Prior to the South African Human Rights Commission presenting its Strategic Plan and Annual Performance Plan, the Committee Con gave an overview on the SAHRC's mandate. Members were keen to know about its involvement within the Forum on Institutions Supporting Democracy.
The South African Human gave a breakdown of its 2014/15 budget and providing an update on human rights abuse cases currently under its investigation, including its work at the Marikana Commission of Inquiry. The Deputy Chairperson was particularly concerned to know what happens to the reports which are tabled in Parliament by SAHRC. Specifically she asked about what carry-over mechanisms were in place for the SAHRC Report on the Right to Access Sufficient Water and Decent Sanitation in South Africa: 2014, which was tabled in the last Parliament, because the recommendations contained therein have not been implemented. She spoke to the SAHRC Report on PAIA which detailed high levels of non-compliance by local government and service delivery departments, particularly on socio-economic rights and asked what follow up the Committee engages in so Parliament as a whole ensures the recommendations are dealt with and government is held accountable for its remedial actions.
Discussion centred on the specifics of SAHRC's plans for fulfilling its prioritised mandate of human rights advocacy.
The Public Protector in her Annual Performance Plan and budget, strongly emphasised its underfunding which has resulted in 41% of its approved posts being vacant and no funds for the improvement of ICT infrastructure. The underfunding was critical as it is affecting the institution's operational capacity. Some Members were agitated by the lack of funding. However, a large portion of the discussion focused on a comments made by Mr B Bongo (ANC) warning the Public Protector that it needs to be wary of compromising its integrity through the adoption of political postures. Opposition members took issue with these remarks, asking the Chairperson to rule this out of order but this was not done. Aside from this the discussion centred on the Pubic Protector’s contingency plans to operate without the much-needed funds and the viability of a merger amongst Chapter Nine institutions which have overlapping mandates, a theme which was also picked up in the discussion with the South African Human Rights Committee.
SAHRC briefing by Committee Researcher
Ms Gillian Nesbitt, Committee Researcher for Justice, gave a brief overview of the South African Human Rights Commission (SAHRC or the Commission) with emphasis on oversight matters relevant to its mandate. Its original enabling legislation was pre-constitutional and referred only to the Interim Constitution, causing interpretational issues for its broad mandate. The new South African Human Rights Commission Act (No 40 of 2013), signed into law in January by the President, the Promotion of Access to Information Act (PAIA) and the Promotion of Equality and Prevention of Unfair Discrimination (PEPUDA) read together prescribe reporting, monitoring and protection responsibilities relating to human rights for the SAHRC. As an A rated human rights institution, as accorded by the United Nations, it is also bound by the Paris Principles.
She noted that the SAHRC has been changing operationally and has been restructuring over the past three years, with a focus on its protection mandate. This has resulted in a complaints manual in all 11 official languages, with a child friendly version in the pipeline. Now the Commission is starting to shift its focus to its advocacy mandate and speak of outreach in their strategic documents with allocations to match. The shift has manifested through efforts such as mobile human rights clinics and targets have switched towards the expansion of outreach into marginalised and rural communities. This is necessitated by the SAHRC having only nine branch offices, yet these are all urban based. The SAHRC also has annual themes - last year it was water and sanitation, this year it is business and human rights. Annual reports are produced on PAIA, equality and economic and social rights. The SAHRC conducts its own violations investigations, is involved in training the South African Police Service, has on-going work for the Marikana Commission and has done various investigations for the Departments of Health and Social Development.
Turning to the budget of the SAHRC, it is R128.1 million, which is a minimal change in real terms from the previous financial year. This raises the question of how the SAHRC will manage to increase its outreach and programmes with a more constrained budget than the previous year. The Commission has however spoken of space for innovation such as the use of SMS technology and edutainment programmes. The previous Committee was understanding to the SAHRC's budget issues and consistently supported it in the BRRR reports. The effect of budgetary constraints in 2013 was that the SAHRC was faced either with closing three provincial offices or freezing 13 managerial posts, the latter of which Ms Nessbitt believes was chosen by the Commission. Other cost saving measures included, sharing accommodation with other chapter 9 institutions.
The SAHRC has three programmes: Administration, the Protection of Human Rights programme and the Research, Monitoring and Evaluation programme. The Protection of Human Rights programme has received an increased allocation in line with its focus on advocacy and outreach. The largest allocation for the SAHRC goes to personnel costs. Following four years of unqualified audits, the Commission received a qualified audit in 2013/14, with the Auditor General citing issues with IT governance and inadequate controls for asset management. In light of this, SAHRC took disciplinary action against officials and said that it would invite the Auditor General back for an interim audit.
Issues relating to the budget constraints are evidently that it impacts on operational capacity. In light of this, SAHRC has chosen to innovate and make use of donor funding to make up the shortfall. The Office on Institutions Supporting Democracy (OISD) was set up under the Deputy Speaker in the Fourth Parliament, because a number of the Chapter 9s felt they were not engaging sufficiently with Parliament; however Ms Nesbitt was unaware of the progress of this office. The Commission has highlighted its intention to strengthen stakeholder relationships, however they do not identify these stakeholders, nor do they speak about the Forum for Institutions Supporting Democracy (FISD). This is disappointing because this is a forum set up by the Chapter Nine and Ten institutions. The final issue the researcher noted was that the SAHRC was thinking of developing programmes on things not covered by their broad constitutional mandate.
Ms C Pilane-Majake (ANC) asked whether there was any activity by the FISD.
Ms Nesbitt replied that she was disappointed not to have seen information detailing such interactions in the SAHRC strategic plan. All she had found was mention of the various resolutions for involvement in the FISD.
As an aside, Ms Lewis, an OSID representative, reported that although she was not intimately involved with the agenda or processes of the FISD, they do meet quarterly. In accordance with a decision taken on 30 October 2013, Parliament's presiding officers met with all the chairpersons of the Chapter Nine institutions, and agreed that the OSID will be represented at the FISD. For the first time last week, the acting head of the OSID attended a FISD meeting which he reported as being vibrant and the parties were able to determine common issues which they felt were relevant.
The Chairperson asked if it is envisaged that the Committee will be represented at the FISD.
Ms Lewis replied that at present she was only aware of the Chairpersons and Secretariats of the various Chapter Nine institutions as part of the forum, however she could make the necessary enquiries.
