The Justice and Correctional Services Portfolio Committee

National Assembly

Parliament

Cape Town

By email

16^th January 2017

Dear Honourable Members,

RE: The first provisional report of the new Public Protector concerning our Ciex complaint

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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

Dear Advocate,

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

Director

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

Regards

From: Paul Hoffman Sent: 09 January 2017 06:12 PM To: Busisiwe Mkhwebane (Public Protector) Subject: RE: Ciex report – complaint by Accountability Now

OPP,

Provided the extension is not too long, that will be perfectly in order

Best

Paul Hoffman

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

Regards

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:

1. The written “provisional report” now in the public domain purports to have been signed by you last year on 20^th December, 2016. Did you sign it? If so, why?
2. 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?
3. Do you contend that the signature on the report is a forgery of your signature?
4. If so, have you reported the forgery to the SAPS for investigation?
5. 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?
6. 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?
7. 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.
8. Who is the investigator to whom you refer in your email under reply?
9. When was the think tank to which you refer held?
10. Minutes of the decisions taken at the think tank in relation to the use of the Section 7(9) notice procedure are required.
11. Was confidentiality in relation to the use of the said procedure discussed and decided upon in any way?
12. Does the OPP regard it as unnecessary in law to secure confidentiality in respect of the said procedure?
13. 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

Accountability Now

From: Paul Hoffman ent: 14 January 2017 09:38 AM To: Busisiwe Mkhwebane (Public Protector) Subject: Re: Ciex report – complaint by Accountability Now

Dear Advocate,

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:

Dear Advocate

Go ahead and report the matter to the National Assembly since I am accountable to them I can’t investigate myself.