Independent Communications Authority: validity of Councillor's appointment: Public Service Commission's Monitoring & Evaluation of Department of Communications

Meeting report

Independent Communications Authority of South Africa (ICASA): Appointment of Councillor who was disqualified in terms of the Act
Advocate Michael Donen, Senior Counsel, briefed the Committee on the legal issues surrounding the appointment of an ICASA Councillor by the Minister. He noted that the Independent Communications Authority Act, No 13 of 2000, (the Act) set out the circumstances in which a person would be disqualified from appointment to the ICASA Council. He noted that the ICASA Councillor in question had a financial interest in the electronic communications or broadcasting sector at the time of his appointment, and despite undertaking to divest himself of this interest prior to his appointment, he had failed to do so and therefore could not legally have been appointed.

He therefore advised the Committee that this Councillor’s appointment by the Minister was ultra vires and of no force and effect. The principle that the Executive had no power beyond that conferred by the Act was well established in South African law, as illustrated by two Constitutional Court judgments that were provided to the Committee (see paragraph 12 of the written opinion).

The Committee had also asked Adv Donen to comment on the validity of any proceedings attended by the Councillor, and participation in or voting at a Council meeting in relation to any matter before the Council in which there was a conflict of interest. He noted that the Act provided that a decision of the Council would not be invalidated merely by reason of any irregularity in the appointment of a Councillor, or the fact that any person not entitled to sit as a Councillor had sat as such at the time when the decision was taken.

He advised the Committee that the Minister had to refer the invalid appointment to the National Assembly, who would effect the Councillor’s removal from the Council in terms of Section 8(1)(f) of the Act. The invalid appointment and continued tenure of the disqualified Councillor constituted a situation where removal must be done. It was doubtful whether a court could entertain a review of the invalid appointment of the Councillor while the alternative remedies still existed and before all remedies in the Act had been exhausted.

Discussion
Ms P De Lille (ID) asked whether any claim could be made for any repayment of amounts that the Councillor might have received between the time he was appointed and the cancellation of the appointment, through the process suggested by Adv Donen.

The Chairperson wanted to know if there was any alternative course for Parliament to take, since it was clear that the invalidity of the Councillor’s appointment was through no fault of his own. He asked if the matter could be taken to an independent tribunal or judge for consideration. Parliament had been too intimately involved in the interview and appointment process. It presented an ethical challenge to request Parliament to decide on the legality of an appointment that they had recommended.

Mr N Van Den Berg (DA) asked if it was possible for the Councillor to argue that he had not been at fault, when appointed by the Minister

Adv Donen responded that the Committee could not make assumptions about the course of action that could be taken. The legislation stipulated the process that Parliament had to follow. The Act was clear on the mechanism by which the appointment had to be set aside. He reminded the Committee that it had been Parliament that elected to have the law drafted in a manner that prevented the courts from intervening, if another remedy was available. He furthermore responded that the Councillor’s appointment was being dealt with in terms of legality of the appointment, and had nothing to do with the merits of the Councillor as an individual.  The setting aside of the appointment would not degrade this Councillor’s reputation. It was a course of action that was necessary in order to give effect to the provisions of the law and to cure a defective appointment. The Councillor could always be re-appointed once the defect in legality had been cured.

Public Service Commission Briefing on the Monitoring and Evaluation Report
Mr Indran Naidoo, Deputy Director General: Monitoring and Evaluation, Office of the Public Service Commission, briefed the Committee on the Public Service Commission (PSC) Monitoring and Evaluation (M&E) system. This looked at the extent to which government departments complied with the nine basic values and principles that governed public administration in terms of the South African Constitution.

The PSC’s M&E system used rating for scoring performance against defined standards. The PSC had come up with a five-point scale that had a descriptor of performance, measured against certain principles. The PSC tried as much as possible to remove subjectivity from the rating system, and to be as objective as possible.

The Department of Communications’ (DOC) average performance, in terms of the rating system, was 39%. This was poor performance against most of the standards. However, he indicated that an average could sometimes be misleading. The Department had achieved a performance rating of excellent (with a score of 100%) with respect to impartiality and fairness. It had also achieved a good performance rating in accountability, with a score of 65%, and achieved adequate performance in ethics, where a score of 60% had been obtained.

