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Ombudsman

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Johannesburg
South Africa

Ombudsman By-law, 2023

To establish the Office of the Ombudsman for the City of Johannesburg; to provide for the appointment of an Ombudsman; to provide for the powers, duties, and functions of the Ombudsman; to provide for procedures and processes to be applicable to the Office of the Ombudsman; to provide for the staffing of the Office of the Ombudsman; and to provide for those matters reasonably necessary for, or incidental to, the effective performance and functioning of the Office of the Ombudsman.

Preamble

WHEREAS the City of Johannesburg seeks to ensure that customers and citizens feel acknowledged, through the institutionalisation of a refined, shared and comprehensive customer care approach that puts people first;WHEREAS Section 43(c) of the Constitution of the Republic of South Africa (the Constitution) vests legislative authority in respect of the local sphere of government in municipal councils as set out in section 156;WHEREAS Section 156(2) and (5) of the Constitution provide that a municipality may make and administer By-laws for the effective administration of matters which it has the right to administer, and to exercise any power concerning a matter reasonably necessary for, or incidental to, the effective performance of its functions;WHEREAS Section 181(3) of the Constitution requires organs of state, through legislative and other measures, to assist and protect the institutions established in terms of Chapter 9 of the Constitution to ensure the independence, impartiality, dignity and effectiveness of those institutions;WHEREAS the City of Johannesburg has identified the need to establish an independent Office of the Ombudsman whose primary function is to assist the City of Johannesburg in fulfilling its legislative obligation to provide accountable, democratic and transparent governance to those who reside in its jurisdiction;WHEREAS there is a need for the establishment of a mechanism whereby residents of the City of Johannesburg can formally lodge complaints against alleged abuse of power, unfair decisions and maladministration on the part of the City’s administration;WHEREAS this By-laws subscribes and gives effect to the purpose and principles contained in the By-­laws of the International Ombudsman Institute;AND WHEREAS the Council, its political structures and its administration must assist and protect the Office of the Ombudsman to ensure its independence, credibility, impartiality, dignity, and effectiveness.NOW THEREFORE BE IT ENACTED by the Council of the City of Johannesburg as follows:

Chapter 1
Interpretation

1. Definitions

In this By-laws, unless the context otherwise indicates—Administration” means the City’s administration and the administration of any of its municipal entities;Board” means a board of a municipal entity of the City of Johannesburg;Chief Executive Officer” means the Chief Executive Officer or Managing Director of a municipal entity in terms of Section 93J of the Municipal Systems Act;City” means the City of Johannesburg, a municipality established in terms of section 12 of the Municipal Structures Act, including its municipal entities;City Manager” means the municipal manager appointed in terms of section 54A of the Municipal Systems Act;Complainant” means any person who has lodged a complaint, or on whose behalf a complaint has been lodged, with the office of the Ombudsman;Committee” means a Committee established by Council in terms of Section 79 of the Municipal Structures Act to resolve disputes described in section 16(1);Complaint” means a complaint lodged in terms of Section 4(1), by a complainant;Constitution” means the Constitution of the Republic of South Africa, 1996;Corrective action” means a particular action aimed at removing the cause of failures and nonconformities in an effort to prevent their future recurrence;Council” means the council of the City of Johannesburg, as contemplated in section 18 of the Municipal Structures Act and in Section 157 of the Constitution;Councillor” means a member of Council;Departmental Head” means the person appointed in terms of Section 56 of the Municipal Systems Act;Employee” means a staff member of the City or its entities;Executive Mayor” means the person elected in terms of Section 55 of the Municipal Structures Act;Maladministration” means an act or omission committed by the administration or by an employee of the administration and which has the impact of infringing upon a person or institutions’ right to fair administrative action or that results in manifestly inequitable, unfair, irregular or unprocedural treatment;Managing Director” means the managing director of a municipal entity;Member of the public” means a member of the general public/population;Municipal Finance Management Act” means the Local Government: Municipal Finance Management Act, 2003 (Act No. 56 of 2003), and any regulations made under that Act;Municipal Structures Act” means the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), and any regulations made under that Act;Municipal Systems Act” means the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000), and any regulations made under that Act;Office” means the Office of the Ombudsman established in terms of section 3;Ombudsman” means the person appointed as such in terms of section 10(1);Remedial action” means an action intended to correct something that is wrong to improve an unacceptable situation; andSpeaker” means a person elected in terms of section 36(2) of the Municipal Structures Act.