The Chairperson responded that he was merely trying to enquire whether it was presently part of the plan for the FISD that the Committee be represented, but would appreciate Ms Lewis' enquiries.
South African Human Rights Commission (SAHRC) presentation
Adv Mabedle Lawrence Mushwana, SAHRC Chairperson, congratulated the Members on being elected and stated that the SAHRC was ready to work with the new Portfolio Committee on Justice and Correctional Services, picking up where the old Committee left off. He then asked for the SAHRC's Chief Executive Officer to lead the presentation.
Overview of Strategic Plan 2014-2017& Annual Performance Plan (APP)
Mr Kayum Ahmed, SAHRC CEO, said that with the introduction of a new set of Commissioners in 2009/10 the SAHRC had adopt a fresh vision, mission and values, with the focus being its human rights protection mandate. This resulted in improvements in complaints resolution rates from 79% in 2012/13 to 93% in 2013/14; he noted that this was an unaudited figure. This was achieved through capacity building in SAHRC Provincial Offices to ensure that there is sufficient staff to deal with the cases brought to the offices. With the start of the new three year strategic cycle the SAHRC leadership has decided to prioritise its human rights promotion mandate, for the 2014-2017 period, because it now has the capacity to deal with an increased number of complaints.
Mr Ahmed listed the nine strategic outcomes identified by the SAHRC:
▪ Use of the broad constitutional and legislative mandate. Here the most important aspect was the understanding that various Chapter Nine and Ten institutions share similar mandates and therefore pooling skills and resources in collaborative efforts are important, this collaboration is aimed to manifest in a central and collective entry point for the public to access all the Chapter 9 institutions. Another collaborative project is the Twenty Years of Democracy Project, working with other institutions supporting democracy to advance the mandate of the SAHRC.
▪ The second outcome was engaging in the legislative process where the promotion of constitutional human rights obligations is involved. The SAHRC has interacted with draft legislation in the past and will continue to do so in order to ensure that SAHRC's full mandate is incorporated and hopes to remain a resource available to help with draft legislation.
▪ SHRC seeks to enhance understanding of international and regional human rights issues. SAHRC plans to engage with UN Special Rapporteurs and other relevant stakeholders in regional and international fora. There are plans to make use of international instruments to improve functionality and impact within and outside its jurisdiction. Part of the strategy will be the monitoring of compliance with international instruments through reports and ratification. SAHRC plans to monitor implementation e.g. the non-ratification of the Covenant on Economic, Social and Cultural Rights.
▪ Enforcing the protection of human rights through alternative dispute resolution (ADR) and litigation. Here section 38 of the Constitution is used for the requisite standing to sue in public interest litigation. However, litigation is costly and ADR will be used where ever possible, as a more efficient alternative.
▪ Intensifying advocacy and public outreach. Here evidence based public outreach and advocacy events are planned because only 10% of South Africans have read the Bill of Rights. The SAHRC plans to conduct baseline studies to get a feel of the landscape and enable targeted interventions through an advocacy strategy. SAHRC plans to creatively use the media to reach the South African population, for example through social media and explore the possibility of video being used to summarise its various reports.
▪ Re-clustering of strategic focus areas to enhance effectiveness. Its starting is the establishment of principles for the determination of strategic focus areas. SAHRC plans to cluster activities on similar rights to more efficiently deal with similar complaints. The skills of Commissioners will be made use of in a coordinated effort with senior staff. The annual thematic area determined from preliminary principles for this year is 'business and human rights'.
▪ Strengthening key stake holder relations is important because of the SAHRC's emphasis on collaboration with other institutions supporting democracy. Briefings with parliament and politicians would be focused on, because the SAHRC's relations in the past have been sub-optimal. Renewed emphasis has been placed on this considering Parliament's crucial positioning as a body for accountability, especially where other organs of state are involved. SAHRC plans to focus on engagement with strategically located stakeholders specifically the Portfolio Committee and the OSID. The Committee could detail the best manner to engage with the SAHRC.
▪ Development of the institution as a learning organisation. SAHRC seeks to become the central reference point for human rights research, develop a knowledge management system for the capture and storage of the research it produces. There is a policy and curriculum review initiative called Know Your Constitution, to revamp the manner in which the Bill of Rights is taught in schools.
▪ The final outcome is the strengthening of capacity to support the delivery of its mandate, especially legislative review. To achieve this the SAHRC has intensified its attraction and retainment efforts for research, legal and investigative skills. It has a skills development programme which identifies talented individuals with the intent of grooming them for future management positions. Each Commissioner has been assigned a strategic focus area such as basic education and children’s rights, as well as being assigned a province and a set of UN treaties. This seeks to fully exploit the skills of the Commissioners.
Mr Ahmed went through the six strategic objectives as identified in the Strategic plan:
1. Promotion of compliance with international and regional obligations
He informed the Committee that Adv Mushwana has been appointed the chairperson of the International Co-ordinating Committee (ICC) of National Institutions for the Promotion and Protection of Human Rights. ICC which is an international body set up to monitor national human rights organisations around the world. The SAHRC plans to participate in a variety of events at the supra-national level, including events with the Network of African National Human Rights Organisations. The aim of this participation is to analyse the resolutions passed, attempt to implement the best practices locally and monitor the implications.
2. The positioning of the SAHRC as the focal point for human rights in South Africa. The SAHR's plans in this respect include the identification of 108 stakeholder engagements. Also, the establishment of 18 provincial clinics, aimed at reaching out to rural and peri-urban communities on issues which give rise to claims and advocacy. The Commission's interaction with Parliament has been highlighted, with a target of attendance at 12 meetings. Section 5 of the South African Human Rights Commission Act provides for the establishment of expert committees on various areas and these will continue to be used by the Commission.
3. The enhancement of and deepening the understanding of human rights and the promotion of a human rights culture. Here the Commission plans to host two national human rights events, including one on Human Rights Day, as well as several provincial human rights days. It plans to produce promotional materials and complete a report on its advocacy initiatives.
