Criminal Matters Amendment Bill [B20-2015]: COSATU submission; Public Protector & SA Human Rights Commission on their 2014/15 Annual Reports

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Justice and Correctional Services

16 October 2015
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

Cosatu presented its submission on the Criminal Matters Amendment Bill. Cosatu was whole heartedly behind the Bill, stressing that the theft of copper affected individuals and business, and it was necessary to counteract this strongly. It supported proposals that the bail conditions should be decided upon by judges and courts only. It was supportive of the more onerous sentences proposed, saying that this was a necessary consequence. It applauded the targeting of syndicates, scrap dealers and export agents and suggested that S A Revenue Services and other government agencies needed to be capacitated to inspect and account for export containers, to ensure that illegally obtained copper was not exported. It also suggested the introduction of an export levy on copper, since it had been informed that R70 million of copper was exported in one year from Cape Town. Members asked for comment whether Cosatu believed that the harsher sentences would have a deterrent effect or would worsen the overcrowding in correctional centres. Members and the Department of Justice explained that Cosatu's proposals on extension of the Bill could not be dealt with currently but they would be referred to a committee dealing with issues of metal theft. Members noted that criminal syndicates were involved who also used children in the commission of this crime. It was strongly suggested that awareness should be increased through educational programmes and outreach. The point was made that other institutions affected included hospitals and schools.

The Office of the Public Protector (PP) presented its Annual Report, noting that its aim was to be accessible to all people, and specifying that the largest chunk of complaints received related to undue delays and maladministration, unlawful enrichment and improper conduct, with 31% of the complaints raised against municipalities. Complaints against the Departments of Home Affairs, Justice and Correctional Services were substantial but there were surprisingly few in the housing and human settlements areas. The PP had brought into service 1 795 mobile clinics to bring the organisation to the people. The PP had concluded 20 231 cases out of the 26 070 lodged in this year. It had referred 2 740 cases to other state organs. There were funding risks in the PP, in line with establishing a new call centre and a case management system. Possible solutions were proposed – namely to look at donor funding, to request National Treasury for assistance, request support from the Portfolio Committee, implement cost reduction measures or delay some projects. Some of the critical posts had not been filled, and that was something that needed also to be addressed, although again that was linked to shortage of funding. The PP had been running with an accumulated deficit for many years but hoped that this would be reduced to nil shortly. It was close to getting a completely clean audit and this was a prime target. The cash flow position was positive and the PP was solvent. It had implemented strict controls to ensure payment of invoices for services was now made within 30 days.  Although the Chairperson asked that the Nkandla matter should not be discussed, another Member from the ACDP commented that he had been surprised that, as the “elephant in the room” there had been no reference to it in the report. The Chairperson was insistent that issues raised by the Auditor General would need to be resolved before the Committee would be happy to recommend further funding. Members expressed their concern whether mandates of the various bodies were not overlapping and whether work was being duplicated. Members asked that the PP must attend to the gaps in compliance, IT and reliability of information, a report on the financial constraints that the organisation faced and for a report on its relationship with the Office of the Speaker. They asked if the responsibilities of the Deputy Public Protector had been defined, if there was a committee for risk management, and whether the Act needed to be amended.

The South African Human Rights Commission (SAHRC) highlighted that it had a dual focus on international and domestic matters. 92% of the performance targets for the SAHRC had been met in 2014/15 and it received an unqualified audit opinion was achieved. 90% of the cases were finalised, 200 engagements held with stakeholders and experts to enhance human rights and much research had been conducted. The effectiveness and efficiency of the SAHRC to support delivery on the mandate was assessed at 70%. It was conscious of the need to reach out better to communities and had developed a country guide and a disability toolkit. A social and economic rights report had been developed. National hearings were organised  on transformation, service delivery, emergency services and safety and security. The SAHRC had participated in high court litigation. It had completed an Annual Complaints and Trends Analysis Report. 59% of complaints were equality issues, and 13% related to disability, with the majority of complaints from Gauteng and Western Cape provinces. Its Equality Report would be provided to the Committee. It had not managed to achieve on study tours, capacity constraints, and some policy. IT governance was being addressed and there was a risk committee. Some future plans were presented, which included a legal intake centre, investigating xenophobia, increasing rural community outreach, building of technical capacity for Monitoring and Evaluation (M&E), capacity for monitoring state compliance,IT infrastructure, staff capacity and strategic impact litigation but more funding would be needed. It was still having difficulty paying invoices in 30 days.

