Office of the Public Protector
The new Public Protector was present for the Office of the Public Protector (OPP) Annual Report briefing. The OPP witnessed a surplus of R17 million, an improvement on last year’s surplus. Total expenditure was R237 million out of the budget of R246 million. The key challenge in the audit report is mainly material misstatements in the financial statement, which robbed the OPP of a clean audit.
Members welcomed the appointment of the Public Protector, noting the important position which she and her office occupy in South Africa’s democratic system. A DA member asked her to clarify the status of the ‘State Capture' Report, and what steps she has taken to preserve the Report. Some members condemned the OPP’s downplay of its irregular expenditure of R5.5 million, as well as its backlog of cases. A member suggested special cost orders against officials that bring frivolous court applications and decried the decrease in the number of cases coming to the OPP. Conscious of the sub judice rule, members discussed the reasons why the State Capture Report is being withheld and the allegedly acrimonious relationship between the previous Public Protector and the Committee. They expressed unreserved willingness to support the new Public Protector and indicated willingness to approach the Appropriation Committee to authorise additional funding for the OPP. Some members expressed concern on non-implementation of remedial action, the OPP’s failure to achieve clean audit as a result of material misstatements in its financial statements, people’s access to the OPP especially in rural areas, shortfall in its staff strength, outsourced investigations, the gap between ordinary and elite cases, use of consultants, poor infrastructure in the OPP, and low staff morale. Members condemned the $550 000 which the OPP received from international donors, expressing serious concerns over its effect on South Africa’s sovereignty. They also condemned the fact that the OPP spent R7 million on consultants, and again noted the irregular expenditure of R5.5 million.
Responding, the Public Protector promised to avoid using consultants. She also promised to shun foreign donations and not incur irregular expenditure. Accordingly, she requested that the Committee support her request for additional funding in order to tackle the OPP’s human resource and financial constraints. She promised to address concerns raised in page six of the Annual Report. She disclosed that she is preparing a response affidavit on the ‘State Capture’ Report and insisted that the Report cannot be released until the court case is finalised. She admitted that the Report is in a safe place. Responding to allegations that she is a spy, she requested the Democratic Alliance to withdraw its accusations, disclosing that she is seeking legal advice on the accusation. She explained that she only started working for the State Security Agency in July 2016, promising to ensure that OPP staff dealing with sensitive information have security clearance from the SSA. She promised to avoid giving sensational headings to her reports and disclosed various cost cutting measures. The Deputy Public Protector and other officials explained the decrease in the number of cases, how the R5.5 million irregular expenditure was incurred, the R7 million spent on consultants, and the rationale for the OPP’s request for additional financial support.
Legal Aid South Africa
Judge President Mlambo explained that Legal Aid SA has provided assistance to over 750 000 South Africans, achieved 15 years of unqualified audit, and been consistently accredited as a top employer for the past eight years. Its R1.5 billion budget has been used in a prudent manner. Legal advice and assistance was provided in 749 619 matters, 441 056 of which were new legal matters and 308 563 were advice matters. In the year under review, Legal Aid SA took on 15 new Impact Litigation matters and achieved a 93% success rate for the 14 matters that were finalised. Operational challenges include limited relief capacity, high numbers of pending matters, small percentage of practitioners who fail to meet quality standard, low general advice matters, low recruitment of staff, low economic growth, impact of efficiency measures introduced by National Treasury, and delay in the procurement of a new electronic legal aid administration system.
Members expressed concern over the effect that budget cuts could have on Legal Aid SA’s ability to provide legal aid. They agreed that its performance merits additional funding. However, they raised the issue of equal access to justice, effect of the failure to realise certain constitutional promises on crime, the threat posed to constitutional democracy by land claims, the huge number of backlog cases, cancellation of the electronic legal aid administration tender, perceptions that legal aid practitioners do not strictly adhere to legal ethics, and the criteria for deciding on impact litigation.
Responding, Legal Aid SA explained that its Quality Assurance Unit monitors the performance of practitioners and distrust of legal aid lawyers no longer holds true. It assured the Committee that it is tackling longstanding cases. It explained the cancellation of the electronic legal aid administration tender and its criteria for impact litigation.
South African Human Rights Commission
The SAHRC disclosed that it has maintained a third year of unqualified audits. Its notable performance in the reporting year include ADR mechanisms, increased visibility in rural areas, increased realisation of human rights, promotion of compliance with international and regional obligations, enhancement of understandings of human rights, and projection of a broader constitutional and legislative mandate. It reported total expenditure of R152.738 million, while the total projected cost is R41,112,376. Its notable challenges include outreach in rural areas and restricted access to its reports.