Chapter 2
Independence and jurisdiction of the Office

2. Independence of the Office

(1)The Office is a functionally independent institution within the City’s staff establishment with the power to regulate the performance of its powers, functions, and duties in accordance with the City’s policies but separately and independently from the City’s administration.
(2)The Council, its political structures, and administration may not interfere with the functional independence of the Office.
(3)The Office may not, in respect of the determination of any complaint, receive any direction from, nor may any direction be given by the Council, its political structures or administration.
(4)The Council, the Speaker, the Executive Mayor, the City Manager, Departmental Heads, Managing Directors, and the Chief Executive Officers must assist the Office to ensure its independence, credibility, influence, impartiality, dignity, efficiency, and effectiveness.
(5)The Office of the Ombudsman is accountable functionally to Council through the Office of the Speaker, and administratively to the City Manager.

3. Establishment and jurisdiction of the Office of the Ombudsman

(1)The Office of the Ombudsman is hereby established and may only be disestablished through the repeal of this By-laws, in accordance with the rules and orders of Council with a supporting vote of a majority of its members.
(2)Subject to subsection (3), the jurisdiction of the Office is to investigate, resolve, or make findings and corrective/remedial actions in respect of, any alleged complaint concerning-
(a)maladministration in connection with the affairs of government of the City;
(b)abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by any person performing a function or exercising a power on behalf of the City;
(c)any disclosure of privileged or confidential information obtained from a complainant or other person who uses the services of the Office;
(d)any failure by the City to comply with its duties in Sections 5(1)(b), (c), (f) or (g) of the Municipal Systems Act;
(e)any irregular or procedurally unfair conduct by the City;
(f)any violation of human rights by the City; or
(g)any other act or omission by an employee exercising a public power or performing a public function which results in the prejudice to a member of the public.
(3)The jurisdiction of the Office does not include—
(a)any legislative or executive decision by the Council;
(b)any matter that has been referred to a court or to arbitration in respect of which the City is a party;
(c)any matter in respect of—
(i)a criminal charge that has been laid with the South African Police Services for investigation;
(ii)which has been referred to the National Prosecuting Authority;
(iii)a case of improper or dishonest act in connection with assets, property, or moneys of Council;
(iv)a case of any contravention, breach, or failure to comply with any legislation on municipal financial management;
(v)a case of any alleged improper or dishonest act or any contravention or breach of the code of conduct for councillors in Schedule 1 of the Municipal Systems Act;
(vi)a case of any alleged contravention by a councillor of Section 119(1) of the Municipal Systems Act;
(vii)a case of any contravention or breach of the code of conduct for municipal staff members in Schedule 2 or Section 119(2) of the Municipal Systems Act;
(d)any matter referred to for investigation, finding or recommendation made by the Public Protector in terms of Sections 7(1) and 8(1) of the Public Protector Act, 1994 (Act No. 23 of 1994) or any other Chapter 9 institution or any other relevant statutory body;
(e)any matter in respect of which disciplinary proceedings have been instituted;
(f)an audit of the City’s financial affairs;
(g)the investigation into any conduct of a councillor;
(h)all matters as provided for in terms of the Municipal Regulations on Financial Misconduct Procedures and Criminal Proceedings, 2014.