Members enquired whether SAHRC perceived a culture of entitlement, asked about the proportionate funding to the offices, and commented about gaps and duplications of mandate between offices, as well as troublesome relationships with state departments and the Office of the Speaker. Members asked when the SAHRC was planning on starting and finishing the new projects, wanted to hear more on the Lindela Repatriation Centre and its part in the Marikana investigations, suggested that it must look into funding for formerly black universities, and what it could do to bring pressure to bear on the National Credit Regulator. Members asked about reports to the UN that had been delayed, and called for updates. Members were worried that the low numbers of complaints from rural areas was perhaps linked to insufficient advocacy and support from SAHRC because it was known that there were abuses of both farm labour and women. 

Meeting report

Criminal Matters Amendment Bill: Cosatu submission
Mr Matthew Parks, Parliamentary Officer for Cosatu, stated that the Criminal Matters Amendment Bill was a badly needed Bill. Cosatu had found that parastatals were under huge pressure but they were struggling with cable theft and vandalism. Workers would lose wages due to delayed transport as they were often paid per hour. This issue of theft and vandalism also affected business. It was estimated that theft cost South Africa  up to R7 billion per annum. Cosatu supported the provision in the Bill that bail applications could not be dealt with by police officers or prosecutors, but rather by judges in court. Cosatu supported also the harsh sentences, as it believed that this issue needed to be dealt with severely. It applauded the targeting of syndicates, scrap dealers and export agents. SARS and other government agencies needed to be capacitated to inspect and account for export containers, to ensure that illegally obtained copper was not exported. There needed to be an export levy on copper. R70 million of copper was exported in one year from Cape Town. Cosatu hoped that the Members supported this Bill and would see fit to add the suggested export clause.


Ms G Breytenbach (DA) asked whether Cosatu had considered that the bail clause in the Bill would add to the already over-burdened conditions in correctional centres, and on the justice system. She furthermore pointed out that harsh sentences often did not deter people from stealing, by reason of their poverty, such as small petty theft. She wondered if that point had been thought through. She also asked where Cosatu had sourced the figure for the copper export from Cape Town.

Ms M Mathapo (ANC) commented on the inclusion of health security and education services, asking Cosatu to elaborate on the inclusion of these on the list of essential services and infrastructure. She then asked for Cosatu’s thoughts on capacitation within government in line with the comments in the submission.

Ms C Pilane-Majake (ANC) welcomed the submission, stating that copper theft was really handicapping the entire value chain in the country. There should be greater activism in education and awareness in the area of copper theft especially around drug abuse. State agencies needed to be brought in to deal with this copper theft, with R70 million exported from Cape Town. She welcomed Cosatu’s support of harsher sentences.

The Chairperson made a comment that perhaps it would be a good idea to bring back door to door awareness and community involvement, as indicated by Cosatu. The perception that SA was too soft on criminals had come through the interpretation of the Constitution. The Committee was persuaded by Cosatu and South African Local Government Association (SALGA) to broaden the Criminal Matters Amendment Bill, and he asked the Department of Justice and Constitutional Development (DOJ) to look into this. He stated that he was grateful for the input from Cosatu.

Mr W Horn (DA) stated that he understood that the issues brought up by Cosatu and SALGA were covered by a higher level committee, according to the DOJ. However, he felt that the DOJ was missing an opportunity to broaden this bill.

Mr Parks responded that Cosatu was aware that the correctional centres were overcrowded and the justice system was overburdened, but felt that this needed to be dealt with through increased resources. It should not prevent the bail clause. The syndicates often paid for bail for these thefts. Cosatu believed that the country  should rather try, even if it failed, than not trying at all in regard to stern enforcement of the Bill and bail. The scrap dealers needed to be targeted. Cosatu believed that dealing with small items would lead to the larger issues being dealt with. Cosatu would supply the Committee with the statistics that it had regarding copper theft. Township schools and hospitals were often targeted for copper theft, and seeing that these were vital institutions, they would need to be protected by the Bill. Cosatu welcomed the capacitation of the various departments in regard to this Bill.

In regard to sentences and reasons for theft, Mr Parks did acknowledge that there was a real drug problem that often fuelled theft, but he pointed out that children were also being used in the theft. He felt that Customs attention needed to be tightened up to address this issue. The more education that could be put in place to  empower people, the better would be the response to this theft problem. A programme on copper theft should be looked at, to promote awareness. The City of Cape Town had a copper unit that investigated copper theft, and he thought that this could probably be replicated elsewhere.