The Department had done well in certain areas, such as achieving 15 years of unqualified audit certificates. This was an unusual occurrence in government departments and a remarkable achievement. However, in other areas there was a still a great need for improvement. There were 24 recommendations in the M&E report and the PSC would do a follow-up on progress made with the implementation of these recommendations within six months of delivery of the report. The PSC believed that all departments that implemented PSC’s recommendations would score well in the next M&E cycle. This tool was not a secret and was available on the PSC website, so it was common knowledge what the PSC was looking at and what it wanted to find.

The report detailed the DOC’s performance with respect to each of the principles forming the basis of the performance measure. These were professional ethics, efficiency, economy and effectiveness, development-oriented public administration, impartiality and fairness. Further principles were whether there had been public participation in policy-making, accountability, transparency, good human resources management and career management and representivity.

The DOC had scored a low 10% in terms of efficiency, economy and effectiveness, because it was unable to quantify upfront its standard of efficiency and economy. Its performance indicators were not always stated in quantifiable terms and therefore the efficiency of output had not been clear to the reader. It was also difficult to link performance reports with the indicated performance and output targets in the strategic plan. The PSC had spent six months going through a huge amount of information and found that the Department had only achieved 2% of its outputs within the stipulated time frame. There was no achievement information provided against 66% of the outputs, and much of the information could not be validated as a result. The PSC relied very much on the information provided to it.

The Department had scored 0% for development-orientated public administration. This was important in determining the extent to which the Department reached out to communities and contributed to their development. The PSC had not received any information on this from the Department and had thus awarded 0%.

Impartiality and fairness related to the quality of decision-making in the Department. This was really about promoting the idea that the Department had to substantiate the decisions it made and must provide reasons and feedback to affected persons. The PSC had found that all decisions taken were justified and fair considering the evidence. All decisions had been clearly communicated, with appropriate notice given, as well as the right to appeal being made clear.

The DOC had scored 40% when it came to public participation in policy-making. The DOC at the time had not had a policy on policy and participation by the public. It had a system to obtain inputs in its policy-making process. However this process had to be formalised in a policy framework or guideline. The extent to which the DOC formally responded to public comments could not be assessed, as the Department had failed to submit the necessary evidence.

The briefing also detailed the specific elements measured with respect to accountability, transparency, good human resource and career management and representivity (see attached presentation for details).

Discussion
Ms P De Lille asked where procurement and tenders were evaluated amongst the nine principles that had been presented to the Committee, and whether the PSC made any assessments on these aspects.

Mr Naidoo responded that the PSC did not evaluate procurement and tenders as part of its M&E process. It drew on the report of the Auditor-General and other reports from National Treasury that would indicate the number of tenders that had been issued. PSC did not encroach on the work of institutions that had the capacity to do this properly. If there had been any irregularities these would have been brought up in the report of the Auditor-General. The fact that the Department had received an unqualified audit was probably an indication that there had been no tender irregularities.

Advocate Mamaroba Malahlela, Commissioner, Public Service Commission, added that the M&E tool had to be innovative to incorporate other aspects that the principles might not cover. He pointed out that another problem with many departments was that they wanted to “think inside the box” because it benefited them. For instance, the system could report on cases of misconduct within a department, but if the department gave the detail of that misconduct it was possible that further problems, such as tender irregularities, may be revealed.

Ms De Lille noted that in some cases DOC had been given a rating of 0% because information was not given. She asked whether there was any sanction or corrective action taken by PSC if repeated requests for information were ignored, other than giving a zero rating.

Mr Naidoo responded that when PSC made the evaluation a researcher at the PSC was provided as a contact point for the Department. A paper trail was kept noting the number of times that information was requested and when such information was not obtained. If information was not provided by a certain date then PSC would complete that evaluation and give a negative result to the Department. Quite often, the reason why PSC did not get information was because the information was not available. The instrument stating what the PSC needed had been in the public domain for decades, and it really did not expect to have a problem accessing that information. The M&E was an accountability tool and the PSC could not constantly engage on it; it was necessary at some point to conclude the evaluation.