Chapter 3
Complaints and investigations

4. Lodging of complaints

(1)A complaint must be submitted to the Office in writing in the form prescribed by the Ombudsman.
(2)The Office may only accept a complaint if, after a preliminary investigation, the complaint—
(a)falls within the matters listed in Section 3(2);
(b)subject to subsection (3), is submitted or made within 3 years of its occurrence; and
(c)is not, on the face of it, vague, frivolous, or vexatious.
(3)The Office may, in exceptional circumstances accept a complaint under subsection (2)(b) taking into account—
(a)the reasons for the delay;
(b)the consequences to the complainant and any other party, of not accepting the complaint;
(c)the impact of the delay on the availability of evidence;
(d)the interests of the public; and
(e)any other relevant factor.
(4)If a complaint is accepted by the Office, it—
(a)must inform the complainant in writing; and
(b)must refer the complaint for investigation in terms of Section 5.
(5)If the complaint is not accepted by the Office, it—
(a)must inform the complainant in writing of its reasons for doing so; and
(b)if it concerns a matter contemplated in Section 3(3) (a) to (h) the Office may refer the complaint to the relevant authority in accordance with Section 5.

5. Complaints for referral

(1)In instances where the Ombudsman receives a complaint or as part of an investigation discover that the matter falls within Section 3(3), such matter must be referred to the relevant authority or department of the City or municipal entity.
(2)If the Ombudsman refers matters in terms of subsection Error! Reference source not found, the Office must send a copy of the findings that formed the basis for the referral, to the City Manager or in respect of findings involving a municipal entity to its Chief Executive Officers or Managing Directors.

6. General principles applicable to investigations

(1)The Council, Speaker, Executive Mayor, City Manager, Managing Directors, Chief Executive Officers, Departmental Heads and all municipal departments and municipal entities must co-operate and assist the Office with any investigations undertaken by the Office in terms of this By-­laws to ensure its efficiency and effectiveness.
(2)The Office must in any investigation co-operate with—
(a)the Office of the Public Protector;
(b)the South African Human Rights Commission;
(c)the Commission on Gender Equality;
(d)the Auditor-General of South Africa;
(e)the National Consumer Commission; and
(f)any such structures or agencies as may be legislatively prescribed or necessary.
(3)The City and Council may not request the Office to—
(a)share any records that might identify any person who has contacted or used the services of the Office;
(b)identify any complainant or person who has contacted or used the services of the Office.
(4)All interactions with and investigations conducted by the Office are confidential.
(5)All mediation or conciliation proceedings referred to in Section 9(1)(b) are without prejudice to the rights of any party.
(6)No employee may retaliate against—
(a)any complainant or person who has contacted or used the services of the Office; or
(b)the Ombudsman or any staff member of the Office.
(7)If any employee contravenes subsection (6), the Ombudsman may recommend that disciplinary action be taken against the employee.
(8)Subject to any other applicable legislation, the Ombudsman and the staff members of the Office are not liable for any finding, or corrective/remedial action made in good faith or made known in terms of this By-laws.

7. Investigations

(1)The Office must investigate—
(a)a complaint referred to it in terms of Section 4(1); or
(b)on the instructions of the Ombudsman, any matter falling within the jurisdiction of the Office contemplated in Section 3(2) read with Section 3(3).
(2)For the purpose of an investigation contemplated in subsection (1), the Office may—
(a)demand in writing that any employee appear before it and to produce any record, book, file, object or document, whether tangible or written or in electronic form;
(b)administer an oath or affirmation to such an employee who appears before the Office;
(c)after the employee has been informed of their right to remain silent, to request the assistance of a fellow employee or union representative, question such employee before him or her under oath or affirmation;
(d)exclude, from the place of examination, any other person who in its opinion should not be present;
(e)enter any premises owned, controlled or managed by the City and while in such premises to examine any record, file, document, book, or object or vehicle as it may consider necessary;
(f)take charge of and remove anything referred to in paragraph (e);
(g)require by written order any employee to assist the Office in any investigation;
(h)require, by written order, that an employee or a department in the City or a Municipal entity provides relevant information within a stipulated timeframe;
(i)request the Executive Mayor, City Manager, any councillor, departmental heads, Managing Directors or Chief Executive Officers to assist the Office in the course of any investigation; and
(j)request any person to appear before the Office by way of a notice prescribed by the Ombudsman, containing particulars of the matter in connection with which the person receiving the notice is required to appear and served on the person either by a registered post, electronic mail or by hand delivery.
(3)If during the investigation or after completing it, the Office considers that the complaint can be resolved by mediation, the Ombudsman must try to settle the complaint.