Ms Ina Botha, State Law Adviser, Department of Justice, illustrated that the Gautrain cables were being stolen, leading to a negative impact on the economy. The power stations were also impacted and this affected business. Transnet had been targeted, and goods and services were disrupted. She asked how this negative impact could be reduced. The Bill looked at the service providers, and not the recipients. The DOJ was aware of the fact that the bail applications should be taken to courts. A police officer could only deal with bail if it was below R2 500, for minor theft. In relation to sentencing, she said that the DOJ was looking at the impact on society, and the larger the impact, the greater the sentencing. There was a Second Hand Goods Act, which was making sure that dealers were properly regulated. There was also a Bill looking at critical infrastructure, but government needed also to look at general infrastructure such as schools. There should be a proper sentencing framework in place. In relation to exports, she pointed out that the Department of Trade and Industry had a restrictive pricing model to monitor illegal exports.

She pointed out that the recommendations made by Cosatu could not be added to the current Bill, but they will be brought to the attention of the committee that was sitting to deal with metal theft. There was relief in sight to tackle the issue of copper theft. This was phase 1, and there might be unintended consequences if the Bill was broadened at this stage.

Office of the Public Protector (PP): Annual Report 2014/15
Adv Kevin Malunga, Deputy Public Protector, apologised for the absence of the Public Protector, Adv Thuli Madonsela, and stated that she had had a pre-booked conference to attend, which clashed with this meeting, and she had been unable to cancel.

He noted that the Office of the Public Protector (PP) was looking largely to protect the disadvantaged people and how to restore their dignity. The PP was trying to be accessible to all peoples. The largest chunk of complaints were to do with undue delay and maladministration, unlawful enrichment and improper conduct.  31% of the complaints were raised against municipalities. The next highest complaint percentage was against the Department of Home Affairs (DHA), followed by Justice, then Correctional Services. It was surprising that complaints related to human settlements issues were quite far down the list, as housing was a contentious area. He noted that this data was a barometer on the state of the country.

The Public Protector was a partner in good governance. 1 795 Mobile clinics were brought into operation to bring the organisation to the people. The PP had concluded 20 231 cases against a workload of 26 070. The PP referred 2 740 cases to other state organs. It was busy reviewing management systems. There had been an implementation of remedial action to increase public belief, through strengthening stakeholder engagement processes and it was working hand in hand with Parliament. There were funding risks for the PP to do with establishing a new call centre and a case management system. The solution to the funding gap was to look at donor funding, through the National Treasury, to request parliament to intervene, to implement cost reductions and/or to delay projects.

He pointed out that there were also critical posts that had not been filled. The solution here was to request for further funding for HR, to utilise volunteers and interns, to look at increased referrals out or Ombuds, strengthening of internal complaints and handling mechanisms, or to put a temporary freeze on regional expansions. The priority was to ensure operational efficiency, alignment of processes and systems, ensure co-ordination and co-operation between the PP and other institutions.  The PP was playing its role in good governance, ensuring public accountability and redressing administrative wrongs.

Mr Kennedy Kaposa, Chief Financial Officer, Office of the Public Protector, stated that the PP had reduced audit findings significantly, and was very close to achieving a clean audit. The key finding from the Auditor General (AG) was given by way of an emphasis of matter. The deficit of R18 million was an accumulated deficit over a number of years, and there was actually a surplus for the current year. The PP had to recognize accrued liabilities such as leases, depreciation and leave provisions, which led to the accumulated deficit. However, he did stress that the cash position was very positive. The bank balance was R5 million. The PP was in a position to pay creditors and salaries. It no longer owed anything to the Department of Public Works – and in fact that department actually owed R400 000 to the PP.

The problem of documentation not being submitted timeously to Parliament had been fixed. The PP had implemented strict controls to make sure payment for services was now happening within 30 days. The calculation of leave provision and commitments and material misstatements had been dealt with.

He stated that the PP was hoping, in line with the way things were at present, to make a surplus for 2015/2016 which would wipe out the current deficit. The PP requested the Committee to help motivate for funding to cover the gap over the previous years and for future ventures.

He summarised that the programme budget was R218 million and expenditure was R213 million, which led to a R5 million surplus.

The Chairperson stated that the Nkandla matter needed to be left up to the Court, and no comment or rulings on that would be made at this point.