Adv Malahlela added that there had been a number of reports where there had been principles that had not been assessed, because the departments concerned had not been cooperative. The PSC had resolved that this would be the last batch of reports where certain principles were not assessed. An official who failed to cooperate with request for information could now be found guilty of misconduct. If information was still difficult to obtain from the department concerned, then the PSC would summon the Minister and inform him or her of any uncooperative conduct by any official towards a PSC assessor. He added that if the Executive did not comply, then the PSC was empowered to report the matter to the police, to cause the arrest of the Executive. He pointed out that it was possible to have the Executive arrested simply because a department had not provided documentation.

Ms R Morutoa (ANC) asked when the evaluation on the recommendations in the M&E report would be done. She asked for clarity whether this was done after six months or within a shorter time frame.

Mr Naidoo responded that PSC would formally request interim reports after three months. However if, within a period of six months, a set of recommendations had not been implemented this indicated a serious problem in terms of compliance and accountability within a Department. The PSC therefore had time frames which they believed were reasonable. PSC was cognisant that in some instances the recommendations would require that policy be put in place, but it wanted to put in place recommendations that involved departmental engagement. PSC believed that six months was adequate, given that the M&E itself took six to seven months.

Mr E Kholwane (ANC) commented that he had always argued that departments were service providers to the general public, who were beneficiaries of the services. He asked if there was a mechanism, firstly, to identify who were the beneficiaries, and whether they were able to comment on how they were being served by the department.

Advocate Malahlela responded that the M&E system was evidence based and PSC did not necessarily visit particular sites for inspections to verify information provided by the departments.

Mr Naidoo said that one of the limitations of the M&E system was that PSC was essentially drawing on information provided by the department being assessed. The PSC, however, also evaluated information on how the departments interfaced with clients and there was a whole section in the DOC report about policy and Information Communication Technology (ICT) engagement, where all the money had been spent but there had been nothing to show for it clearly indicating that there had been stakeholder and client liaison. The PSC also had citizen satisfaction surveys and unannounced visits, which enabled PSC to look at what was happening.

Ms W Newhoudt-Druchen (ANC) asked, in relation to slide 4, showing the rating system,  how the PSC arrived at the percentage. She asked if the rating was a PSC rating or if it was jointly developed with the DOC.

Mr Naidoo responded that there was a rating system that was based on evidence. For example, when the PSC looked at the first principle, relating to ethics, a value would be obtained, then fed into a spreadsheet that automatically calculated the rating. If a department was provided with a certain score in the PSC draft report, PSC expected the department to say if it disagreed with the score, in which case PSC would ask for further evidence to support a revision of that score. The score would stand if the department did not request a revision or provide alternative information, through engagement with the PSC. There had been many instances where scores had gone up significantly after departments had disagreed with low scores and provided additional information for their scores to be revised.

Mr Naidoo added that as far as the rating system was concerned, it could not be “tweaked” either by the Department or the PSC. It was automated and was processed electronically. It was quite a fascinating system that allowed PSC to look at many interesting things and come up with knowledge about a department’s performance.

Department of Communications response
Ms Mamodupi Mohlala, Director-General, Department of Communications, submitted a response to the PSC briefing.

She asked if there were any incentives for the DOC to comply with the recommendations, as the PSC had spoken of sanctions, but not of incentives. She hoped that the Department’s staff would be given competitive salaries that would motivate them to deliver on these expectations. She noted that the report by the PSC was historical, with any transgressions relating to matters in the past. The current administration of the Department unfortunately had to live with that history and deal with them in the best way it could, but she felt that it was not fair to put the blame on the current administration for past transgressions. However, the DOC acknowledged what the PSC had submitted, and was grateful for the opportunity to engage with this report with Parliament.

She noted that DOC’s current management was not in agreement with some of the specific issues, despite the fact that it was not the accounting authority at the time. The Department, looking at the facts and the evidence that had been presented, did not understand some of the conclusions reached by the PSC.

Ms Mohlala acknowledged that there had been repeated requests for information and that information had not been provided. However, she requested documentary proof of the requests and the failure to respond to those requests. It was imperative that this be sorted out, in line with the spirit of taking the PSC more seriously, and the consequences that lay ahead for failure to provide information. She wished also to engage with the staff responsible for non-compliance.

The meeting was adjourned