The Justice and Correctional Services Portfolio Committee
16th January 2017
Dear Honourable Members,
RE: The first provisional report of the new Public Protector concerning our Ciex complaint
- We campaign for accountability and responsiveness as “Accountability Now”. We persuaded the previous Public Protector in July 2011 to reopen a complaint to her office concerning the manner in which government allegedly mal-administered an agreement it entered into with Ciex, a covert investigative body based in the UK.
- Due to lack of adequate resources in the Office of the Public Protector (OPP) and the resignation of the intern working on the matter, the recently retired Public Protector was unable to produce any report of the investigation she conducted between July 2011 and her retirement.
- There is a chain of relevant email correspondence with the new Public Protector attached to this letter starting with our email to the Public Protector of 9 January and ending with a similarly addressed email dated 14 January.
- On Monday 9 January we began receiving media enquiries from interested journalists who contended that there was a preliminary or provisional report by the OPP in regard to our complaint about the Ciex contract with government and its alleged maladministration. We had not received any such document nor the usual antecedent request from the OPP for a confidentiality undertaking in writing and told the journalists so when they enquired.
- We then enquired with the OPP concerning the report by email. We were assured at 16h04 on 9 January that there was no such report. This assurance was given by email by the Public Protector herself and is in the chain of emails attached to this letter. We relayed the content of the email to journalists who continued to raise queries with us during the course of the ensuing week.
- On Friday 13 January we received two documents: one purports to be what is headed “provisional report” and the other purports to be a letter to the honourable President of the Republic under cover of which the report was sent to him. Both documents purport to have been signed last year in December by the Public Protector herself, as author. The letter makes several references to the existence of the report that the journalists had been enquiring after. This makes nonsense of the assertion by the Public Protector that there is no report.
- In order to demonstrate to Ms Karyn Maughan, a television journalist with eNCA, the source of our information that there was no report in the matter, we sent her a copy of the email to us from the Public Protector as it was not sent to us in confidence and was not subject to any confidentiality agreement of the kind complainants are routinely required by the OPP to sign prior to release of information or preliminary reports to them that may require confidential treatment.
- The Public Protector found it “disturbing” that we had done so (it seems Maughan had sought an explanation for the denial of the existence of any report in the said email). The Public Protector complained to us by way of an email (in the chain attached) as well as furnishing us with a thoroughly lame explanation for the misleading content of her email of 9 January.
- The explanation does not stand up to scrutiny and is both scanty and confusing. It also raises serious issues of principle in relation to the way in which the new Public Protector is running her office and using the section 7(9) notice procedure without securing its confidentiality before doing so.
- In an effort to exact an accountable explanation for her apparently deliberately misleading conduct towards us in the matter we wrote to the Public Protector and raised 13 questions with her in the next email in the chain.
- The Public Protector then invited us to take the matter up with parliament saying that she cannot investigate herself, which we had not asked her to do. She tacitly declined to answer our legitimate queries.
- We responded to her by again seeking replies to the justifiable but unanswered questions we have raised both in relation to the matter and in relation to the general practice of the OPP around confidentiality of reports and section 7(9) notices. The previous Public Protector was astute to carefully obtain confidentiality undertakings prior to releasing preliminary or provisional reports and did not, as far as we are aware, use the section 7(9) notice procedure at all or certainly not without first securing confidentiality.
- While the effectiveness of the confidentiality undertakings is not absolute and has not always secured the OPP’s reports against leaks to the media, it is certainly better than nothing to obtain them. It may be that remedial legislation or a better administrative regulatory system should be put in place. The Public Protector has not replied to our last email in the chain attached and the deadline set in it has expired. We accordingly respectfully ask that you exercise your powers of oversight of the manner in which our complaint has been handled by the new Public Protector, both in general and in relation to the specific issues we have raised in the 13 unanswered questions we put to the Public Protector on Friday 13 January 2017. A good starting point would be to direct the OPP forthwith to answer the questions we have put in the emails attached to this letter.
Yours in accountability,
Paul Hoffman SC
Email correspondence with the Public Protector
From: Paul Hoffman Sent: 09 January 2017 12:37 PM To: Busisiwe Mkhwebane (Public Protector) Subject: Ciex report – complaint by Accountability Now
I have received press inquiries concerning the preliminary report of your office in relation to the above matter, which is sometimes called the lifeboat case.
We have not, as complainant, received the preliminary report, if it exists.