Responding, Members commended the Commission as the ‘custodian of equality’ in South Africa. However, some members accused it of Eurocentrism. They expressed concern on the Commission’s approach to racism, investigation of parental chastisement and freedom of religion, provincial outreach programmes, multiplicity of bodies working on legal aid and human rights awareness, the threat posed by land claims, increase in operational deficit from R900,000 to R1.2 million, understaffing, and provision of sanitary pads to high school students. Other areas of concern include the Commission’s approach to state accountability, restricted national profile, insufficient transformation, duplication of other Chapter Nine institution duties, and lack of activism in socio-economic rights, especially in student protests.
The delegation noted the Committee’s concerns and welcomed its advice on collaboration with similar institutions, introspection and revision of the Commission’s strategic plan.
Office of the Public Protector on its 2015/16 Annual Report
The Public Protector, Adv Busisiwe Mkhwebane, Adv Kevin Malunga, Deputy Public Protector, Adv Louisa Zondo, the Chief Executive Officer, and the Chief Financial Officer, Mr Kennedy Kaposa, presented the 2015/16 Annual Report of the Office of the Public Protector (OPP).
The Chief Financial Officer announced a surplus of R17 million, which is an improvement on last year’s surplus. The bank balance is R38.9 million, which is an improvement on last year’s five million. However, liabilities exceeded current assets by R9.6 million. Total expenditure was R237 million out of the budget of R246 million, of which R192 million was spent on compensation of employees.
The Chief Financial Officer also explained the challenges arising from the Auditor General’s report. He disclosed that material misstatements in the financial statement prevented the OPP from getting a clean audit. He stated that the OPP received an unqualified audit opinion. The major highlight is that, unlike last year, current liabilities did not exceed current assets. There was no non-compliance with legislation noted in the audit report.
The Chairperson thanked the OPP delegation. He stressed that the OPP has an important role to play in the democratic setup, adding that it shares an identical interest and mandate with Parliament’s oversight functions. He commended the OPP’s Alternative Dispute Resolution mechanisms. He particularly commended its partnership with traditional and community leaders. He promised the Committee’s cooperation, especially in the issue of increased funding. He called on members to respond to the presentation.
Mr W Horn (DA) aligned himself with the Chairperson’s remarks on the importance of the OPP in the unique features of South Africa’s constitutional democracy. He welcomed the appointment of the Public Protector, remarking that she embodies the role of the biblical David against the Goliath of maladministration and corruption. He asked the Public Protector to clarify the status of the ‘state capture’ case, in which the DA is the complainant. In terms of section 8(3) of the Public Protector’s Act, the Public Protector is obliged to provide a complainant with a final copy of its report upon completion of an investigation. Accordingly, the Public Protector should indicate when the DA will be provided with the ‘state capture’ report (Report). As a result of the preservation order made by the court, the Public Protector communicated with Parliament, as it deemed Parliament the appropriate place where the Report should be preserved. What are the contents of the Public Protector’s cover letter to Parliament regarding the Report and what are her views on Parliament’s decision to return the Report to her for preservation? What steps has she taken to preserve the Report in its current state until the court rules on its release to the public?
Regarding the presentation, Mr Horn condemned the OPP’s downplaying of its irregular expenditure of R5.5 million, which is unacceptable because it is a repeat of supply chain management finding. He sought clarity on the proposed MOU between the OPP and the Department of Justice, pointing out that the Magistrate Courts Act is a hindrance to individuals seeking to claim specific performance.
Mr Horn sought to know measures for handling cases older than two years. He commended the elimination of deficits in the OPP. However, he questioned the irregular expenditure as a repeat finding that needs to be eliminated.
Finally, Mr Horn sought clarity on the Public Protector’s sole enforcement of the Executive Members’ Ethics Act. He noted that eight cases based on the Act were investigated last year, whereas only four reports were issued. He asked whether there are outstanding reports.
The Chairperson put it on record that Adv Busisiwe Mkhwebane is the authentic Public Protector, despite the pending court case. He noted that she assumed office on Saturday 15 October 2016. Mr Horn agreed.
The Chairperson asked members to bear in mind the sub judice rule in asking the Public Protector questions.