4. Advancement of the realisation of human rights. Here the SAHRC is concerned to learn about the real impact of its activities and therefore plans to complete a baseline survey of public perceptions of the SAHRC and human rights, in rural and peri-urban areas. This will allow the Commission to create targeted interventions, as will be reported in its Annual Monitoring and Evaluation Report. It will continue to produce its s184 (3) reports, which monitor the government's progressive realisation of human rights. The SAHRC is currently engaged in data gathering for its 20 years of the SAHRC report and documentary. To enhance efficiency, the SAHRC is completing an Annual Complaints Trends Analysis Report, which details the work done under its protection mandate and this will be tabled with the Committee. The Commission and other Chapter Nine institutions are engage in a feasibility study on the establishment of a one-stop complaints intake centre which will alleviate members of the public from having to determine which institution is most suited to handle their complaint. The Complaints Handling Manual and Procedures are under review with the target of achieving 85% case finalisation. SAHRC has identified two strategic impact litigation cases focusing on socio-economic rights, specifically education and healthcare. Lastly, the Commission plans to conduct four national hearings, including one into conditions on farms similar to one conducted in 2008 and an analysis of whether the recommendations springing from that were in fact put in place.
5. The use and broadening of SAHRC's constitutional and legislative mandates. It will intensify focus on the various pieces of empowering legislation. An example of this is SAHRC Chairperson's involvement with the Equality Review Committee aimed at identifying and rectifying the challenges it faces. SAHRC has introduced law clinics in conjunction with Wits Law School and community sessions on PAIA.
6. Improve its effectiveness and efficiency to support delivery on its mandate. This objective focuses on SAHRC's internal administrative processes. This includes the production of a Performance Management Policy to track individual and institutional performance as a result of the restructuring which produced the new vision, mission and structure for SAHRC. This policy has seen SAHRC move from a 52% to an 80% performance record over the past three years. Knowledge and record management plans had been introduced to retain the information which would be otherwise lost with the change of Commissioners every seven years.
Mr Ahmed highlighted the limited resources with which SAHRC was operating and asked for Members to be cognisant of the broad mandate which the Commission carries. To this end SAHRC put in a request for an additional R32 million in 2013/14 and R16 million in 2014/15. This would leave SAHRC's ideal budget at R148 million, as requested from and acceded to by the previous Portfolio Committee which had stated in its Report that: 'it was appalled that the Commission lacked the funds to travel internally to undertake investigations or stakeholder engagements'. The previous Committee had acknowledged that the Commission would require further funding to cater for the SAHRC's chairing of the ICC and commissioner travel. The previous Committee therefore recommended additional funding of R37 million and R21.4 million in the subsequent years. However, when SAHRC presented this to National Treasury it responded that the funds were not available and rejected the request. Mr Ahmed asked the Members to keep this history in mind when SAHRC presented on its 2015/16 budget later this year.
Turning to the actual allocation received for 2014/15 SAHRC received R128 million, as opposed to the R165 million which it had requested. The largest portion of the allocation was spent on personnel costs at R80 million. There was a significant decrease in the budget provided to the office of the CEO, which was shifted to the office of the Chief Operations Officer to allow her to engage more robustly at the provincial level. In line with the new strategic focus area there has been a 167% increase in the amount dedicated to the Human Rights Advocacy programme leaving its budget at R1.9 million, with a concomitant decrease in the legal services budget of 56% or R1.5 million.
Update on Matters being Litigated
Mr Ahmed outlined the major cases SAHRC is involved in. The Commission dealt with a total of 9 633 cases in 2013/14. Of these 4 237 were enquiries, requiring advice or information, but not investigation, falling within the mandate of SAHRC. 5 238 cases, including transfers from other institutions supporting democracy, were handled by SAHRC. The top five areas of cases finalised by the Commission in the fourth quarter of 2013/14 were: arrested, detained and accused persons (13%); just administrative action (12%); equality (11%); labour relations (10%); and healthcare, food water and social security (7%).
The key investigations handled by the Commission included participation in phase one of the Marikana Commission of Inquiry looking into police culpability. Through its involvement in the Marikana Commission SAHRC was able to produce expert evidence from Mr Gary White, who has been advising on public order policing for 30 years, and testified that the South African Police Service did not have an adequate plan of action. Prof Christof Heyns, United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions gave evidence before the Marikana Commission. Commissioner Danny Titus produced evidence on SAHRC's involvement in this area. The SAHRC conducted cross-examinations and produced evidential analyses on the evidence before the Marikana Commission.
Phase two of the Marikana Commission intends to address the long term, social and environmental causes of the tragedy at Marikana. The SAHRC believes this is the most important phase of the Marikana Commission and has attended a number of seminars held by the Marikana Commission. The Commission has requested discovery of documents germane to the causes of the grievances and breakdown in labour relations, including the Social Labour Plan system and Lonmin's compliance with it.
Mr Ahmed concluded with a rundown of other important cases the Commission was litigating, including:
- The Wilgehof Primary School case where a teacher was alleged to have asked black pupils what they saw in a mirror he held up and when he received no response he said they saw baboons or monkeys. The first respondent is alleged to have displayed an old South African Flag and a caricature of Mr Julius Malema next to a baboon with its mouth open trying to draw a comparison. The Commission found that the respondent's actions had constituted a clear incident of hate speech as defined in PEPUDA and a violation of the children's rights to equality and human dignity; leading to the suspension of the first respondent.
- Another case was the one brought by Mr Mike Waters a member of Parliament, on the Department of Social Development's failure to enforce the National Child Protection Register. The Commission found that this was a violation of the duty to maintain this register placed on the state by sections 8 and 28 of the Constitution, leading to the Commission monitoring the updating of the register.
SAHRC Chairperson comments
Adv Mushwana, SAHRC Chairperson, explained that the new South African Human Rights Commission Act requires the Commission to be composed of eight commissioners, however presently SAHRC consists of only seven commissioners and it is therefore non-compliant, which could cause problems when the Act comes into operation. He wished to highlight several issues. These included the signing of several memoranda of understanding with the other Chapter Nine institutions and relevant stakeholders, to ensure that SAHRC is kept up to date on actual and academic developments in the human rights sector. He noted that SAHRC found it very difficult to budget for litigation, due to its unforeseen nature, and said that approaching Legal Aid South Africa takes too long to deal with cases. This has led to SAHRC seeking donor funding, to compensate for budgetary short falls. Finally, SAHRC is expected to chair the Equality Review Committee, in this regard he would like to know about members of parliament who were supposed to be elected to this committee and would appreciate this happening so that the committee can function.
