Tabling of the Public Protector Rules Adv B

Tabling of the Public Protector Rules Adv B Mkhwebane Public Protector 6 June 2018

Overview PROCESS TO DATE PURPOSE OF RULES LODGING COMPLAINT WITH PUBLIC PROTECTOR PROCESSING OF COMPLAINT LODGED WITH PUBLIC PROTECTOR GENERAL ASPECTS RELATING TO INVESTIGATION OF COMPLAINT LODGED WITH PUBLIC PROTECTOR CONDUCTING PRELIMINARY INVESTIGATION COMPLIANCE WITH INFORMATION REQUESTS AND TIMELINES OF PUBLIC PROTECTOR CONDUCTING OF PROCEEDINGS BEFORE PUBLIC PROTECTOR GENERAL ASPECTS IN RESOLVING COMPLAINTS CONCLUSION OF COMPLAINT GENERAL PROVISIONS OBSERVATIONS/ QUESTIONS

Rules inre sect. 7[11], Public Protector Act 23 of 1994 • Rules in respect of matters referred to in sect. 7 which has a bearing on & are incidental to investigations by the Public Protector.

Process • Published for public comments GOVERNMENT GAZETTE, No. 33807 of 29 NOVEMBER 2010 • Presented to Portfolio Committee on Justice and Corr Serv -27 February 2012 • Extensive Engagements with DOJ – Branch Legislative Drafting/ Chief State Law Advisor • Internal Workshops/ consultation • Final Draft verified by Chief State Law Advisor • PP Act Requires Tabling (noting) and promulgation on GG

Chapt 1 : definitions • To supplement and clarify matters described in Public Protector Act and Constitution. • Solely to describe for clarity, eg – Complainant – Complaint – Parties – State Institution

Chapt. 2 : Purpose of rules • To enhance access and promote efficiency of investigations through procedures for : Lodging complaints; Resolution of disputes; Service standards in conducting investigations Timelines for the taking of actions Time frame for organs of state to respond to a report or findings • Steps to be taken for non-adherence with timelines • • •

Chap 3: LODGING COMPLAINT WITH PUBLIC PROTECTOR • Who can report a matter or lodge a complaint? • Manner (orally, writing/form, online, walk in) • Information required when reporting matter or lodging a complaint • What the Public Protector can investigate and resolve • Confidentiality of information • Format of reporting a matter or lodging a complaint • Manner of submitting a matter or complaint to Public Protector • Place of reporting a matter or lodging a complaint

Chap 4 : PROCESSING OF MATTERS REPORTED TO AND COMPLAINTS LODGED WITH THE PUBLIC PROTECTOR • Delivery of documents and notices • Procedure followed after reporting a matter or lodging complaint[within 2 years prescribed ]; • Procedure followed after reporting a matter or lodging a complaint outside the prescribed time period [later than prescribed 2 years]. (Information required) • Refusal of PP to investigate – Grounds – Reasons to Complainant – Remedy • Advising complainant about appropriate remedies • Referral of complaint to, or by, public bodies or authorities

Chapt 5: GENERAL ASPECTS RELATING TO INVESTIGATION OF COMPLAINT LODGED WITH PUBLIC PROTECTOR 1. Format & Procedure of investigations [See sect 7[1][b] PP has discretion hence subrule 10[g]; 2. Reporting of state institutions to executive authorities or Parliament 3. Legal assistance during investigation 4. Circumstances under which Public Protector will request assistance from state institutions 5. Format and procedure followed in respect of own initiative investigation 6. Informing parties of assistance by state institutions

Chap 6: CONDUCTING PRELIMINARY INVESTIGATION • Deciding on preliminary investigation – every case/ inform Complainant • Timeframe for concluding Preliminary Inv (30 days) • Procedure after conclusion of preliminary investigation • • Decline Inv Conduct Inv Resolve/ rectify Act/ Omission (ADR) Refer/ Advise

Chap 7: COMPLIANCE WITH INFORMATION REQUESTS AND TIMELINES OF PUBLIC PROTECTOR • Responsibility of state institutions to co-operate with Public Protector • Attaining co-operation during investigations, Unless otherwise determined by PP • • Acknowledgement – 3 days Substantive reply (EMEA) – 14 days Substantive reply (others) – 30 days Substantive reply (sec 7(9)) – 10 days • Reminder – 7 days • Direct requests to Executive Auth/ HOD/ designated person • Refusal or failure to co-operate with Public Protector • Sect 9 of PP Act – contempt • HOD • Contempt of the Public Protector • Report to SAPS/ Apply to the High Court in terms of motion proceedings

Chap 8: Conducting of Proceedings before the PP (ADR/ Hearing) • Circumstances under which Public Protector conducts proceeding • Notice of hearing • Failure of party to participate in proceedings • Persons allowed to attend proceedings • Nature of proceedings • Procedures before commencement of proceedings • Procedures at commencement of proceedings • Procedures during proceedings • Conditions for joining, substituting or adding parties to proceedings • Consolidation of complaints

Chapt 9: GENERAL ASPECTS IN RESOLVING COMPLAINTS • Method of resolving a complaint [read with sect. 6 PPA] – Mediate – Conciliate – Negotiate • Facilitation of resolution – Express and opnion – Advise on appropriate course of action • Implementation of resolution (settlement);

Chap 10: CONCLUSION OF COMPLAINT • Conclusion of Complaint • Resolved • Closing report • Formal report ito section 182(1)(b) Constitution, sec 8(2)(b) of PP Act. • Affording opportunity to complainant to make representations before finalising complaint • Adverse findings of Public Protector • Monitoring of agreement and remedial action to be taken • Grounds for requesting internal review

Chap 11 : General provisions • Recording of proceedings and investigation • Language used during proceedings and investigation • Contact particulars of public protector and customer service. • Short title & commencement

ANNEXURES TO RULES • A-Contact details of PPSA • B-Complaint form • C-Subpoena

Issue Raised by PC on 17 April 2018 Supreme Court of Appeal directives? Rules aligned to • best practice and the principles for a credible investigation established in Public Protector v Mail and Guardian and other jurisprudence • Constitutional imperatives as well as universally accepted standards • Limitation iro expansion on original Complaint • Reviewing Handbook on Conducting Administrative Investigations: Standard Opering procedures - optimising rigour, expeditiousness, responsiveness and, ultimately, fairness of all investigations. • Keeping Complainants informed • Rules provide timeframes to communicate critical decisions and stages on the case assessment, preliminary investigation, investigation and reporting the outcome of investigations Investigation Service, supplemented by • Handbook • Investigation Service Standards Guidelines • Prioritisation of EMEA Matters • Rule 24(2)(b) provide for shorter timeframes within which Public Protector expects requested information, documents or comments from State institutions and the Executive. On EMEA Matters • •

Thank you