Mr Horn replied that members should have opportunity to ask the Public Protector questions despite the sub judice rule. This is because the rule only applies to questions relating to the merits of the case.
The Chairperson agreed.
Mr S Swart (ACDP) congratulated the Public Protector on her appointment. He noted that there is a submission by Adv Thuli Madonsela, which, unfortunately, the Committee could not receive. Rather the Committee agreed to postpone the presentation of the Report last week Wednesday. He strongly condemned the fact that the Public Protector’s Annual Report was only received by members this morning.
Mr B Bongo (ANC) remarked that it is incorrect that the Committee was unwilling to receive Adv Madonsela’s report.
The Chairperson replied that this is a non-issue and an in-house matter because the Committee resolved to postpone the submission.
Mr Swart stated that the court should be the last resort on political disputes, while dialogue should be the preferred option. He asked the Chairperson to pass on this information to the President. He suggested special cost orders against officials that bring frivolous court applications, including President Zuma, for wasting state resources. He cited the SABC review case as an example of frivolous court cases. He sought an update on pending investigations in the OPP. He remarked that the Justice Department is the third highest offender in the issue of complaints.
Mr Swart asked why there is a decrease in the number of cases coming to the OPP. In 2013/14, there were 26000; in 2014/15, there were 15618 cases, in 2015/16, the level of cases further reduced to 11,372. These decreases are despite clear cases of corruption and wasteful governance. He expressed concern at case backlogs and welcomed the OPP’s proposed steps to address them.
On funded posts, Mr Swart noted the turmoil between the previous Public Protector and Committee, which was so hostile, contemptuous, and borderline rude that the Speaker of Parliament said she regretted the manner the Committee treated the Public Protector. He stated that the Committee has power to approach the Appropriations Committee to authorise additional funding for institutions fighting corruption such as the SIU and the OPP. He urged the Committee to approach the Appropriation Committee to increase the budget of the Public Protector in order for her to fulfil her David versus Goliath task of fighting corruption and maladministration.
Ms C Pilane-Majake (ANC) raised a point of order on the ground that Mr Swart had, after being challenged by the Committee in a previous meeting, had withdrawn his statement that the Speaker regretted the manner the Committee treated the former Public Protector. In the light of this withdrawal, she asked Mr Swart to retract his repeat of the statement or the matter would be followed up with the Office of the Speaker.
Mr Swart explained that the Speaker did not apologise; she merely regretted the manner the Committee treated the former Public Protector.
The Chairperson stated that the Committee must be cautious about the way it considers opinions from the media and outsiders regarding the manner in which it treats people or conducts its affairs.
Mr M Maila (ANC) welcomed the new Public Protector. He stated that his passion is accessibility to the OPP. He stated that the new Public Protector is on the right track to carrying the people along and being open. He expressed concern on non-implementation of remedial actions and asked the Public Protector to take action on this.
Mr Maila agreed with Mr Horn’s displeasure at the OPP’s failure to achieve clean audit. He asked the Public Protector to share lessons the OPP has learnt from benchmarking both locally and internationally.
Mr Maila advised the Public Protector to beware of political games.
The Chairperson agreed and promised that the Committee is not an arena for political games.
Mr S Mncwabe (NFP) expressed concern at the fact that the OPP receives funds from international donors. He stated that international donors are not friends of developing countries. He prefers Parliament to ensure that the OPP is well funded to prevent it from disclosing sensitive information to international donors in its bid to obtain funding.
Mr Mncwabe stressed the importance of access to the OPP, including in rural areas.
Mr N Mathias (EFF) welcomed the new Public Protector. He agreed with Mr Mncwabe that poor funding for the OPP could result in the mortgaging of South Africa’s sovereignty to foreign donors. He stated that any attempt to hide the reason why the previous Public Protector was denied her right to present her report would be mischievous.
Mr L Mpumlwana (ANC) raised a point of order that the issue of the previous Public Protector’s report is moot.
The Chairperson intervened to restore order.
Mr F Shivambu (EFF) accused the Chairperson of constant interference in members’ right to speak.
Mr Mathias urged members not to discourage the new Public Protector the way the previous Public Protector was discouraged. He stated that one of the lessons learnt from the Committee’s dealings with the previous Public Protector is the Supreme Court of Appeal’s finding on remedial actions. He stated that the Committee should not second guess the Public Protector’s reports. Second, it should not investigate the Public Protector. He asked the OPP for its contingency plans for review of the Public Protector’s powers - for example an interdict against the Public Protector’s presentation of her report. He noted that the OPP has become a true place of refuge for the people. He expressed the hope that the standard set by the previous Public Protector will be maintained or elevated by the new Public Protector.