SAHRC Deputy Chairperson comments
Ms Pregs Govender, Deputy Chairperson of SAHRC, said she thought that it was important to have Legal Aid South Africa report to the Committee, because it needed to know the scope of legal aid available to the poor and what percentage is dedicated to the undefended and what processes guide this. She was concerned about copies of the Constitution being available in all official languages and asked the Committee to ensure that the Department of Justice and Correctional Services give a commitment on this. She wanted to extrapolate on the strategic focus areas assigned to the various commissioners and said that all Commissioners shared responsibilities regarding business and human rights, food and human rights and PAIA. Specifically on PAIA, she sought clarity on when the Information Regulator will take over certain functions under PAIA, the reform of PAIA and the interim and long term roles of the Commission for PAIA and access to information as a constitutional right.
She was particularly concerned to know what happens to the reports which are tabled in Parliament by SAHRC, as an example she asked what carry over mechanisms were in place for the SAHRC Report on the Right to Access Sufficient Water and Decent Sanitation in South Africa: 2014 which was tabled in the last Parliament, because the recommendations contained therein have not been implemented. She spoke to the SAHRC Report on PAIA previously tabled, which detailed high levels of non-compliance by local government and service delivery departments, particularly on socio-economic rights. She asked what follow up the Committee engages in so Parliament as a whole ensures the recommendations are dealt with and government is held accountable for its remedial actions.
The Chairperson commented that Legal Aid South Africa had briefed the Committee the previous day and then opened floor for Members' comment.
Mr M Redelinghuys (DA) thanked SAHRC for an exhaustive presentation and the good work it is doing on human rights. In 2011 SAHRC had indicated that it was reconsidering its role and it is clear that it indeed was in light of the its plans presented and the number of cases the Commission was handling. He would like to indicate discomfort at the broad view that the Commission is taking in terms of its investigative mandate, because its promotion mandate was its central focus area. He then sought clarity on the impact the promulgation of the new SAHR Commission Act will have on the operations and investigative capabilities of the Commission. He asked what the relation is between SAHRC and other constitutionally mandated institutions, and whether considering the overlap of functions between other Chapter Nine institutions if it has considered pursuing the merger of the various institutions. Lastly, he thanked the Commission for clarity on its planned investigation into conditions on farms.
Ms G Breytenbach (DA) asked for information on its investigation into primary learning materials in Limpopo and if a report has been published. How is SAHRC planning to function without the additional requested funds as recommended by the previous Committee, specifically with reference to its operational capacity?
Mr S Swart (ACDP) emphasised the need for the Committee to have better relations with SAHRC. He suggested that perhaps it would be possible for the Chairperson and SAHRC chairperson to meet more regularly, in order to foster better relations and enable the parties to sort out the implementation of the recommendations and follow up on issues relevant to SAHRC work which fall under other portfolio committee's oversight areas. In terms of the budget, he asked about the status of the audit, considering the qualified audit SAHRC received in November 2013. Has the situation improved and will they receive an unqualified audit next time? On National Treasury’s rejection of the Committee's recommendation for additional funding, perhaps the Committee will have to exercise their powers in terms of the Money Bills Amendment Act and engage the Finance and Appropriations parliamentary committees, because SAHRC not having funds for internal travel is unacceptable. He thanked SAHRC for reports on Marikana and it seems that SAHRC has dealt with possible conflicts. He asked if SAHRC could provide a ball park figure of the financial implications of SAHRC's involvement. Finally, as a member of the previous Committee, he confirmed he had the SAHRC reports, but wondered about their status in the new Parliament and suggested that the committee section needed to look into this and have them put on the agenda, especially the socio-economic report.
Ms K Litchfield-Tshablala (EFF) commended SAHRC for spending a significant portion of its budget on research, because this is more than comparable institutions on the continent spend and shows that SAHRC is truly committed to becoming an organisation of learning. She commended them on its Marikana findings, as it shows SAHRC's dedication to human rights because it was required in a sense to bite hand that feeds it. She said that the human rights advocacy programme has potential to have a deep impact on the psyche of black people in South Africa, who she felt had not yet migrated into a human rights culture. Addressing Commissioner Titus, she asked about challenges in upholding human rights in prisons, where the system is often based on a culture which is premised on the abuse of human rights.
Mr M Maila (ANC) asked if it is possible for SAHRC to investigate the alleged human rights abuses by the labour unions at Marikana.
Mr L Mpumlwana (ANC) said that the work SAHRC is broad and this is indicative of the Commission trying to change the country. He wondered if the Commission had done even a hundredth of this massive task. Racism is alive and it is a norm for black people to be facing such abuses. He asked if SAHRC was working with churches and community based organisations in rural areas, so as to cast the net wider and have everyone covered by the Commission's advocacy efforts. He felt that social media would not be a truly effective advocacy measure, because it is really for the elite and suggested the use of local radio and media to reach marginalised people.
Ms C Pilane-Majake (ANC) commended SAHRC for its good work and congratulated the SAHRC chairperson on his election as the ICC chair. Regarding the requested additional funding, she suggested that having a harmonisation of the functional areas of the Chapter 9s, perhaps through the OSID, will lighten its financial burden. She noted the issues with establishment of the Information Regulator in terms of PAIA. On the qualified audit in 2012/13, the internal audit efforts are a good idea, because then you have early warnings which can help with receiving a clean external audit in the future. She had concerns with the FISD, because there was a lot of talking about it, but not too much coming out of it. SAHRC has said that it intends engaging with the FISD and would like to have some tangible results. For example SAHRC had previously indicated that it intended to share accommodation to save funds and she would have liked to have seen a memorandum of understanding in this regard. She wished to express the concerns she had regarding Marikana, first raised in the Fourth Parliament, because it could be problematic for the SAHRC to be involved in something before another commission, especially given its budgetary constraints.
Ms M Mathapo (ANC) commended SAHRC, however on its advocacy and outreach programme, she asked how SAHRC intends to conduct this programme in poor and marginalised communities, especially considering the Commission's financial constraints which are leading to the closing of offices in Mpumalanga, North West and Limpopo provinces, the most rural provinces, which is contradictory. She emphasised that the media outreach materials need to be in various languages, focusing on the language prevalent in the area. She recommended using traditional councils as the entry point for rural areas and reaching farm workers. Finally, she sought clarity on relations with other bodies like Legal Aid South Africa, which provide aid to the indigent.
