Funding the Public Protector
According to press reports, the Office of the Public Protector (OPP) is inadequately funded for the staff engaged to be able to effectively and efficiently deal with the high volume of complaints that are being received, now that the office has become increasingly popular with the public because of the successes it has enjoyed under its new leadership.As a Chapter Nine institution, the OPP is afforded certain constitutional privileges and protection. It is independent and subject only to the law and the Constitution itself. The OPP acts impartially and is obliged to perform its functions without fear, favour or prejudice.
The necessary independence, guaranteed in the Constitution itself, must include financial independence in much the same way as the judiciary is protected in this regard. What happens in practice is that the OPP's funding is treated as a line item in the budget of the Department of Justice and Constitutional Development. This is a less than satisfactory way of giving effect to the independence of the OPP. For independence to be meaningful it needs to be of an institutional, financial and personal nature. The first and third of these criteria have been adequately demonstrated by the sterling efforts of the OPP under its new leadership since 2009. It is now time for Parliament to address the less than satisfactory situation in relation to the financial independence of the Chapter Nine institutions, including the OPP.
The constitutional imperative for doing so is to be found in the provisions of section 181(3) of the Constitution, which refers to the Chapter Nine institutions in general terms in these words:
"Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions."
A clearer mandate to provide financial independence to Chapter Nine institutions is hard to imagine. The only reasonable explanation for the failure to take the necessary measures to ensure financial independence is the unfortunate tendency of the governing alliance to regard the Chapter Nine Institutions as a haven for cadre deployment of loyal supporters who are meant to do the bidding of Luthuli House rather than to act in an independent fashion as the Constitution requires of them. The hegemonic control of all the levers of power in society which is the goal of the national democratic revolution being pursued by the governing alliance is of course completely inconsistent with the values and principles of the Constitution and flatly contradictory of the independence of the OPP and the other Chapter Nine Institutions.
As all Chapter Nine Institutions, including the Auditor General, the SA Human Rights Commission, the Gender Commission, the Electoral Commission and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, in addition to the OPP, are accountable to the National Assembly and have to render annual reports to it, there should be a concerted effort on the part of all of them to secure their financial independence.
In the meantime, the OPP is left with the problem of having insufficient resources, both human and infrastructural, to attend to the performance of its constitutional mandate. At a time when the presidency has seen fit to issue more than a dozen proclamations inspanning the Special Investigations Unit of the National Prosecuting Authority to look into tender irregularities, it is obvious that there is likely to be an upturn in the demand for the services of the OPP.
The investigation of the conduct of state affairs and the public administration that is alleged or suspected of being improper or to result in impropriety or prejudice is a growth industry because of endemic corruption dating back to the conclusion of the arms deals. The tender irregularities now so prevalent were spawned by the irregularities and practices that were introduced in the new South Africa by the highly placed individuals who negotiated the arms deals. Andrew Feinstein, a former ANC MP who served on parliament's standing committee on public accounts no longer speaks of allegations of corruption in the arms deals. He calls a spade a spade and challenges the arms dealers and middlemen to sue him. None has.
Whilst it is so that no person or organ of state may interfere with the functioning of the OPP or any other Chapter Nine institution, there is no reason why, in its hour of need, the OPP should not seek outside assistance with the performance of its functions.
The Law Society of South Africa and the General Council of the Bar have in recent years introduced a system of pro bono assistance for those who need legal advice but can not afford it. This is a commendable step on the part of the organised legal professions as it enhances access to justice and relieves the state of a burden that might otherwise fall on its resources via Legal Aid South Africa or to the legal aid clinics that are operated by the universities for the benefit of the poor who have legal problems. These clinics also obviously exist to hone the practical legal skills of law students.
There is surely no reasonable impediment to the OPP coming to an arrangement with the law society and bar to provide pro bono assistance in some of the investigations it is required to undertake in the course of dealing with and reporting on the complaints it receives on a daily basis.
Many complaints are of a nature that lends itself to the giving of legal assistance. Many of the personnel on the staff of the OPP are in fact lawyers themselves. When they become too overloaded with new work, they should be able to turn to their colleagues in private practice, who are required to do a set number of pro bono hours of work each year, for help in dealing with surplus complaints that the OPP staff are not able to attend to in the time and within the budget available to that hard pressed office.
By entering into an arrangement of this nature a mutually beneficial result is possible. Those legal practitioners who have difficulty filling their pro bono hours have a respectable source of pro bono work and the OPP has a means of reducing backlogs of work in its various offices around the country. There is surely synergy in such a system.
Even if this arrangement is only concluded on a temporary basis until such time as parliament passes the necessary legislation and beefs up the budget of the OPP, it is better than allowing the backlog of the OPP's case load to increase exponentially due to the cash crunch being experienced at present. There may even be operatives in the non-governmental organisation sector who are suitably equipped and able, with their available skills and capacity, to help deal with the current crisis.
It would be a great pity if the positive momentum gained by the OPP were to flounder in an under-funded morass of inefficiency, ineffectiveness and uneconomical activity because of the new found popularity of the service offered to a grateful public which is beleaguered by the impropriety and prejudicial nature of the conduct of state affairs and public service.
Paul Hoffman SC
10th August, 2011