8. Findings and corrective or remedial action

(1)The Office must after completion of an investigation contemplated in Section 7, compile a preliminary report in writing setting out its findings and proposed corrective/remedial action.
(2)In making a finding, the Office may find—
(a)a complaint to be justified;
(b)that there is insufficient evidence to support the complaint;
(c)the complaint is without merit or vexatious or frivolous; or
(d)the complaint falls outside the jurisdiction of the Office.
(3)In making a finding of corrective/remedial action, the Office must take into account—
(a)the cost of pursuing alternative remedies;
(b)the means of the complainant;
(c)the need for expedition in the resolution of the complaint;
(d)the consequences of any delays;
(e)whether any member of the public is endangered;
(f)the interests of the public; and
(g)any other relevant factor.
(4)The preliminary report must be delivered to any complainant and to the employee or any other person implicated in the investigation and be given the opportunity to comment within fourteen (14) days.
(5)The Ombudsman must, after taking into account any comments received, compile in writing a final report setting out the Ombudsman’s findings and corrective/remedial actions and the reasons for those findings and corrective/remedial actions.
(6)The Office must deliver the final report to—
(a)any complainant;
(b)any person implicated in the investigation;
(c)the responsible departmental head; and
(d)the City Manager or relevant Chief Executive Officer/Managing Director.

9. Resolution of complaints

(1)For the purpose of settling a complaint or any matter in respect of any finding made in terms of section 8(5), the Ombudsman may direct that the complaint or matter be settled in one or more of the following ways:
(a)by negotiation between the Ombudsman and employee/complainant to obtain any lawfully sought redress;
(b)by arbitration, conciliation or mediation facilitated by the Ombudsman between the complainant and the employee concerned;
(c)by the employee apologising to the complainant;
(d)by issuing corrective/remedial action to be taken by the employee concerned to remedy the complaint;
(e)by recommending that disciplinary action be taken against the employee; and
(f)by any lawful means that will achieve a settlement of the complaint.
(2)If the Office issues corrective/remedial actions, the City Manager, departmental head, managing director, or chief executive officer must inform the Office in writing within fourteen (14) days of receipt of the corrective/remedial action whether the City Manager, Departmental Head, managing director or chief executive officer agrees to implement the corrective/remedial action or does not agree to implement the requisite action.
(3)If the City Manager, ddepartmental head, managing director, or chief executive officer agrees to implement the corrective/remedial actions, the City Manager, departmental head, managing director or chief executive officer must inform the Office of the steps taken and the outcome in writing within fourteen (14) working days.
(4)If the City Manager, departmental head, managing director, or the chief executive officer does not agree to implement the corrective/remedial action, the City Manager, departmental head, managing director, or chief executive officer must provide written reasons within fourteen (14) working days.
(5)If the City Manager, departmental head, managing director or chief executive officer fails to act, the Office of the Ombudsman must deal with the matter as set out in Section 16.

Chapter 4
General

10. Appointment and tenure of the Ombudsman

(1)The Ombudsman is appointed by Council in terms of this By-laws read with Section 156 (2) and (5) of the Constitution.
(2)In addition to the skills, expertise, competencies, and qualifications prescribed, the Ombudsman must—
(a)be a South African;
(b)be a fit and proper person to hold public office;
(c)be a retired judge of the high court; or
(d)be admitted as an advocate or an attorney who has, for a period of at least 10 years after having been admitted, practised as an advocate or an attorney; or
(e)be qualified to be admitted as an advocate or an attorney who has, for a cumulative period of at least 10 years after having qualified, lectured in law at a university; or
(f)have specialised knowledge of, or experience in, the administration of justice, public administration, or public finance, for a cumulative period of at least 10 years; or
(g)have acquired any combination of experience mentioned in paragraphs (d) to (f) for a cumulative period of at least 10 years.
(3)Notwithstanding subsection (2), no councillor can be appointed as the Ombudsman.
(4)The Ombudsman is appointed for a period of 5 (five) years.
(5)The Ombudsman may be suspended or removed from office only in terms of the Local Government Disciplinary Regulations for Senior Managers.
(6)If the position of the Ombudsman becomes vacant, Council must, subject to this section and the Municipal Systems Act, in its next Council meeting or as soon as it is reasonably possible to do so, appoint another person from employees of the City that qualify for the position, as acting Ombudsman.