On the material misstatements finding in the audit report, Mr Matthias urged expedited action to ensure that the OPP becomes a paragon of perfection that inspires public confidence. On the issue of human resources and under-funding, he expressed concern that there is a shortfall of 171 in the 500 staff strength of the OPP because only 329 posts are funded.
Mr Mpumlwana also welcomed the new Public Protector, praying that her tenure will be smoother than her predecessor. He expressed happiness at her plans to make her office accessible to rural areas. He advised the OPP to use mobile clinics and partnership with chiefs to achieve its outreach to rural areas. He sought clarity on her plan to use nine languages. Finally, he advised her to reach out to disabled persons.
Mr Mpumlwana expressed concern at international donor funding of the OPP. He also expressed concern at the five million irregular expenditure.
Mr Mpumlwana sought clarity on outsourced investigations, seeking to know the meaning and rationale for outsourced investigations. He expressed his displeasure at these investigations.
Mr Shivambu congratulated the Public Protector. He expressed satisfaction that she inherited a healthy financial position. He stated that the challenges faced by the OPP are not at crisis level. He however expressed concern at her accessibility to the public. He requested a concrete accessibility plan on her next appearance at the Committee. This plan should include the MOU with the Department of Justice, usage of magistrate courts, employment of OPP staff members in these courts, justification for her budget proposals.
Mr Shivambu noted that the OPP is empowered by the Constitution, the Public Protector’s Act, and the Executive Members' Ethics Act. Accordingly, he deplored the false chasm between ordinary and elite cases, which the Public Protector seemed to have hinted at when she stated in her SABC interview that she would not focus on the big cases. He noted that issues that relate to public accountability, theft by politicians, and the OPP’s mandate are interlinked because corruption results in lack of public service delivery.
Mr Shivambu remarked that there is unanimity on the part of political parties that the ‘state capture’ report should be released. He stated that the ANC, following the EFF’s example, issued a statement calling for the release of the Report. The DA followed suit. Accordingly, the Report must be released. He promised that the Committee will deal fairly with the new Public Protector. Finally, he declared that the Committee, especially the Chairperson, badly mistreated and abused the previous Public Protector.
Mr Bongo congratulated the new Public Protector on her appointment. However, he qualified his congratulations with two issues. The first is a widespread allegation by some members of the Committee that she is a spy. The second is that Adv Malunga, during his interview for the Public Protector’s post, raised concerns about her being fit and proper for appointment. He asked the Public Protector to respond to these two issues.
Mr Bongo raised concerns about donor funding, asking the Public Protector to clarify the policy framework within which it operates. He remarked that the previous Public Protector did not properly hand over to the new Public Protector because she worked from 5 to 12 on the 14 October 2016.
Mr Bongo denied that some Committee members accused the previous Public Protector of being a CIA agent. What is important for the new Public Protector is to avoid invitation of such accusations by sensational heading of reports such as ‘State Capture.’ He stated that he has information that the Report was not prepared by the previous Public Protector. Rather, it was prepared by a consultant. He stated that the R5.5 million irregular expenditure could have formed part of the money paid to the consultant that prepared the report. He demanded to know whether the consultant was vetted. If the consultant is not vetted, it means that proper procedure was not followed for appointment.
Mr Bongo asked the Public Protector to address the Committee on how the car crashed by the child of the previous Public Protector would be paid for, given that the car is a public resource. He expressed concern over overlap (backlog) of cases, demanding to know their status. There are 4 251 of these cases and their status needs to be known. For example, a 2014 case is still pending while cases brought yesterday are given priority attention.
Finally, Mr Bongo remarked that one of the candidates for the Human Rights Commission, who is a lecturer in Durban, stated that she has worked as a consultant for the OPP for the past 12 months. This lecturer was probably responsible for drafting the Report. How is she paid?
Ms M Mothapo (ANC) welcomed the new Public Protector. She sought clarification on the OPP’s benchmarking from other countries, especially Namibia and Singapore. She welcomed the moratorium put on international trips by the OPP. She expressed concern at very poor infrastructure in the OPP, citing the example of the Limpopo office where she performs her parliamentary oversight functions. There are no ablution facilities and telephones there. She also expressed concern at low staff morale in the Limpopo office which results from excessive control from the Hillcrest head office in Pretoria. She complained that red tape hampers investigations and access to the OPP.