What is the current position in relation to this long outstanding matter?
Yours in accountability,
Paul Hoffman SC
Institute for Accountability in Southern Africa
Campaigning as Accountability Now
From: Busisiwe Mkhwebane (Public Protector) Sent: 09 January 2017 04:06 PM To: Paul Hoffman Subject: RE: Ciex report – complaint by Accountability Now
Good Afternoon Advocate
There is no preliminary report, but we have issued section 7(9) to the implicated parties
They were due to respond by 16 January 2017, but have received request for extension from National Treasury and Absa
Hope you find the above in order
From: Paul Hoffman Sent: 09 January 2017 06:12 PM To: Busisiwe Mkhwebane (Public Protector) Subject: RE: Ciex report – complaint by Accountability Now
Provided the extension is not too long, that will be perfectly in order
From: Busisiwe Mkhwebane (Public Protector) Sent: 13 January 2017 04:44 PM To: Paul Hoffman Subject: RE: Ciex report – complaint by Accountability Now
Good Afternoon Advocate
It’s disturbing to see you have shared this email with Enca,
When I responded on 9 January I was under the impression the investigator sent the Section 7(9) notice using the provisional report content as agreed during the think tank meeting that we will no longer issue provisional reports but section 7(9) notices, I discovered later when I see the questions from Mail and Guardian about the leaked provisional report
It’s unfortunate that the provisional report is leaked, but am in the process of opening a criminal case to investigate the source of the leak
On 13 Jan 2017, at 8:28 PM, Paul Hoffman wrote:
Good afternoon Advocate,
Whilst we agree with you, as set out in the email below, that it is disturbing that the provisional/preliminary report, the existence of which you denied in our exchange of emails on Monday, has been leaked, Accountability Now is more disturbed by the following:
- The written “provisional report” now in the public domain purports to have been signed by you last year on 20th December, 2016. Did you sign it? If so, why?
- The “provisional report” is riddled with typing, factual and grammatical errors, repetitious paragraphs, sloppy drafting and the like, to such an extent that it falls short of the standards expected of your office. If you signed it on 20 December 2016, did you read it before doing so? If not, why not?
- Do you contend that the signature on the report is a forgery of your signature?
- If so, have you reported the forgery to the SAPS for investigation?
- In addition to being sent to the Reserve Bank and ABSA, the “provisional report” was also apparently sent by you to the president last month, a fact you chose not to share with us on Monday. Did you send it to him or is your signature on the covering letter to the president dated 20 December 2016, now in the hands of the media, also a forgery?
- If you indeed signed the covering letter of 20 December 2016 addressed to the president, did you read it and notice that there are references in it to the “provisional report”, once in the second paragraph and twice in the third paragraph?
- How did you form “the impression that the investigator sent the Section 7(9) notice using the provisional report content” [your words in the email below] when it is clear from the letter to the president and the report itself that you have signed both the letter and the report as the author of both? Unless, of course, you are the victim of an accomplished forger. You will appreciate that if no forgeries are found then your statement at 16h04 on 9 January is false in that there is indeed a preliminary report (sometimes loosely called “provisional” report without regard to the wording of Section 7(1)(a) of the Public Protector Act). It seems you have signed and circulated it without including the complainant and other affected parties who may become the victims of the commission of inquiry you recommend. Surely they too are entitled to be heard before you report finally? Furthermore, given your signature of the covering letter to the president, your attempt to shift blame to the investigator is, at best, disingenuous and does you no credit. The purpose of confidentially circulating provisional/preliminary reports of the OPP to all interested and affected parties is to avoid reputational harm of the serious kind which is now taking place in this matter because the section 7(9) procedure is not, and has not been treated by your office, as a confidential one. This appears from the manner in which you interacted with us on Monday and from the wording of your letter to the president. The matter ought not to reach the public domain before the potentially detrimentally implicated parties have had the opportunity of putting their version and counter-veiling submissions to the OPP for consideration and possible inclusion in the duly amended final report that is made public in terms of section 182(5) of the Constitution. Openness, accountability and responsiveness, all foundational values, have to be balanced against the audi alteram partem rule, rights to property, privacy and confidentiality of process. While we appreciate that the format and the procedure to be followed in conducting any investigation shall be determined by you under Section 7(1)(b)(i), this has to be done with due regard to the circumstances of each case. In this case the circumstances militating against the use of Section 7(9), without first securing confidentiality, include the possible impact of the investigation on the economy as a whole, the adverse effects on the credibility of the Reserve Bank, the possibility of a run on ABSA and the reputational and financial damage that is foreseeable if, as you have done, the matter is not handled confidentially and on the basis that suitable undertakings to keep matters confidential are not obtained prior to the issuing of a section 7(9) notice and the (allegedly inadvertent) dissemination of the provisional report in the manner that has occurred, whether accidentally or by design.