The Chairperson asked if the Forum for Chapter Nine Institutions was aware of the Kadar Asmal Report and what their position on this is. He asked about the role of public interests lawyers in the work of SAHRC. On the question of promotion of human rights, he asked what coordination exists here, because the Department of Basic Education and the National Inter-faith Council have a relationship. Does SAHRC have similar engagements? He asked about the position of African human rights instruments, such as the African Charter on the Rights and Welfare of the Child, because the focus seems to be on the UN conventions which do not take into account African culture or context. In Committee engagements with other institutions, the theme of transformation of the legal system as a whole has arisen and he asked what role SAHRC envisages for community justice and whether there is a space for African jurisprudence in the human rights sector, because it could enhance respect for the law among African people. He then spoke to SAHRC's relations with universities he was concerned that while the institutions which SAHRC has engaged, such as the University of Witwatersrand and the University of Kwa-Zulu Natal will help understand concepts, however there is a danger in using only former white institutions, because this will perpetuate the white conceptions of human rights and perhaps engaging formerly black institutions could help in this regard. He said he was aware of the Commission wanting to expand into all provinces and wanted to echo Ms Mathapo in encouraging use of traditional councils to save on infrastructure and other costs. Lastly, he agreed with Mr Swart that there was a need for a mechanism for communication, because it was unacceptable and wasteful to have reports written and these reports get no consideration by Parliament.
Commissioner Mushwana replied that he appreciates the Members’ input and the questions that the delegation is able to answer will be answered and the remainder will be responded to in writing. He began by saying the new Act changes the references from the Interim Constitution to the new Constitution and delineates the relationship between the Commission and secretariat; finally the new Act does refer to international relations, which was neglected in the old Act. Next he spoke about the relationship between the Chapter Nines. SAHRC had met with the Commission on Gender Equality and Special Investigating Unit. Regarding the Kadar Asmal Report which recommends a merger he looked to guidance from Parliament, because Parliament has not expressed a view on the report. This is especially so because whenever mergers are considered, tension arises because there is a concern about SAHRC taking over and consuming the other Chapter Nine institutions. The SAHRC already has issues with UN reporting, because it only recognises one human rights institution per country and the other institutions are the primary reporting institutions for these rights in South Africa. Turning to the FSID, he said it is an attempt to foster communication between the Chapter Nine institution so that they can coordinate their approach to various rights and that SAHRC has approached the Office of the Speaker of the National Assembly for an opinion on the Asmal Report. He said that Mr Titus will speak to the farm investigation, but he wants to emphasise that there have been two farm murder investigations by the SAHRC and now the focus is on farm labourers. He thanked Mr Swart for his suggestion about liaising with Committee and promised to engage with the Chairperson. On Marikana and conflict of interest, he said he was not sure what conflict could arise, because SAHRC first made sure that a right was violated, giving it standing to investigate. The SAHRC identified the need to ensure that it did not duplicate the work of the Marikana Commission but the terms of reference of the Marikana Commission do not contain any reference to human rights, which the SAHRC felt was important, leading to its focus on phase two of the Commission. Regarding the financial impact, Mr Ahmed will detail how much was spent. Responding to Mr Maila, he said that they have not investigated the abuses by labour unions because no complaint has been lodged. However the Commission is currently looking at the deaths which occurred during the recent mining strike, but he takes Mr Maila's point. In reply to Ms Litchfield-Tshabalala, he said it was difficult to deal with human rights abuses in prisons, because of their limited staff however SAHRC had told the previous Committee that it was prepared to engage on this issue. On using other institutions to reach rural communities, such as churches and traditional councils, he said that it is dangerous because you need to be sure that SAHRC's independence is not compromised. On the alleged tendency for SAHRC to focus on ‘limelight’ cases, he said that there was no real difference or classification, all cases are the same to SAHRC, but obviously a violation by people of high status or holders of office creates more interest for the media. Replying to Ms Pilane-Majake, he said that the ICC does not absorb much of his time, because of its use of technology such as Skype, which relieves him of the need to travel.
The Chairperson indicated that time had run out, but would appreciate written responses by Tuesday.
Office of the Public Protector presentation
Ms Thuli Madonsela, the Public Protector, started by congratulating the Chairperson and his colleagues for election to Parliament and the Committee. She opened with a quote from Nugent JA of the Supreme Court of Appeals (SCA), speaking to the constitutional mandate of the Public Protector and its critical role in protecting people against bureaucratic inefficiency and corruption. Towards this end, the Public Protector seeks to balance universal accessibility and effective service delivery, with the limited resources available.
She went on to locate the Public Protector’s constitutional mandate in section 182, read with section 181 of the Constitution, which indicates that its role is to support and enhance constitutional democracy by investigating and redressing the conduct of state affairs where there is suspicion of impropriety or maladministration. She then quoted the Supreme Court of Appeal which has said that the Public Protector is an ombudsman for all state activity and more.
She detailed the additional key statutory mandate areas, which spring from 16 pieces of legislation which mention the Public Protector, but focused on the most important empowering legislation. She said that the maladministration mandate is found in the Public Protector Act (No 23 of 1994), which provides the Office with the power to sentence people, with court ratification, and enables the issuing of contempt of public protector orders, which are similar to contempt of court.
The Public Protector's anti-corruption mandate is found in the Public Protector Act, read with the Prevention and Combating of Corrupt Activities Act (No 12 of 2000), which gives the Public Protector additional powers, conciliation, mediation or anything else necessary, above the investigating powers given under the Public Protector Act. The Public Protector Act gives the Public Protector the power to subpoena any person or information within the Republic and no limit on who they can ask for information according to the SCA. This has been an aid in the Public Protector's dealings with the financial services and telecommunications industries. Through the courts, the Public Protector has the power to search and seize. It is the only agency which aids the Presidency in the enforcement of the executive members’ ethics code under the Executive Members Ethics Act.
The Public Protector is a safe harbour for whistle blowers, along with the Auditor General under the Protected Disclosures Act (No 26 of 2000) and the Public Protector has interpreted this as requiring investigation of the allegations, as opposed to mere storage of the information.
The Public Protector is given the power to review decisions of by the National House Builders’ Registration Council under the Housing Protection Measures Act (No 95 of 1998). The Public Protector has in the past indicated that it feels this is a misplaced function, because this is an important and specialised area of activity and the Public Protector simply does not have the capacity.
The Public Protector currently reviews the decisions of government with regard to PAIA, until the Information Regulator is set up in accordance with the Protection of Private Information Act.