Ms Mothapo restated her concern with donor funding. She stated that foreign donations usually come with conditions, especially donations from the US Agency for International Development (USAID). She queried the CFO’s statement that a figure of R5.5 million irregular expenditures is not material, remarking that tax payers’ monies should be respected. She stated that SIU appeared before the Committee yesterday, and the Committee told it that, as an integrity institution, it ought to have clean audits. Clean audits should also be the aim of the OPP in order for it to practice what it preaches and lead by example.
Furthermore, Ms Mothapo stated that the underspending of R505 000 in outreach programmes is worrying. She expressed concern at the OPP’s IT system and resignations of top staff, arguing that these resignations indicate low staff morale. Why should there be 28 resignations in the OTP, which has reduced its staff strength to 294? She suggested a review of the Public Protector Act in line with the Constitutional Court judgment.
Ms Pilane-Majake welcomed the annual report of the OPP and congratulated the new Public Protector on her appointment. She also congratulated the previous Public Protector in absentia. She stated that freedom of speech is important, remarking, however, that, lately, this freedom is being abused. She urged caution in the manner the OPP handles freedom of speech, advising the new Public Protector to be wary of being manipulated under the guise of freedom of speech. She picked up on Mr Bongo’s comments on the three laws that regulate the OPP.
On the issue of consultants, Ms Pilane-Majake remarked that the OPP should be wary of using consultants, noting that at one point, the SIU was operating on consultancies. It is disturbing that the OPP spent R7 million on consultants. Overuse of consultants undermines the staff members of the hiring organisation and questions their capability. She advised the new Public Protector to run a skills audit on OPP staff. She advised her to avoid leasing buildings because of its horrific cost. She advised her to rather buy the OPP’s buildings.
On mobile clinics, Ms Pilane-Majake recalled the Committee’s earlier advice on the use of mobile clinics. The Committee had advised these clinics to be like a one stop service station and to collaborate with other Chapter Nine institutions in order to save costs. What was budgeted for in the case management system to justify the request for additional funds of R5 million? She asked the CFO to clarify additional funding vis-a-vis the total budget and case management system. She asked the Public Protector to supply international benchmarking reports to the Committee, given that benchmarking visits are expensive.
The Chairperson remarked that members are unanimous in welcoming the new Public Protector. He noted that the Public Protector’s guidance adviser is the Constitution and the law. He noted that the Committee has put her at a disadvantage with its numerous comments.
Responding, Adv Mkhwebane, stated that she would supplement her response with written responses, as well as give the CFO room to respond also. She declined to comment on the cover letter written by the former Public Protector because it is contained in the report and is sub judice. However, the letter is safe in an office safe. She also has not gone through the letter.
On utilisation of magistrates courts, the Public Protector promised that the OPP will not interfere in the use of these courts. The OTP will merely use the infrastructure of magistrate courts. The OPP has investigator assistants that can be engaged in the process of preparing a comprehensive report on utilisation of infrastructure. The OPP plans to use multi-purpose centres and traditional affairs’ offices to diversify its operations.
On cases older than two years, the Public Protector recalled that section 237 of the Constitution requires the OPP to diligently perform its functions. There are about 444 cases at Provincial level as at April 2016. The pending cases at head office are 653. She promised that the OPP will provide a breakdown of the stages of these cases up to April 2016. A report will be complied on these cases.
The Public Protector promised that the irregular expenditure of R5.5 million will definitely not be repeated. She acknowledged that utilisation of consultants was a big challenge. She put on record her doubt that the OPP can achieve a clean audit next financial year. This is because of her resumption date (15 October 2016), unfunded posts, and consultants that have been used (and presumably need to be paid). She promised however, that the OPP will do its best to achieve an unqualified audit for next year, noting delays in the payment of suppliers. She promised to provide a report on the eight cases dealing with the executive members’ ethics code.
On the issue of special cost orders for frivolous litigation, including against President Zuma and the SABC review, the Public Protector stated that the OPP has taken note of the suggestion and will engage it. She promised to address the issues raised in page six of the Annual Report, given that she did not receive the handover note from the previous Public Protector before she left.
The Public Protector welcomed the Committee’s offer to approach the Appropriations Committee for additional funding for the OPP. She sought additional funding, promising that “no consultant will be utilised in that Office; no donor funds will be requested in that office.” She disclosed that the OPP management know the way forward on these issues.
