimang. These cases suggest that, while the possibility of political interference exists, it is not necessarily the case in practice. The extent to which any of these rulings may be the result of direct or active interference , or perceptions of pressure, expectations or inclination, is unclear. References: Calland, R., 2005. Dismal. Depressing. Disingenuous. Mail & Guardian, Aug. 8, 2005. Available at: [ LINK ] Constitution of the Republic of South Africa Act (Act 108 of 1996). Available at: [ LINK ] Parliamentary Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions, 2007. Report of the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions: A report to the National Assembly of the Parliament of South Africa . Available at: [ LINK ] Public Protector, 2008. Reports Nos. 6 and 7 of 2008/9, May 16, 2008. Both available at [ LINK ] Public Protector Act (Act 23 of 1994). Available at: [ LINK ] SAPA, 2008. Manto may be in contempt of court, says Public Protector Mail & Guardian, May 21, 2008. Available at: [ LINK ]
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| 56c: In practice, the head of the ombudsman agency/entity is protected from removal without relevant justification. | ||||||||
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Comments: Sections 183 and 194 of the Constitution stipulates that the Public Protector is appointed for a fixed, non-renewable term of seven years, and that the Public Protector may be removed from office only on the grounds of misconduct, incapacity or incompetence. This has not occurred to date.
References: Constitution of the Republic of South Africa (Act 108 of 1996). Available at: [ LINK ] Interview with Gary Pienaar, Senior Researcher: Public Ethics, Institute for Democracy in South Africa, and recent Western Cape Provincial manager of the Office of the Public Protector, Aug. 25, 2008, Cape Town. Parliament, 2007. Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions , July 31, 2007. Available at: [ LINK ]
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| 56d: In practice, the ombudsman agency (or agencies) has a professional, full-time staff. | ||||||||
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Comments: The Public Protector has a full-time staff of about 205 of 238 available posts, with a reduction in vacancy rate from 32 percent to 13,9 percent. The Office has shown improved performance by reducing the number of its backlogged cases. However, the Ad hoc Committee's Report expresses concern at the lengthy vacancies in senior posts, specifically those of chief financial officer and chief executive officer, saying that these seriously impinged on the operations of the Office.
References: Public Protector Act (Act 23 of 1994). Available at: htp://www.publicprotector.org Public Protector, 2007. Annual Report of the Public Protector 2006/07 . Available at: [ LINK ] Parliament, 2007. Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions , July 31, 2007. Available at: [ LINK ]
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| 56e: In practice, agency appointments support the independence of the ombudsman agency (or agencies). | ||||||||
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Comments: Chapter 9 of the Constitution establishes a number of state institutions supporting constitutional democracy, including the Public Protector. All Chapter 9 institutions must be impartial and must exercise their powers and perform their functions without fear, favor or prejudice, according to Section 181(2). Section 181(4) states that no person or organ of state , which includes Parliament (Section 239), may interfere with the functioning of the office of the Public Protector. Section 181(3) requires other organs of state, through legislative and other measures, which includes the appointment and removal process, to protect these institutions to ensure [their] independence. Consequently, section 193 provides that Public Protector must be appointed by the President on the recommendation nominated by a supporting vote by the National Assembly of at least 60 percent of its members. The appointment of the Deputy Public Protector is also determined in Parliament, but requires only a majority in the National Assembly. Similarly, in terms of section 194(1), the Public Protector may be removed from office only on (a) the ground of misconduct, incapacity or incompetence; (b) a finding to that effect by a committee of the National Assembly; and (c) the adoption by the Assembly of a resolution calling for that person's removal from office. Subsection 194(2) provides that such resolution must be passed with a supporting vote of at least two thirds of the members of the Assembly . However, in terms of section 1A(3)(e) of the Public Protector Act, the Public Protector can be appointed from among past or present members of Parliament, based on experience. Both the Public Protector and Deputy Public Protector serve for a seven-year, non-renewable term. Generally, appointments have supported the independence of the Office. While some allegations of political favoritism have been lodged against current Public Protector Lawrence Mushwana, the negative findings of investigations into senior politicians, including former the former