Turning to the Public Protector's higher purpose and strategic objectives, she said that these were still broadly founded on the original five pillars, which include the provision of prompt justice and remedial action and promotion of good governance in the conduct of state affairs. The higher purpose is captured in the statement: 'A conscience of the state to act with integrity and fairness”.
The activities of the Public Protector synergise with government priorities through changes in strategic plan to coincide with NDP and SONA priorities. Importantly Chapter 14 of the National Development Plan (NDP) emphasises zero tolerance of corruption and the need for anti-corruption system made up of relevant anti-corruption agencies including the Public Protector. The State of the Nation Address (SONA) has indicated the need to address weaknesses in procurement, the prevention of business with state by public servants and protection of whistle blowers and the addressing to municipal hotspots.
The Public Protector sees itself as a part of the constitutional architecture against maladministration and corruption which envisages overlapping oversight. The Public Protector has therefore created partnerships with other bodies and generally does not get involved in other institutions activities, unless there is a need for the provision of a particular remedy, such as the Special Investigating Unit and the Hawks which are unable to take remedial action. The Public Protector understands that parliamentary committees are the primary oversight organs and Public Protector provides technical support and uses the Petitions Committees which are able to deal with issues which do not require investigation, speedily. Simple cases such the provision of social grants or pension pay-outs are dealt with using early resolution measures, because the Public Protector has realised the need for it to balance promptitude in its work with the rigour of its work.
Turning to complaints trends she said that 68% of the complaints are lodged against national government, while 32% are lodged against municipalities. The Public Protector indicated that it has encouraged municipalities to create an ombudsman. The recurring themes of the complaints are indifference which is a service failure, where service is denied without really looking at the law, systemic service failure, and non-compliance which is important because it is at the core of the complaints and corruption is a growing issue. She indicated that if the Public Protector had the money, it would set up a unit to deal with over-billing, where more money is billed for than was previously agree. This is because government loses a lot of money through overcharging, where government is charged excessively and therefore does not getting value for money. She indicated that in the United States there are laws against false billing, where government is billed for something that was never delivered. Scope creep in state contracts or tenders is another problem where for example the original tender was for R1 million, but the government is billed far more than this. Lastly, ‘unnecessary service’ is another area where complaints have been received.
Turning to the nature of claims the Public Protector deals with, Ms Madonsela indicated that the Public Protector deals with claims either through intake or by referring them to a better agency. The majority of the cases handled by the Public Protector are bread and butter cases which deal mainly with socio-economic rights. The Public Protector receives many complaints about municipal infrastructure, such as electricity and healthcare. The Public Protector has taken special notice to deal with service delivery protests which are symptomatic of systemic governance failure.
Over the past year the Public Protector has had a staff complement of 333 including just under 100 interns and trainees. The total budget was R199 253 000. It dealt with a total of 33 708 cases by March 2014, of which 24 759 were finalised. It referred a total of 1 321 cases. The Public Protector received new 20 086 cases.
Mr Themba Mthethwa, CEO of the Public Protector South Africa, went through the more specific financial aspects of presentation. He explained that the investment of the Public Protector's per capita for South Africa is R24 per person. The workload per investigator per year is 237 and there are 142 investigators in total. The workload for an investigator per month is 12 new cases in addition to their existing cases, bringing the total to 88 cases. With investigators being required to finish one case per day to meet the targets set to deal with the 13 000 cases active at their offices, the Public Protector is heavily under resourced. In the ideal situation it would have task teams to deal with complex cases and the manpower to deal with 25 simple cases monthly.
He then moved on to the challenges which the Public Protector faces:
a) Human Resources
Mr Mthethwa said that this is the Public Protector's biggest challenge and where funding is the most pressing concern. The Public Protector' organisational structure has been approved by Minister of Finance and the DPSA; however 41% of posts in this structure are unfunded. Compounding the problem are the additional legislative mandates which were not accompanied by increased resources resulting in a lack of operational capacity; for example the Executive Members Ethics Act which requires case finalisation and a report to the President within 30 days which has never been complied with. Retention of the investigator trainees and their further training in terms of the skills development and retention plan modelled on that of the Auditor General's, will cost approximately R22 million and this was only a once off allocation from National Treasury resulting in the programme being cancelled. Finally, the planned call centre has stalled due to lack of funds to staff the operation, which will require a further R18 million.
The Public Protector's proposed solution is the prioritisation of critical posts; the intake of interns to function as trainee investigators; systemic investigations and increased referrals and encouraging institutional ombudsmen, such as the Military Ombudsman; and partnerships with organs of the state. He said that the Public Protector has 'gone to GIZ which is a German agency and to the Americans and everyone who could assist ... in the NGO sector' to get donor funding.
b) Facilities and Infrastructure:
Here Mr Mthethwa began by saying that the Public Protector is in violation of s182 (4) of the Constitution because rural areas do not have equal access to the Public Protector's services, which the Public Protector plans to combat through mobile clinics. The Public Protector suffers from duplications and inefficiency because of the absence of an integrated electronic case management system. In this regard it has contacted State Information Technology Agency (SITA). However an additional R10.5 million will be required for this. The Public Protector has problems with office accommodation and resources for these offices to function efficiently.
c) Financial resources
Mr Mthethwa did not review this portion of the presentation due to time constraints. However, the crux is that the lack of adequate funding has an impact on the core business of the Public Protector, both by impacting the quality and speed of investigations and by causing the institution to be unable to fulfil its full legislative mandate and improve state systems. The nature of the business of the Public Protector entails unavoidable, unforeseen expenses most importantly litigation costs.
The Public Protector's key strategic targets for 2014/15 were:
▪ being accessible to and trusted by all persons and communities: efforts in this regard include eight mobile clinics per outreach office per province per month and five national stakeholder events targeting areas previously unreached;
▪ providing prompt justice including remedial action: here the Public Protector's plans include handling 100% of the simple, early resolution cases within 6 months and to conduct an audit of the backlog cases;
the promotion of good governance in the conduct of all state affairs: here the Public Protector intends to finalise systematic investigations around several key areas of government including RDP housing, health and the administration of estates;
▪ fast-track investigations under the Executive Members Ethics Act of which there are 201;
▪ implement effective business systems and efficiently use financial resources by eliminating the adverse findings from the last audit, the implementation of IFMS and the review and implementation of a case management system;
▪ aim for optimal performance and a service-focused culture through the review of its recruitment and retention strategies; as well as the establishment of an internal audit unit.