He commented that the PP Act needed to be examined in order to fine-tune the process. The red flags raised by the Auditor-General (AG) needed to be fixed before more money could be allocated. The overlapping mandate of the PP with other organisations was still a challenge as the country was essentially budgeting several times for the same thing. Parliament could not request more money until these challenges and red flags were addressed. He noted that the PP must always be conscious that people must come first and there must be a balance between high level cases and low level cases.

Mr Horn stated that there was a workable plan to turn around the finances of the PP which was very positive. There were still a few gaps in compliance, IT and the reliability of information raised by the AG, and he asked that the PP must address these.

Mr S Swart (ACDP) asked that the PP should give the Committee a financial report on the constraints facing the organisation, and where it was currently. He asked when the hopes of getting a completely clean audit were likely to come to fruition. He suggested that the PP should perhaps ask Legal Aid South Africa for assistance. He asked if there had been any assistance from the Office of the Speaker. He noted that the Nkandla Report was the “elephant in the room” and he thought that it would need to be touched on, at least to report on the latest developments. He suggested that the Committee should be working alongside the PP and assist it wherever possible as it was doing a lot of good work.

Ms Pilane-Majake stated the Committee was indeed looking forward to seeing a completely clean report from the PP. She suggested that it needed to work on resolving the matters of emphasis. The deficit was another point that needed to be looked at. The PP should not be spending money that it had not been allocated. It also needed to look at proper financial management. She asked if the responsibilities for the Deputy Public Protector had yet been defined.

Ms Breytenbach asked whether the PP had a plan to deal with contract issues raised by the AG. She asked that the PP must provide a detailed plan showing how the additional finances would be spent that were being requested.

Ms Mathapo asked if the PP had a committee to deal with risk management.

Mr  M Ndlozi (EFF) stated that the PP was clearly overburdened with cases, under staffed and underfunded, yet it appeared to be functioning well and performing well, given the budget. The PP needed to be given more money, or the situation of it facing these challenges would stay the same. He noted the comment that the recurring deficit was being dealt with. He felt that the main point was that the Committee had to find a way to provide the PP with more funding. Small cases needed to be looked at too. He was worried about loss of trust in the PP, and suggested that a statement of confidence about its good work must be published. He believed that South Africa needed “a revolution in the manner of building confidence”. He suggested that the PP should perhaps join the Constitutional Court case of the EFF, to deal with the remedial actions against government officials. Finally, he expressed the view that the PP had been set up for failure, and needed support.

Adv Malunga replied that the PP had engaged in self criticism and self introspection to clean things up. He had simply “got on with business” in relation to his own role, and was ignoring all the talk and hype. The PP had a strong interface with the Office of the Speaker. In relation to the leaking of reports, he noted that recently there had been less leakage to the media, due to changes being made in the structure of reports. The clean audit was critical, and he fully agreed that the PP needed to get its own house in order before it could accuse others. He thanked Mr Ndlozi for the compliments.

Dr Maria Du Toit, Chief Executive Officer, Public Protector, believed that there was a need to address the legislation for the PP. The Act had undergone four amendments already but it did not align well with other legislation. The PP was looked at in terms of being an entity. It was developing an investigative manual to address all these issues that had been raised. She noted that the Committee would be invited to visit the offices of the PP, and the PP did not want to duplicate activities and mandates of other bodies. It was well aware that all the money that it was using was state money. However, the fact that it was under-resourced was a key concern. The PP was looking at how best to fund the mandate of the PP. It had decided not to expand into more offices, due to the budgetary constraints. The PP was drafting a funding model which would be sent to the Committee.

She agreed that ICT was very important. The PP was currently using the Excel systems, and did need funding to make reporting and security more effective, via new IT systems. The under-resourced existing staff complement was a concern and she suggested that between R26 million and R28 million would be needed by way of additional funding, in order to fully correct the existing human resource structure. She noted that the PP would prepare a document for Parliament, giving a full breakdown of each person in the organisation and the salaries and responsibilities.

South Africa Human Rights Commission (SAHRC) Annual Report 2014/15
Ms Lindiwe Khumalo, Chief Executive Officer, South African Human Rights Commission, stated that the focus of the Commission (or SAHRC) was both domestic and international. 92% of the performance targets for the SAHRC had been met in 2014/15, this was an improvement from 87% in 2013/14. An unqualified audit opinion was achieved. 90% of the cases were finalised. There had been 200 engagements with stakeholders and experts to enhance human rights and much research had been conducted. The effectiveness and efficiency of the SAHRC to support delivery on the mandate was assessed at 70%.

