Rules Relating to Public Protector Investigations

1. PUBLIC PROTECTOR ACT NO. 23 0F 1994: RULES RELATING TO INVESTIGATIONS BY THE PUBLIC PROTECTOR AND INCIDENTAL MATTERS Presentation to Portfolio Committee on Justice and Constitutional development AdV T Madonsela Public Protector South Africa & Adv M SHAI Deputy Public Protector of South Africa 28 February 2011

2. Vision behind the Rules • To promote • Consistency • Transparency • Collaboration; and • The provision of information • With the view to ensure cooperation with organs of state (as defined in section 239 of the Constitution) and any institution and entity referred to in section 6(5)(a) of the Public Protector Act

3. Background • The Public Protector may, in terms of 7[11], Public Protector Act make Rules • In respect of matters referred to in sect. 7 which has a bearing on & are incidental to investigations by the Public Protector. • Although Submission to Parliament not prescribed in PP Act, followed procedure for subordinate legislation, including consultation with Dept of Justice and Constitutional Development (State Law Advisors), Public Workshop and publication of draft Rules for public comments

4. Introduction • Draft Public Protector Rules published for public comment on 29 November 2010; • Extensive stakeholder consultation in process; • Appreciate the opportunity to engage the Justice Portfolio Committee;

5. Introduction (continued) • 5. This presentation covers the following: • 5.1 Authority to make Rules; • 5.2 Why Rules? • 5.3 Progress with stakeholder consultation; • 5.4 Specific issues; • 5.5 Arrangement of Rules; • 5.6 The way forward.

6. Authority to make rules 6. Section 7(11) of the Public Protector Act 23 of 1994: 6.1 In respect of any matter referred to in section 7(11); 6.2 Which has a bearing on an investigation; or 6.3 In respect of any matter incidental thereto.

7. 7. Facilitate and support the strategic goal of prompt remedial action; 8. Enhance the relationship between State/Public Protector/public; 9. Transparent, standardised Public Protector procedure; Why Rules?

8. Why Rules? (continued) 10. Organs of State aware of what is expected of them; 11. Public aware of what is expected of them; 12. Prevent secondary prejudice to complainants due to procedural delays; 13. Emphasise approach of resolving complaints;

9. Why Rules? (continued) 14. Remove perception that Public Protector only investigates high profile matters; 15. Set the example by adopting time lines; 16. Promote an understanding of findings.

10. Progress with stakeholder consultation 17. Commenced on 30 August 2010 with a Roundtable Conference to interrogate draft rules before they were published for comments; 18. Closing date (end December 2010) for comments on published draft Rules extended; 19. Comments received incorporated into present draft; 20. Draft Rules provisionally approved by EXCO on 31 March 2011;

11. Progress with stakeholder consultation(continued) 21. Final internal consultation on 6 May 2011; 22. Draft Rules included in Public Protector’s 2011/12 stakeholder consultations; 23. Consultation with Justice Portfolio Committee.

12. Specific issues 24. A few specific issues raised during stakeholder consultation: 24.1 Should one curtail the discretion of the Public Protector through the Rules?; 24.2 Should the Public Protector not be bound by law of evidence and procedure?; 24.3 Rules should fill in procedures where Act does not provide detail.

13. Specific issues (continued) 24.4 Guarantee of confidentiality; 24.5 Time limits realistic and consequences of not complying;

14. Chapter 1 Rule 1: Purpose of the Rules to determine─ (a) procedures for the lodging of complaints with the Public Protector; (b) procedures for the resolution of disputes; (c) service standards applicable to the Public Protector in conducting investigations and resolving disputes; (d) timelines for the taking of actions dealt with in these Rules; e) time frames for organs of state to respond to a report or finding of the Public Protector; and • the steps the Public Protector may take if an organ of state fails to adhere to stipulated timelines. Chapter 2 Rule 2: Definitions. Arrangement of Rules

15. Arrangement of Rules (continued) Chapter 3: Lodging a complaint with the Public Protector Rules 3 to 10: • Persons who can lodge complaint • Information required when lodging complaint • Matters Public Protector can investigate and resolve • Confidentiality • Format of lodging complaint • Manner of submitting complaint • Place to lodge complaint • Late lodging of complaint

16. Arrangement of Rules (continued) Chapter 4: Processing of complaint lodged Rules 11 and 12: Procedure after lodging a complaint. Procedure followed after lodging complaint outside the prescribed time period Chapter 5: Investigation of complaint Rules 13 and 15: Format and procedure of investigation; Own initiative investigation; and Preliminary investigation.

17. Arrangement of Rules (continued) Chapter 6: Co-operation with Public Protector Rules 16 to 21:Co-operation with the Public Protector and formal powers • Obligation on state organs to cooperate with Public Protector • Extent of co-operation by state organs • Seeking cooperation during an investigation • Seeking cooperation for the resolving of a dispute or rectification of any act or omission • Failure to co-operate with Public Protector • Issuing of subpoena and obtaining warrant .

18. Arrangement of Rules (continued) Chapter 7: Conducting of hearing Rules 22 to 31:When would a hearing be conducted, and what to expect at such hearing. • Circumstances under which Public Protector conducts hearing • Procedure when requesting hearing • Notice of hearing • Attendance of hearing by complainant • Failure of party to attend hearing • Persons allowed to attend hearing • Nature of hearing • Procedure at hearing • Admissibility of evidence at hearing • Conclusion of hearing

19. Arrangement of Rules (continued) Chapter 8: Referral of complaint to, or by, public bodies or authorities (Rules 32 to 34) • Circumstances under which a complaint may be referred to public body or authority • Referral of complaint to Public Protector by other institutions • Advising complainant about appropriate remedies Chapter 9: Joint investigation Rules 35 to 36: When would an investigation be done together with another body, and informing parties accordingly. • Informing parties of decision to conduct joint investigation

20. Arrangement of Rules (continued) Chapter 10: Resolution of complaint Rules 37 to 45: • Resolving complaints by means of complaint resolution processes, proceedings or techniques • Notifying parties of the considered method of resolving the complaint • Discontinued proceedings and unresolved complaints • Resolution of the complaint • Conditions for joining or substituting parties to proceedings • Consolidation of complaints • Determination on disclosure of documents • Conducting of proceedings • Conditions of confidentiality of proceedings .

21. Arrangement of Rules (continued) Chapter 11: Conclusion of complaint Rules 46 to 51: • Conclusion of complaint • Report by Public Protector • Notifying parties of outcome of complaint • Making provisional report of the Public Protector available for inputs • Issuing of final report of the Public Protector • Monitoring of agreement and remedial action to be taken

22. Arrangement of Rules (continued) Chapter 12: General provisions Rules 52 to 59: • Discretion; • Recording of proceedings; • Language; • Costs; • Repeal or amendment of Rules; • Contact particulars; • Short title and commencement.

23. Way forward Public Protector to approve final draft; and Final Rules to be: • Published in the Government Gazette; and • Tabled in the National Assembly.

24. Questions and inputs Questions and inputs Thank you 0800 11 20 40 www.publicprotector.org

25. THANK YOU