11. Powers and duties of the Ombudsman

(1)The duties of the Ombudsman are to—
(a)at his or her own instance or on receipt of a complaint investigate any acts, omissions or complaints contemplated in Section 3(2);
(b)endeavour to resolve any dispute or rectify any act or omission by—
(i)arbitration, mediation, conciliation or negotiation;
(ii)advising, if necessary, any complainant regarding appropriate remedies; or
(iii)any other means that may be expedient in the circumstances;
(c)at any time prior to, during or after an investigation, if the Office is of the opinion that the facts disclose the commission of an offence, to bring the matter to the notice of the relevant authority;
(d)make findings and corrective/remedial actions in order to resolve a dispute or complaint;
(e)if the corrective actions are not implemented, to refer the corrective actions for determination in terms of the dispute resolution procedure contemplated in Section 17;
(f)investigate and report on the observance of human rights by the City; and
(g)conduct education and awareness campaigns on human rights in the City.
(2)The Office may summon or cause to be summoned any person to appear before the Office, and, if applicable, to submit to the Office any book, document, or object, as specified in terms of the summons, which may be relevant to the matter before the Office.
(3)In the exercise of these duties, the Office must at all times—
(a)be impartial;
(b)act without fear, favour, or prejudice; and
(c)act in a manner that is procedurally fair.
(4)The Ombudsman is responsible and accountable, subject to the City’s policies, for—
(a)the management of the Office in accordance with this By-laws;
(b)the appointment, management, training of the Office’s members of staff; and
(c)the maintenance of discipline of those members.
(5)The Ombudsman and staff employed in the Office shall not act in any way that compromises the credibility or integrity of the Office.

12. Remuneration and other terms and conditions of employment of the Ombudsman

(1)The remuneration, terms and conditions of employment of the Ombudsman shall be made in terms of the Regulations on Appointment and Conditions of Employment of Senior Managers, 2014.

13. The staff establishment and staff members

(1)The Office consists of the Ombudsman and such other staff members considered by the Ombudsman to be necessary for the efficient and effective exercise of the powers, functions and duties provided for in this By-laws, subject to Council policy.
(2)The Council’s policy framework contemplated in Section 66(1) of the Municipal Systems Act must make provision for the inclusion of the Office’s staff establishment within the City’s staff establishment developed in terms of that section.
(3)If the staff establishment of the Office is to be altered, the Ombudsman must develop an amended staff establishment for the Office in accordance with the Council’s policy framework and submit it to the City Manager for inclusion in the City’s staff establishment.11The current staff establishment of the Office will be contained in the transitional provisions which means that only alterations to the staff establishment need to be included in the new By-law.
(4)Staff members of the Office must—
(a)serve impartially, independently, perform their functions in good faith, diligently and without fear, favour or prejudice;
(b)not use their position for private gain or to improperly benefit another person; and
(c)not act in any way that compromises the credibility or integrity of the Office.
(5)Staff members of the Office may sit on committees of the City’s administration provided that if any complaint is made or an investigation is instituted in respect of that committee, the staff member sitting on that committee may not participate in any of the processes of the Office in respect of that complaint or investigation.

14. Functional reporting

(1)The Ombudsman must on a quarterly basis report to Council, through the Speaker, on—
(a)the number of complaints received;
(b)the outcomes of investigations;
(c)all corrective/remedial action;
(d)all resolutions;
(e)all findings;
(f)all referrals made in terms of Section 5;
(g)the activities of the Office; and
(h)any issues arising out of completed or referred investigations.
(2)The Ombudsman may submit a report to Council, through the Speaker, on the findings of a particular investigation if—
(a)it is in the public interest; or
(b)it requires the urgent attention of Council.
(3)The Ombudsman may, if it is in the public interest, publish any finding or corrective/remedial action in a final report contemplated in Section 8(5) and any determination made in terms of Section 17(2).