On accessibility, the Public Protector welcomed Mr Maila’s comments that an empowered citizenry is important because the people can act as their own liberators.
On remedial actions, the Public Protector promised to send a report indicating which departments are experiencing particular challenges. She acknowledged that the effectiveness of remedial actions has serious implications for pensioners’ ability to receive pensions.
The Public Protector acknowledged that the OPP should lead by example by striving for a clean audit.
The Public Protector apologised for not numbering the Annual Report appropriately. She restated that international donor funding will be a thing of the past, given that her stint in the State Security Agency has made her aware of the implications of international donor funding. She agreed that foreign donors pose a risk to South Africa’s sovereignty.
On the concerns raised in the Auditor General’s findings, the Public Protector promised to deal with them. On the shortfall in human resources, she disclosed that the OPP’s allocated staff strength is 520, of which only 326 is funded. She requested additional funding.
The Public Protector promised to re-examine languages to be covered by the OPP and empower rural communities. She disclosed that there is enough senior management to overcome the OPP’s challenges because these challenges are not at crisis level. A report will be submitted on these challenges.
The Public Protector explained that her response to the SABC that backlog of cases is her priority flowed from a direct question on what her priority is. She agreed that while high-profile cases are important, the OPP will not neglect any investigation. High profile cases have an effect on the triple challenges of poverty, unemployment, and inequality.
The Public Protector disclosed that she is preparing a response affidavit to the court on the ‘State Capture’ report to be filed on 21 October. The Report cannot be released until the court case is finalised. This is because the Report is sub judice. She is still consulting on it, and the court ruled that the Report should be kept safe. Accordingly, she cannot commit to a timeline when the Report will be released.
Regarding the spy allegations, the Public Protector requested the Democratic Alliance to clarify and withdraw its statement, which questioned her integrity by accusing her of being a spy. She is consulting on appropriate steps to take in order to dispel perceptions and have her dignity is restored. However, she is not using state resources to do so. She stated that she only started working for the State Security Agency (SSA) in July 2016. She had never worked for them before. I was deployed by Home Affairs. She explained that together with certain legislation, the SSA protects information that could jeopardise South Africa’s security. The SSA “is very critical because a state is not a government security agency. It’s a state security which includes government as an actor, people are actors, the sovereignty of the country, the laws of the country, and even the values of the country. So the people who are working there … are protecting the state.” Therefore, if they are labelled as spies, it affects her integrity and even [South Africa’s] diplomatic relations with China. All employees of the OPP need to have a security clearance, which demands the hiring of a senior security manager to advise on all security related issues.
The Public Protector stated that she was supposed to meet with the former Public Protector on Friday 14 October. However, the former Public Protector was busy preparing for the presentation of the so-called State Capture Report. She met with the Deputy Public Protector and the Chief Operating Officer, at which she indicated that their aim of meeting with the former Public Protector is to obtain a handover report from her, especially on key issues of the Report and the page six issues [in the Annual Report]. Unfortunately, they never met with the former Public Protector as planned. They met with her for only 20 minutes before her media briefing. They were supposed to meet on Monday; but she spent Monday on getting acquainted with her new environment and meeting with her staff. She has received the handover note yesterday, though she has not received a written report specifically from the former Public Protector.
The Public Protector acknowledged that some reports by her predecessor are named in a manner that makes it difficult to link them to their subjects. She promised to rectify this and avoid giving sensational headings to her own reports.
On benchmarking visits, the Public Protector stated that it is difficult to obtain information for making a report on these visits because of the manner they were structured. She promised to restructure to make it easy to provide reports in future.
The Public Protector acknowledged the use of consultants. She admitted that PWC was used as a consultant for the Report, as well as consultants from the university. She was unable to provide clarity on whether due process was followed, including proper vetting. She promised to provide a report on overlap of cases, parties involved, and the type of cases. She stated that the KZN lecturer-consultant apparently resigned on 14 October 2016. She had been on a six-month contract relating to quality assurance.
The Public Protector disclosed various cost cutting measures, notably a moratorium on international travel and use of business class flights, use of video conferencing, etc. She noted the concerns raised on poor infrastructure and promised to visit and examine these concerns. She also promised to look into the challenges raised by centralisation of management, especially in issues of procurement.