Minister of Public Service and Administration Geraldine Fraser-Moleketi and former Health Minister Manto Tshabalala-Msimang, are also cited as evidence of the independence and impartiality of the office. Within the Office of the Public Protector, relatively few vacant posts exist and critical senior positions, such as that of the Chief Financial Officer (CFO) and Chief Executive Officer (CEO), have been filled. Generally, appointments of investigators are based on relevant qualifications and competence. Political affiliations or sympathies play no evident role in appointments. In some cases, investigators have been appointed and promoted despite backgrounds that include affiliation with parties other than the ruling party. Nor have political considerations played an overt role in formal case discussions among senior managers. Recently, however, the quality and quantity of applicants for advertised investigators posts has declined significantly. It is unclear whether this is a result of market scarcity and remuneration differentials, or any perceptions regarding politicization of the institution, or a combination of these factors. In addition, a 2007 Parliamentary Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions also found that the qualifications required of the Public Protector are extensive and borad and do not compare with those for other Chapter 9 institutions , beyond which the criteria have, in any event not really been applied . The Committee noted that in practice, appointment turns largely on having legal qualifications, or experience in the administration of justice. References: Calland, R., 2005. Dismal. Depressing. Disingenuous. Mail & Guardian, Aug. 8, 2005. Available at: [ LINK ] Constitution of the Republic of South Africa Act (Act 108 of 1996). Available at: [ LINK ] Interview with Gary Pienaar, Senior Researcher: Public Ethics, Institute for Democracy in South Africa, and recent Western Cape Provincial manager of the Office of the Public Protector, Aug. 25, 2008, Cape Town. Parliamentary Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions, 2007. Report of the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions: A report to the National Assembly of the Parliament of South Africa . Available at: [ LINK ] Public Protector, 2007. Annual Report of the Public Protector 2006/07 . Available at: [ LINK ] SAPA, 2008. Manto may be in contempt of court, says Public Protector Mail & Guardian, May 21, 2008. Available at: [ LINK ]
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| 56f: In practice, the ombudsman agency (or agencies) receives regular funding. | ||||||||
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Comments: The Public Protector's office receives an annual budget, allocated through the Department of Justice and approved by a vote in Parliament. The budget was R59, 238 million (US$5.9 million) for the 2005/06 financial year, R68,304m (US6.8 million) in 2006/7, R78,722m (US$7.8 million) in 2007/8, and R86.475 million (US$8.6 million) for 2008/09.
References: Public Protector, 2007. Annual Report of the Public Protector 2006/7 . Available at: [ LINK ] Parliament, 2007. Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions , July 31, 2007. Available at [ LINK ] National Treasury, 2008. Estimates of National Expenditure 2008 , National Treasury. Available at: [ LINK ]
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| 56g: In practice, the ombudsman agency (or agencies) makes publicly available reports. | ||||||||
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Comments: Reports are routinely furnished to complainants and to the organ of state complained against. While the Public Protector may declare all or part of a report confidential, this is extremely rare and reports are usually freely available on request from the office. Most significant reports are published on the Public Protector's web site. References: Public Protector, 2008. Investigation Reports. Available at: [ LINK ] Interview with Gary Pienaar, Senior Researcher: Public Ethics, Institute for Democracy in South Africa, and recent Western Cape Provincial manager of the Office of the Public Protector, Aug. 25, 2008, Cape Town.
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| 56h: In practice, when necessary, the national ombudsman (or equivalent agency or agencies) initiates investigations. | ||||||||
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Comments: Due primarily to a caseload backlog and some uncertainty regarding the interpretation and application of the Office's mandate, relatively few own initiative investigations have been initiated, viz. 41 during the period 2002/3 to 2006/7. Very few of these involved contentious issues. Parliament's investigation expressed concern at the underutilization of this important power. References: Public Protector, 2007. Annual Report of the Public Protector 2006/7 . Available at: [ LINK ] Parliament, 2007. Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions , July 31, 2007. Available at: [ LINK ] Interview with Gary Pienaar, Senior Researcher: Public Ethics, Institute for Democracy in South Africa, and recent Western Cape Provincial manager of the Office of the Public Protector, Aug. 25, 2008, Cape Town.