- Who is the investigator to whom you refer in your email under reply?
- When was the think tank to which you refer held?
- Minutes of the decisions taken at the think tank in relation to the use of the Section 7(9) notice procedure are required.
- Was confidentiality in relation to the use of the said procedure discussed and decided upon in any way?
- Does the OPP regard it as unnecessary in law to secure confidentiality in respect of the said procedure?
- Would it be preferable for the law to expressly require confidentiality in respect of the said procedure?
Kindly let us have your detailed reply to the above questions so that we can consider taking up the matter with the Justice Committee in the National Assembly on the basis of your replies.
Yours in accountability,
Paul Hoffman SC
From: Paul Hoffman ent: 14 January 2017 09:38 AM To: Busisiwe Mkhwebane (Public Protector) Subject: Re: Ciex report – complaint by Accountability Now
We will be obliged to take our unanswered queries of 13 January 2017, set out in our email to you (below) to the Justice portfolio committee if you persist in refusing to engage with us in respect of the questions we have justifiably raised with you in our email of that date. You are not only accountable to the National Assembly, you are also accountable to the people of South Africa who created your high office and who pay your salary as well as specifically to the complainants who turn to you in their quest for administrative justice and a better life for all.
Your failure to deal seriatim with our questions raises the reasonable inferences that you are either unwilling or unable to do so in a responsive and responsible manner.
We accordingly ask you to reconsider your tacit refusal to answer the questions we have put to you in our said email by noon on Monday 16 January, failing which we will turn to parliament with a request that it exercise its oversight over your office. We have no desire to create a storm in a teacup if you do have reasonable explanations, nor should you place yourself in jeopardy of being asked many more difficult questions when you are called to appear before the committee to explain your handling of the complaint and the admitted snafu in the section 7(9) notice procedure. We are not asking you to investigate yourself. We are asking you to justify what you have done. That is what accountability entails and it runs like a golden thread through good governance at every level everywhere that the rule of law is respected and upheld.
Yours in accountability,
Paul Hoffman SC
On 14 Jan 2017, at 7:08 AM, “Busisiwe Mkhwebane (Public Protector)” wrote:
Go ahead and report the matter to the National Assembly since I am accountable to them I can’t investigate myself.
PH’s fury is palpable in his email on Friday the 13th and understandably so. What’s going on at the OPP? It boggles the mind why the decision was made to keep the report from PH in the first place. Why was OPP buying time? What deals are being made behind closed doors? Who’s the OPP really been protecting since 1999? It definitely is not We the People.
This is a very interesting series of communications as it appears that this problem runs deep.
I have a similar problem in that the office of the PP has allowed a matter to drag on for 1997 days without relief. There is a draft report that has been completed and admitted to in our matter. We also have confirmation that the investigation was completed but now they are changing the draft report into a section 7/9 notice for the perpetrators eyes only. This mechanism therefore does not allow the complainant access to both the draft and the 7/9 letters which in turn will force complainants to take the PP on review . This is unconstitutional and disgraceful behaviour. For 1997 days I have not taken this matter to the press but I know and have copies of forensic reports that the PP’s offices ordered to be given to me, that contain serious adverse findings yet nothing has been done to those found wanting. It’s time to stop this section 7/9 nonsence as this is allowing criminals to cure defects and kick the can down the road for years at the expense of the taxpayer.How to Gogo Dlaminis fight against this oppression?
To: National Assembly and National Council of Provinces
The Speaker and the Chairperson
The Portfolio Committee
RE: Public Protector failed to comply with their mandate.
Case numbers- Our Ref. 7/2-13525/09 and Ref. 7/2-024505/16
Dear Hon/Chairperson/House Speaker/Sir/Madam
I would like to make a formal request to Parliament for interventions in several matters that is long overdue with no feedback. I am not sure to whom I must address my submission, but I need assistance in this regards. Please assist me.