The Public Protector again agreed that the OPP should aim at clean audit. She appreciated Ms Pilane-Majake’s remarks on freedom of speech. She promised to examine the issue of skills transfer, stressing the need to recruit different, skilled senior investigators. She also promised to present a report on skills audit next time the OPP reports to the Committee.
The Public Protector tried to explain the irregular expenditure of R5.5 million, and the expenditure of R7 million on consultants, notably on the so-called State Capture Report. She promised to submit a detailed report, as well as provide reports on benchmarking visits, and justification for the additional budget request of R5 million.
The Deputy Public Protector, Adv Malunga, explained that low figures of cases are traceable to exhaustion of local remedies requirements by the OPP. On the state security issue, OPP staff sign a confidential agreement upon assumption of duty. However, no formal security vetting is undertaken. He stated that all 11 official languages are covered by the OPP. There are Braille brochures that people [with disabilities] can access at OPP reception desks.
The CFO agreed with members that a clean audit is a non-negotiable aim. On the R5.5 million irregular expenditure, the OPP is dealing with sins of the past, given that most of it was incurred from consultancies commissioned as far back as 2012. These sins come in two parts: the first part relates to invoices on appointments made in 2012. The OPP was supposed to follow a supply chain process. Instead, it followed a human resources process, leading the Auditor General to flag the invoices as irregular at that point in time. Later, some consultants who needed to be paid resurfaced. This first part constituted the majority of the irregular expenses. The second part of the sins relates to contract management and expenses on attorney fees. Because the OPP used a private firm of attorneys rather than state attorneys, and because the tender process was lengthy, it ended up paying more than originally budgeted. The OPP is currently seeking concession from National Treasury to clear this irregular expenditure of R5 500 000.
Regarding the R7 000 000 spent on consultants, most of these came from litigation costs, which are classified as consultancies. Also, the internal audits are outsourced and classified as consultancies. The rest of the expenses relate to IT costs on software such as SAP and Caseware. Regarding case management, the requested additional funding of R5 000 000 is a part investment into the system and will cater for licenses, platforms, etc.
The CEO explained the rationale for the OPP’s request for additional support. She disclosed that the OPP has requested for the bolstering of its legal services and for increased influence of the OPP. She stated that the OPP is coming from a background in which the use of consultancies was encouraged. Some of these consultancies were procured in a hurry.
The Chairperson stated that Parliament and the people of South Africa honour security personnel who defend South Africa in the same way that they honour the heroes of the liberation struggle. Accordingly, the Public Protector should not feel demeaned for the aspersions cast on her integrity, even if no apology is issued for disparaging her dignity.
Legal Aid South Africa on its 2015/16 Annual Report
Judge President Dunstan Mlambo, Legal Aid SA board chairperson, noted that he never said that judges are corrupt or take kickbacks. The newspaper that published that, has apologised. He clarified that he merely referred to corrupt tendencies and practices in the courts.
The Chairperson replied that the Committee did not form its views on the Judge President’s remarks based on media reports.
Legal Aid SA CEO, Ms Vidhu Vedalankar, disclosed that Legal Aid SA has reached out to over 750 000 South Africans. She confirmed Legal Aid SA’s 15 years of unqualified audit. She disclosed that it has been consistently accredited as a top employer for the past eight years. She stated that Legal Aid SA has used its R1.5 billion budgetary allocations in a prudent manner. Legal aid delivery was provided in 749 619 matters as follows:
- 441 056 new legal matters of which 12% were civil legal matters
- 308 563 advice matters
- 5 new Impact Litigation matters; 93% success rate achieved for the 14 finalised matters
- Assisted children in 17 701 matters (criminal & civil).
The CEO stated that Legal Aid SA is currently assisting 750 000 persons to access justice, with a focus on criminal cases as demanded by the Constitution. She presented a breakdown of Legal Aid SA’s performance in the 2015/16 financial year. She stated that 388,692 (88%) of new cases were criminal matters. The number of matters has decreased. The rates of increase and decrease in new cases seem to be influenced by the frequency of advertisements.
Ms Vedalankar disclosed that about 3-5% of their legal practitioners do not meet quality assurance and, accordingly, are afforded training in this regard.
The irregular expenditure of R3.2 million mainly arose from transactions with service providers without valid tax clearance certificates. Other causes include interest, penalties for late payment of licenses and municipal accounts.
She noted staff recruitment is 95.4%, with a staff turnover rate of 7.2%. The variance is largely because 15 senior attorneys accepted magistrate positions.