The SAHRC was looking at reaching out better into the communities. A country guide had been developed and a disability tool kit had also been created. The social and economic rights report had been developed, the SAHRC would like to share this with the Committee. There had been national hearings organised by the SAHRC on transformation, service delivery, emergency services and safety and security. The SAHRC had participated in high court litigation. It had completed an Annual Complaints and Trends Analysis Report. Equality by race captured 59% of the complaints, and next was disability, at 13%. The majority of complaints were lodged in Gauteng and Western Cape provinces.

SAHRC had completed an Equality Report which would be provided to the Committee.

She highlighted those areas in which the SAHRC had not been able to achieve.  Areas of non-performance included study tours, strategic risks around capacity constraints and implementation of some policy. IT governance was being addressed, because the SAHRC now had an IT committee that was dealing with it. It had a risk committee to monitor governance and internal controls.

Forward funding for the SAHRC looked at a legal intake centre, investigating xenophobia, increasing rural community outreach, building of technical capacity for Monitoring and Evaluation (M&E), capacity for monitoring state compliance, IT infrastructure, staff capacity and strategic impact litigation to the value of R20.89 million for 2016/17.

Mr Peter Makaneta, Chief Financial Officer, SAHRC, noted that the settlement of supplier invoices within 30 days still presented an issue for the SAHRC. The SAHRC was looking at enhancing records management to deal with this. R144 million had been budgeted for SAHRC for the 2015/16 year, and R130 million was budgeted for the 2014/15 year. 64% of the budget was allocated to personnel costs, 28% was allocated to cover corporate support. Only 8% was allocated to core operational units.

Ms Pilane-Majake asked whether there was a culture of entitlement in South Africa. She asked whether the SAHRC could share the United Nation’s position regarding its role. She still felt that there were gaps and duplications of mandates amongst the organisations, which needed to be looked at. She asked if the North West office was funded at the same level as the other offices. She wondered if the offices should not perhaps be combined, to share resources.

Mr Swart stated that compliance with state departments and the Office of the Speaker was still troublesome. He asked whether the capacity constraints were impacting heavily on the SAHRC. In relation to the additional “forward funding” requested for the activities, he asked in what year the SAHRC would be working towards them, and when it was likely to complete these strategies.

Mr Ndlozi stated that the SAHRC should share more on the social issues, and he would have particularly liked to have heard its findings on the Lindela repatriation centre. He said that the SAHRC needed to look at the so-called former Bantustan universities, for it remained a problem that so many of these were under resourced, for example having only one library. He asked what the SAHRC had done around the Marikana massacre and asked for more detail on the court issues, commenting that the right to life was vital

Ms Breytenbach commented on page 16 of the slides, asking also for further detail on the Lindela Repatriation Centre. She wondered whether the SAHRC could bring any pressure to bear on the National Credit Regulator to speed up the issues mentioned in the report.

Mr Horn stated that IT could only be pushed forward if there was a budget for it and this was something that would have to be addressed urgently. He noted that the SAHRC was obliged to file a number of reports to the United Nations, and many of these were either not filed at all, or filed late. He asked that the Committee should be given an update on these.

Ms Mathapo stated that IT governance was an issue and she too wanted the SAHRC to address this issue in more detail.

Mr S Matiase (EFF) referred to slide 18, regarding complaints from provinces. The low numbers in the rural areas should be seen as a lack of activism from the SAHRC,and he felt that it was not vocal enough on the instances of the many farm labour evictions and women's abuse. This statistic was indicative of  low levels of outreach in rural areas.

Mr Mohamed Ameermia, Commissioner, SAHRC, replied that the SAHRC was already putting pressure on the National Credit Regulator regarding the Lindela Centre.

Adv Lawrence Mushwana, Chairperson, SAHRC, said that there were responsible structures in place in regard to Marikana. The SAHRC was not competing with the courts and police. The SAHRC was heavily involved in the Marikana Report.

Ms Janet Love, Commissioner, SAHRC, assured the Committee that the SAHRC would provide a written report on the Lindela Centre as well as all the other issues raised. The Commission would welcome assistance and support from Parliament.  The IT programmes were outdated and needed to be updated. Again, the Commission would provide an IT report and budget to the Committee.

Ms Lindiwe Mokate, Commissioner, SAHRC, stated that the SAHRC had identified the issues within the sparse provinces such as the Northern Cape, and it was looking into boosting this capacity.

The meeting was adjourned.


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