Functions and powers
The Ombudsman must investigate any alleged act or omission or any attempt by an employee serving in the municipality which contravenes certain items, codes and provisions of section 8 of the Municipal Systems Act.
Section 8 pertains to rates and service tariffs, the provision of services, service delivery agreements, regulations regarding municipal services, the Municipal Entities and their duties and responsibilities, and governance.
Outside the Ombudsman’s scope
The Office of the Ombudsman will not accept complaints about legislative or executive decisions made by council, legal or arbitrary proceedings to which council is likely to be a party, or labour law matters.
Furthermore it will not entertain any vexatious or frivolous matters, matters related to the laying of charges or the prosecution of an alleged offender, or any acts of irregular conduct of a councillor. The conduct of councillors is covered by the Municipal Structures Act. Complaints about the conduct of councillors are reported to the Office of the Speaker for handling in the manner prescribed by this Act.
Complainants must have exhausted all internal remedies available before lodging a complaint, unless the refusal to act would result in an injustice to the complainant. Complainants will be asked to show, through reference numbers or other proof of escalation, every means they have taken in going through the correct channels to try to resolve the complaint.
For example, a billing query which has not been resolved when a customer contacted the City to query it and was provided with a reference number, but after several follow-ups by calling, visiting Thuso House or attending one of the City’s regional Open Days, the issue has not been resolved, and as a result, the customer is suffering an injustice (having to suffer penalties or disconnections).
Complaint forms were published with the by-law and will be made available once the Office of the Ombudsman is operational. The complainants would outline the nature of the complaint, the ground upon which there has been an act or omission, facts known to the complainant or relevant information, and any redress sought.
The Office of the Ombudsman will assist complainants who cannot write and the submission of complaints can be made in any of the country’s 11 official languages.
Receipt of a complaint must be acknowledged by the Ombudsman within 14 days, while relevant parties shall be kept informed of progress until the complaint is resolved.
The Ombudsman may make a preliminary investigation into a complaint submitted within Section 8 of the MSA to determine its merits. The Ombudsman can make a determination of whether the complaint has merits, sufficient evidence and falls within the provisions of the by-law. This will determine whether a complaint is investigated further.
If a complainant has not exhausted all possible avenues offered either through the City or through legal remedies at their disposal the Ombudsman may decline to investigate further. However, poverty or lack of capacity of the complainant which would result in a failure of justice for that person shall not be a barrier. The Ombudsman should be a place of last resort for complainants.
For the purpose of investigation, the Ombudsman will have the powers to demand that any employee appears before him and produce any record, book or file, object or document in any form. The complainant will be informed of their rights, which could be the right to remain silent or to request the assistance of a fellow employee or union representative.
During investigations the Ombudsman will have power to enter any premises owned, controlled or managed by the municipality or its ME’s to examine any records necessary, as well as take charge of or remove them for investigation.
The Ombudsman will have the power to report on and ensure the observance of human rights within the municipality and take steps to redress any human rights violations.
Furthermore, he can request the municipality and its ME’s to provide information about the progress they have taken to realise the implementation of the Bill of Rights pertaining to their particular functions.(The Bill of Rights is Chapter 2 of the Constitution, a charter which protects the civil, socio-political and socio-economic rights of all South Africans).
After the completion of an investigation the Ombudsman will set out in writing findings and recommendations to either find justification for the complaint, sufficient evidence to support it, merits, whether it is vexatious or frivolous, or outside his jurisdiction.
Where complaints are justified the Ombudsman will approach the City Manager or a council employee delegated by the City Manager to settle it.
This could be done through negotiation, mediation, conciliation, or recommendation to seek redress wherever legally permissible. Recommendations could be in the form of apology, by recommending corrective action, by referral for further investigation or whatever legal means to settle the complaint.
If corrective action is recommended, the department or employee would provide written confirmation within 14 days of whether the recommendations will be implemented or not. Written comprehensive reasons for why they would not be must also be provided within this time.
If recommended corrective action is not taken or reasons are not provided why they aren’t, the Ombudsman will refer the matter back to the City Manager or management structure for intervention.
Complaints made which do not fall under the mandate of the Ombudsman will be referred to the relevant authorities or bodies whose mandate it is. For example, if a complaint is made about a suspected criminal act, the Ombudsman would refer it to the South African Police Service or the National Prosecuting Authority. Failure to comply with legislative acts would be referred to the appropriate authorities as stipulated in the by-law.