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| 56i: In practice, when necessary, the national ombudsman (or equivalent agency or agencies) imposes penalties on offenders. | ||||||||
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Comments: In terms of its constitutive and empowering legislation, the Public Protector may not impose penalties on offenders, but can, in terms of the Constitution, take appropriate remedial action. This usually takes the form of facilitated resolution of complaints, and informal or formal recommendations. Most recommendations are complied with by the organs of state concerned. Comparable institutions in several other developing countries are empowered to enforce compliance with their findings.
References: Public Protector Act (Act 23 of 1994). Available at: [ LINK ]" target="_blank">[ LINK ] Public Protector, 2007. Annual Report of the Public Protector 2006/7 . Available at: http://www.publicprotector.org Interview with Gary Pienaar, Senior Researcher: Public Ethics, Institute for Democracy in South Africa, and recent Western Cape Provincial manager of the Office of the Public Protector, Aug. 25, 2008, Cape Town.
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| 56j: In practice, the government acts on the findings of the ombudsman agency (or agencies). | ||||||||
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Comments: Most recommendations are complied with by the organs of state concerned. On the other hand, critics argue that this compliance rate is a function of the Public Protector's failure to make negative findings in hard or contentious cases. References: Public Protector, 2007. Annual Report of the Public Protector 2006/7 . Available at: [ LINK ] Interview with Gary Pienaar, Senior Researcher: Public Ethics, Institute for Democracy in South Africa, and recent Western Cape Provincial manager of the Office of the Public Protector, Aug. 25, 2008, Cape Town.
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| 56k: In practice, the ombudsman agency (or agencies) acts on citizen complaints within a reasonable time period. | ||||||||
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Comments: The Public Protector's office is making progress in its efforts to reduce the turnaround time within which it finalizes investigation of complaints. During the 2006/7 financial year, 72 percent of complaints were resolved within six months, 15 percent took seven to 12 months, 8 percent took 13-24 months, and 5 percent took more than two years to finalize.
References: Public Protector, 2007. Annual Report of the Public Protector 2006/7 . Available at: [ LINK ] Parliament, 2007. Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions , July 31, 2007 . Available at: [ LINK ] Interview with Gary Pienaar, Senior Researcher: Public Ethics, Institute for Democracy in South Africa, and recent Western Cape Provincial manager of the Office of the Public Protector, Aug. 25, 2008, Cape Town.
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| 57 | Can citizens access the reports of the ombudsman? | |||||||
| 57a: In law, citizens can access reports of the ombudsman(s). | ||||||||
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Comments: The Constitution, read with the Public Protector Act, require reports to be open to the public unless circumstances dictate complete or partial confidentiality.
References: Constitution of the Republic of South Africa (Act 108 of 1996). Available at: [ LINK ] Public Protector Act (Act 23 of 1994). Available at: [ LINK ]
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| 57b: In practice, citizens can access the reports of the ombudsman(s) within a reasonable time period. | ||||||||
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Comments: Complainants receive a copy of the investigation report as a matter of routine and promptly after completion of the investigation. Most high-profile or significant reports are posted on the web site periodically. However, requests by third party members of the public for hard copies of reports are not always responded to promptly, as the Office does not yet have a proper information classification and management system, and associated procedures.
References: Public Protector's reports. Available at: [ LINK ] Interview with Gary Pienaar, Senior Researcher: Public Ethics, Institute for Democracy in South Africa, and recent Western Cape Provincial manager of the Office of the Public Protector, Aug. 25, 2008, Cape Town.
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| 57c: In practice, citizens can access the reports of the ombudsman(s) at a reasonable cost. | ||||||||
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Comments: Complainants receive a copy of the investigation report as a matter of routine after completion of the investigation. Most high-profile or significant reports are posted on the web site periodically and can be accessed without charge. Requests by third party members of the public for hard copies of a small or reasonable number or reports are acceded to without charge.
References: Public Protector's reports. Available at: [ LINK ] Interview with Gary Pienaar, Senior Researcher: Public Ethics, Institute for Democracy in South Africa, and recent Western Cape Provincial manager of the Office of the Public Protector, Aug. 25, 2008, Cape Town.
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