In a matter of public interest. I had 4 cases opened with SAPS (FRUAD),
a. Springs CAS 752/04/2011
b. Cape Town CAS 889/05/2011
c. Scottsburg CAS 33/05/2011
d. Springs CAS 06/05/2011
SAPS failed to respond to 28 questions, SAPS failed to comply with Public Information Act and Promotion of Administrative Act. I requested access to records of SAPS but it was denied for some reasons unknown. My cases did not make it to court for prosecution. After scrutinizing the matter I lodged a complaint with the Director of Public Prosecutions and requested charges to be reinstated.
a. NPA- Adv. Baloyi ref. 10/2/12 (69/2018) and ref. 9/2/12-S49/2012
b. NPA- Adv. de Kock ref. 9/2/12-673/12 and ref. 10/2/12 (69/2018)
c. NPA- Adv. Noko ref. 10/2/12 (69/2018) and ref. 10/2/123-27/2018
Due to the time the matter was taking and concerns over impartiality I lodged a complaint against the offices of the Director of Public Prosecutions with the Public Protector.
The representations made by the offices of the Director of Public Prosecutions made no mention to the physical evidence I had handed in which suggested that there was irregularities around the matter. Representations made by the offices of the Director of Public Prosecutions also included an untrue representation, (a) which it is not in their mandate to investigate cases, (b) they threaten to take steps against me if I do not stop with my correspondence with them. (c) they blocked my correspondence with them.
Due to the nature of the charges I also laid a complaint with the South African Human rights commission against the official. They failed to act accordingly, I had to appeal against their dictions, they failed to respond on my appeal.
Due to the nature of my cases, I am referring to Chapter 9 of the Constitution. These include the Human Rights Commission, the Auditor General, and the Public Protector.
Public Protector were well informed about the seriousness of my cases, every year it’s the same story, they don’t have people to investigate or they are still busy investigating my cases. These cases are outstanding for 10 years with no feedback. I opened 5 cases with the Public Protector, they failed to register my cases.
The following people received my correspondence at the office of the Public Protector nl.
Adv. Busiswe Mkhwebane
Adv. Kevin Malunga
Adv. Johan Raubenheimer
Adv. Adv. Mdleleni
Adv. Nthoriseng Motsitsi
1. Public Protector failed to answer 28 question.
2. Public Protector failed to declare the Sheriffs Return of service as authentic, original and as lawful documents.
3. Public Protector failed to supply me with an affidavit (section212) from (a) the Sheriff and (b) Deputy Sheriff in question. (This was requested by High Court)
The office of Public Protector did use Discrimination and Racist remarks against me and my cases not to investigate, all the documents were handed to Adv. Johan Raubenheimer.
According to the Constitution, the Public Protector and all other Chapter 9 institutions “are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.
Since 2008 up to date the office of the Public Protector were unable to provide me with any satisfactory answers to my complaints, abandoning its oversight and responsibilities.
The Public Protector is also subject to the provisions of section 237, which provides that: “All constitutional obligations must be performed diligently and without delay.”
Abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function or performing a function in connection with his or her employment by an institution. Improper or dishonest act or omission or offences referred to in the Prevention and Combating or Corrupt Activities.
TIME ALLOCATION OF A FILE TO AN INVESTIGATION, NOT FOLLOWED
To finalize cases within the following time frames:
(a) No jurisdiction: within 5 days
(b) Simple cases: within 3 months
(c) Ordinary cases: within 6 months
(d) Complex cases: within 24 months.
MY CASES ARE 10 YEARS OUTSTANDING.
Approach the institution complained against, or in appropriate cases, the complainant for further information, within 10 working days of completing the investigation plan.
Inform the complainant within 10 working days of the completion of the investigation plan of our intention with the complaint.
Answer all further incoming correspondence within 10 working days of acknowledging receipt of such correspondence.
If correspondence has not been responded to within 20 working days of it’s being sent, then a reminder must be sent within 5 working days of the expiration date.
In cases where no response was received after a first reminder, send out a second reminder within 15 working days of the first reminder.
In cases where no response was received within 20 working days after a second reminder, take all possible steps within 5 working days to ensure a positive reaction, including consultation with the Provincial Representative or Chief Investigator with a view to considering to take more formal steps.
No explanation were ever given in 10 years, 10 years my cases are outstanding with NO responds.
Public Protector were given a due date to respond as 31 July 2018 which they ignore. No responds were ever received from their office.
I ask The Parliament to please look into this matter as this is a matter of urgency please.