Although time constraints prevented Mr Mthethwa's covering this portion of the presentation it included detailed tables covering the budget allocation, the manner in which the Public Protector apportions this and the spending per programme. Points to note here were that the Public Protector has been allocated R217.5 million for 2014/15, although the original budget requested was R300 million. The highest cost for the Public Protector in 2014/15 will be the compensation of employees at R155.5 million. Programme One: Administration was allocated R27.262 million, with R9 million allocated to Facility Management and Logistics, R7.5 million to information and communications technology, R161 000 to research and knowledge management and R484 000 to strategic planning performance management. Programme two: Investigations was allocated a total of R17.167 million, with Public Protector provincial representation receiving the largest allocation at R6.815 million. Programme Three: Outreach was allocated R5.073 million with almost all of it being allocated to outreach education and communication.
Ms Madonsela in conclusion emphasised the external and internal challenges facing the Public Protector. External challenges included, an unduly litigious approach by some organs of state, the nature of the cases dealt with becoming more complex, because the decline in the number of cases is due to the grouping of similar cases arising out of the same situation, there has been an exponential increase in caseload of the Public Protector despite referrals to other institutions supporting democracy. Internal challenges include acute financial and human resources constraints manifesting for example in staff refusing to sign performance agreements which they will be unable to meet resulting in non-compliance with the Public Finance Management Act (PFMA).
Mr B Bongo (ANC) said that staff refusing to sign performance agreements was not in line with the current legislative framework, especially because audits look not only at targets, but at the entity's compliance to legislation. He advised that performance agreements for the later years of the MTEF period be signed, based on projections. He spoke to the issue of funding and said that the Committee will have to take up the matter, because the Public Protector is important as an oversight body, particularly regarding technicalities. On the 41% underfunding he asked for a clear plan, based on the Medium Term Expenditure Framework (MTEF). He took issue with sourcing funds from the Germans and Americans, saying then "we can't detect when a counter-revolution has started, because we do not know those funders and what are their interests...they could give the money and say certain things or do certain things". He turned to case management, saying that perhaps in future a report will be needed in this regard. On the impropriety of the review mandate under the Housing Protection Measures Act, he said they would appreciate proposals for amendments. He was concerned that there was no information on audit findings. Finally he said that, "He would like to remind that the Office of the Public Protector that it is part of the civil service... and their integrity is very important; and we have seen the Public Protector taking certain postures in the media... about the view of our own government when she herself is part of government and we will not promote as the Portfolio Committee the situation where the Public Protector will make political views... and that we should warn the Public Protector to desist from making certain views which are political in nature, because of the integrity of the office she is leading [sic]".
Mr S Swart (ACDP) then called a point of order, saying that the Public Protector is an independent body and he would like specific details if Mr Bongo was going to attack the integrity of the institution and that broad allegations were unacceptable. Further, he asked the Chairperson to rule that the statement is un-parliamentary.
The Chairperson responded that the Member had said that there are certain postures in the media and did not want the Member to elaborate because he felt these were in the public domain and if we were to go into detail, there would not be time. He however warned Mr Bongo not to make generalisations.
Mr M Redelinghuys (DA) requested that the Member retract his warning to the Public Protector and the statement on behalf of the Committee when he said that the Portfolio Committee takes a position, as it had not put anything to a vote. He asked the Chairperson to rule in this regard.
The Chairperson responded that he would rule at the appropriate time, but that he wanted Mr Bongo to finish.
Mr Bongo continued by saying that he did not feel specification would be necessary, as he had only been trying to raise the issue that the Public Protector could be perceived as taking party lines and that this affects the integrity of the office. He reiterates his warning that the Public Protector be careful not to compromise its integrity. He said that the Public Protector is "generally account[able] to Parliament" and that "even in terms of the Act which founds it, it says that it reports to Parliament and we need to see this being done so that we may do proper oversight".
The Chairperson then said to the Members that in this house we have freedom of thought and opinion and there will be conflicts, further that if we regard them all as points of order, the Committee will not make progress.
Mr Redelinghuys said that the Public Protector is increasingly a victim of its own success and that the number of cases was predicted to rise over the last four years by 10 000, unfortunately the funding has not kept up with the increased demand. He then said that "perhaps it is not surprising, Adv. Bongo, that the Public Protector had to turn to external funding... because as they say the prophet is not welcome in her own village. He wanted to emphasise that "the Public Protector is not an extension of government, although it does report to Parliament and is accountable to Parliament, but it is not an extension of Parliament and that any instructions or warnings issued from this Committee on behalf of this Committee without the Committee concurring or taking a vote, is deeply concerning" and would like the Chair to rule on issue. He then asked about the litigation the Public Protector is involved in, which he said mainly involved the security cluster which he described as a loose grouping of government departments which have taken the Public Protector to court and asked for the Public Protector to indicate where the funds for the litigation come from and how it affects the mandated operations of the Public Protector.
The Chairperson then again emphasised that by the nature of the Committees work there will be conflicting opinions and that is allowed, however he will not regard conflicting opinions as points of order.
Mr Swart said that the issue of donor funding is rooted in Parliament not approving sufficient funds for the institution and he felt that the comment that it is counter-revolutionary is out of place and he disagrees with it and submits that it is un-parliamentary. He then suggested that the because of the importance of engagement between the Public Protector and the Committee and the insufficiency of the scheduled interactions, that a similar course of action as suggested in terms of SAHRC is followed with the Chairperson liaising with the Public Protector. He then asked about how the Committee could help with the non-compliance with its recommendations when the Public Protector makes findings, especially against the executive, suggesting the value of Parliament's oversight role. Relating to the costs of litigation, in light of Public Protector's Nkandla report, whether a review application would be filed and if there is sufficient funding to deal with such an application.
Ms C Pilane-Majake (ANC) said that it was a pity that the Public Protector did not have the opportunity to deal extensively with the budget. She therefore asked about the staff complement of the Public Protector, because she had delineated that the Public Protector has 323 staff members, of which 142 are investigators, and so she wanted to know who the other staff members were considering that investigation is the Public Protector's core function. She suggested that perhaps a report detailing who the staffs is and what they are paid. She wanted to remind the Public Protector that the country functions with a limited fiscus and while not asking it to do the impossible she would like it to do adjustments on its own to deal with budgetary constraints. She then asked if the unfunded posts were filled and if so what the people were doing. She then asked for clarity regarding the caseload, specifically how cases are prioritised, what type of cases make up the 9000 case backlog, what type of cases are referred and how long a case takes to complete. Regarding the office accommodation, she said that the Public Protector had previously been looking at alternative office space in order to save money and would like an update. Turning to the R10 million spent on litigation she asked for an explanation as to what litigation this was. She wanted to know how much the planned mobile clinics and stakeholder events are going to cost. She asked for a report on the backlog cases, detailing the specifics of these cases. Lastly, she asked if a feasibility study had been conducted regarding the call centre, because surely aside from capacitating the centre the Public Protector itself would need additional capacity to deal with the increase in cases.