15. Administrative reporting

(1)The Ombudsman must report to the City Manager at the intervals in accordance with the City’s policies with regards to the following:
(a)budget expenditure in accordance with Section 14(4);
(b)performance appraisals;
(c)supply chain management matters;
(d)employment-related matters; and
(e)any other information that is necessary to account to the City Manager and required by the City Manager in terms of applicable legislation.

16. Dispute resolution

(1)For the purposes of this section, a dispute means any dispute arising between the City Manager, managing director, departmental head, or chief executive office and the Ombudsman in respect of the implementation of this By-law, including the decision not to implement any corrective/remedial actions referred to in Section 9(4) or the failure to implement corrective/ remedial actions referred to in Section 8.
(2)The managing director, chief executive officer, departmental head, or the Ombudsman may refer a dispute contemplated in subsection (1) to:
(a)the City Manager/Board, failure by the City Manager/ Board to resolve the dispute will result in the dispute being referred to the Executive Mayor;
(b)failure by the Executive Mayor to resolve the dispute, will result in the dispute being referred to the Council through the Speaker.

17. Public awareness, education and participation and the advancement of human rights

(1)In order to promote awareness of the Office and its roles and responsibilities and to promote a culture of human rights, the Office may—
(a)embark on sustained advocacy, public education and awareness campaigns;
(b)conduct information clinics; and
(c)where necessary, address the requirements of communities and civic bodies within communities for their effective engagement with the Office and for their effective engagement with the Council.
(2)The Office must—
(a)promote respect for, and awareness of, human rights and a culture of human rights;
(b)promote the protection, development, and attainment of human rights; and
(c)monitor and assess the observance of human rights.
(3)In pursuit of this section the Office may—
(a)make corrective/remedial actions to Council to enhance the promotion and implementation of human rights; and
(b)undertake studies and make corrective/remedial actions, based on those studies, to Council on matters relating to human rights.

18. Disciplinary offences

(1)Any employee of City who fails to comply with any lawful instruction or request for information by the Ombudsman acting in terms of the provisions of this By-laws shall be guilty of misconduct and may be charged as such, in accordance with the Municipality's Disciplinary Procedure and Code or Regulations for Senior Managers, whichever may be applicable.

19. Offences and penalties

(1)No member of the public may:
(a)insult or abuse the investigating officer or the Ombudsman;
(b)act in a manner that would have the effect of hampering, hindering, obstructing or subverting an investigation.
(2)Any member of the public found guilty of contravening this By-laws, shall be guilty of an offence and upon conviction, be liable to a fine or imprisonment to a maximum period of three (3) months or such fine or imprisonment.

20. Application of the By-laws

(1)This By-laws applies within the area of jurisdiction of the City of Johannesburg and in addition to any applicable national or provincial law and it further binds the City and Council.

21. Repeal and transitional provisions

The Establishment of the Office of the Ombudsman for the City of Johannesburg By-laws, 2014 is hereby repealed subject to the following:
(a)the Ombudsman appointed in terms of that By-laws is deemed to be the Ombudsman under this By-laws;
(b)the staff members appointed to the Office of the Ombudsman established under that By-laws are deemed to be staff members of this By-laws;
(c)the complaint form in that By-laws remains in force until the Ombudsman prescribes a form in terms of Sections 4(1) and;
(d)any complaints and investigations under that By-laws are deemed to be complaints, and investigations made under this By-laws.

22. Short title and date of commencement

This By-laws is called the City of Johannesburg: Ombudsman By-laws, 2023 and takes effect on publication in the Provincial Gazette.

Schedule 1

Repealed By-laws

Number and yearName of By-lawExtent of repeal
Local Authority Notice No. 438, Provincial Gazette No 80 dated 28 March 2014.Establishment of the Office of the Ombudsman By-laws, 2014Whole
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History of this document

28 February 2024 this version