Ms Litchfield-Tshablala (EFF) began by quoting points from the presentation: the caseload of investigators per month being 88, the Public Protector being in violation of s182 (4), the lack of adequate funding affecting core business, 41% of the approved posts being unfunded, the disparity between what was requested and allocated in 2014/15. She wanted to state that the above surprises her and she was concerned that the Public Protector is the most incapacitated of the institutions she has seen present to the Committee and therefore she wanted to propose that the Committee take note of these points when it does its budget vote. Despite this the Public Protector has achieved a lot with the little it has and this can explain the staff's refusal to sign performance agreements. She agreed with Mr Swart regarding the donor funding, because if the government has left the institution in the desperate state it is in it has no choice but to seek donor funding, furthermore the countries mentioned by the Public Protector have diplomatic agreements with South Africa.
Mr L Mpumlwana (ANC) began by saying that there has been a cry for money from all the institutions which have reported to the Committee and wanted to know what the Public Protector thought about the merger of these institutions, especially considering the considerable overlap in their mandatory areas. Secondly, he said that there was an impression, right or wrong, that there was a tendency to prioritise 'limelight cases', at the expense of ordinary people; especially considering that many people coming out of rural areas and townships do not even know about the office. He wanted clarity on the marketing measures which the Public Protector has in place. He said that there was a second impression that the Public Protector, innocently, takes cases from people with political agendas and thereby unwittingly promote these agenda and this would be even more so if the Public Protector is receiving third party funding and said that the Committee can be engaged to help leverage money from the National Treasury.
Ms M Mathapho (ANC) first wanted to express her concurrence with her colleagues on the issue of donor funding. She first wanted to know how the Public Protector prioritises the cases it receives. Secondly, she wanted to know if the Public Protector had an information management system to prevent information leaks. Lastly, she wanted to ask if the Public Protector had found itself in the very compromising position of attending political party events.
The Chairperson then said that from the Public Protector's own account that its mandate is derived from various sources and is very broad and does it think that this could cause conflicts with sister Chapter Nine institutions. Also, whether there were already such conflicts and if so whether the Public Protector thinks that in light of this the powers of the Chapter Nine Institutions should be reviewed. Next he wanted to know if the Public Protector believes that the reason its staff do not want to sign performance agreements is because of the breadth of its mandate which leads to an impossible workload. He asked for the Public Protector's view of the Kadar Asmal Report. Lastly, he asked for an opinion on whether the Forum for Institutions Supporting Democracy could not be used as a clearing house to avoid duplication of work. He then noted that because of time constraints the Public Protector will be required to sum up the important answers and then submit comprehensive written answers.
Ms Madonsela replying to Mr Bongo said that she agreed that the signing of performance agreements should be prioritised. On the issue of donor funding she said that she agreed it was not ideal and that she had rejected GIZ's offer initially exactly for the reasons raised by Members relating to the independence of the office and only once the situation had become critical did she instruct the CFO to approach GIZ. However, the donor funding received was never used for the core investigation business of the Public Protector. Moving on to the issue of her taking political postures she stated that she was not aware of having done so and would like particulars detailing this so that she may fully respond. She agreed that the Public Protector needs to synergise with the other Chapter Nine institutions. Replying to the Chairperson's question regarding conflicts between the Chapter Nine institutions, she said that there were no clashes and if there were mandate contestations, especially regarding the Public Protector which is a distinct institution. This was said in the Kadar Asmal Report, where the Public Protector was differentiated from the human rights focused organisations. However, where conflicts do arise is with statutory bodies such as the Special Investigations Unit, however even here there is communication between herself and the head of the SIU Adv. Soni. She conceded that the right forum for the synergising the Chapter Nine would be the FISD and currently the Public Protector regulates relations through Memoranda of understanding as signed with all the Chapter Nine institutions and the auditor general. She then said that there will always be a mandatory overlap with other bodies engaged in administrative review, because of the breadth of the Public Protector's general mandate, which has been interpreted to cover all administrative improprieties.
Ms Madonsela replying to Ms Pilane-Majake's question on what the Public Protector is asking government to pay, here she said that it mostly is the investigations into systemic maladministration, such as that into the ones into the Master's office and RDP housing because these will have the broadest impact. Turning to the prioritisation of cases, she said that the Public Protector has an intake assessment and customer service unit in each province, which sends complaints along various tracks; however she would still deal with the early resolution cases, because they are important. Replying to Mr Mpumlwana's point about preference being given to limelight cases she said that these are a drop in the ocean considering that the Public Protector processed and finalised approximately 20 000 cases, with roughly 40 received written reports and two or three high profile ones make it into the media. Regarding Ms Pilane-Majake question about the staff members who are not investigators she said that the remaining staff is not only senior management, but chiefs of investigation, heads of provincial units and senior registrars. Also that the organisational structure was approved by DPSA, because it is more streamlined and less administratively heavy.
The Chairperson then indicated that the rest of the questions should be comprehensively answered in writing. He asked her in closing, having heard that the Public Protector did not have a good relationship with the previous Committee, what it could do to assist the work of the Public Protector.
Ms Madonsela replied that she could not say that Committee members need to do specific things. Rather she comes to the Committee grateful that there can be a fresh start and to offer the Committee the Public Protector's partnership in the fight against maladministration. Regarding the budget she requested that the Committee approve its budgetary requests and asks the Committee to support the organisational structure as approved, because this constitutes the bottom line of the human resources required for proper case management, fulfilment of mandates and information management. Lastly, she asked for the Chairperson to attend the stakeholder engagements, because of the success the Public Protector experienced with the provinces.
The meeting was declared adjourned.
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- Summary of Strategic Plan (2014-2017) and Annual Performance Plan (2014/15)
- Public Protector's presentation to the Portfolio Committee on Justice and Correctional Services