Ms Vedalankar explained that Legal Aid SA’s challenges are:
- Limited relief capacity
- High numbers of pending matters
- Small percentage of practitioners who fail to meet quality standard
- General advice matters are lower than the target of 8.5%
- Recruitment of civil staff is below target
- Low economic growth and impact of efficiency measures introduced by National Treasury
- Cancellation of the electronic legal aid administration tender, which delayed the procurement of a new electronic legal aid administration application.
The CFO, Ms Rebecca Hlabatau, presented the financial position of Legal Aid SA. There was a deficit of R42 million, even though total revenue exceeded total expenditure. Overall, there ws a surplus of R98 million.
A member of the delegation explained Legal Aid SA’s performance in various programmes [see document].
Judge Mlambo concluded the presentation by explaining operational challenges that arise from budget cuts by National Treasury. Although Legal Aid SA still makes a positive impact on South Africans, the budget cut environment has forced it to make an assessment on the impact of budget cuts on its activities. For the 2015/16, the total cut was R45 million. Legal Aid SA managed to plug R35 million from its recruitment budget. Along with the shortfall of R10 million, these plugs will lead to decreased efficiency because of a shortage of staff. Already Legal Aid SA will cut 32 posts in 2017 and estimates that 864 court days will not be covered as a result of budget cuts. He expressed fear that Legal Aid SA might reach a stage where people will not be able to obtain legal aid. As an institution supporting democracy, recruitment cuts in Legal Aid SA might affect its ability to fulfil the constitutional promise of free legal representation. He concluded that any support to prevent this situation will be welcomed.
The Chairperson commended Legal Aid SA for its performance. He stated that the organisation merits additional funding. However, he raised the issue of equal access to justice, given that legal aid seems to be focused on criminal matters. Also, legal aid appears to be indiscriminate – that is being afforded to both poor and rich alike. He cited the example of a leader of a political party requiring legal aid. He stated that the historical injustices in South African society give rise to high rates of crimes, creating more criminals who are protected or afforded legal aid. Accordingly, the issue of crime needs to be tackled from its roots – that is moral regeneration. He gave the example of the inefficiency of Land Claims Court, which frustrates people and encourage them to take the law into their hands. He suggested a workshop to address this situation and prevent a revolution. Left to him, he would allocate Legal Aid SA a huge budget in order to allow it to address the critical issue of land claimants.
Judge President Mlambo agreed with the Chairperson that certain constitutional promises which have not seen the light of day are leading to serious discontent. The land restitution organs are too slow in addressing people’s concerns. He cited the example of his 86-year old father who has been unsuccessfully accessing the Land Claims Court for years. It appears that lands claims organs have not been held to proper account.
The Chairperson added the example of an old chief [aged 104 years] in Venda who had a stroke as a result of land claim issues. An indaba on lands claims is necessary because these claim delays are a threat to democracy.
Mr Horn congratulated Legal Aid SA for its exemplary financial report. However, he expressed concern at the huge number of backlog cases. He asked about the cancellation of the electronic legal aid administration tender. He re-echoed Judge Mlambo’s concerns on budget cuts, wondering when these cuts could become a constitutional issue that would affect the quality of legal aid.
Mr Mathias welcomed the Legal Aid SA report. He requested the audit report to assess how it compares with the Legal Aid SA report. He remarked that the long list of crimes on which legal aid is provided includes people accused of witchcraft. He asked why legal aid is afforded to people who are accused of witchcraft, seeking to know the numbers of these people. He disclosed that he has a personal interest in this, given that his grandmother was trained in witchcraft.
Mr Mathias asked for clarity on the proportion of people afforded legal aid in comparison to acquittal rates. He noted an accusation that legal aid practitioners do not strictly adhere to legal ethics, as seemingly evident in low rates of acquittal. For example, many practitioners engage in plea bargaining with prosecutors over confessions. He asked what is being done about the high level of mistrust of legal aid practitioners.
Mr Mathias agreed that additional funding for Legal Aid SA will not be very helpful without addressing the root causes of crime. He cited Lucky Dube’s song that the state builds more prisons and less schools. On the land question, he expressed concern that land claims will pose a challenge for Legal Aid SA because of the frequency of these claims. He stated that the EFF leader has been accused of instigating land grabs, explaining that Malema has merely raised consciousness of the importance of the land issue in South Africa. He stated that for this, Malema has already been accorded martyrdom while still alive. The role of the Land Claims Court needs to be revisited by the Department of Rural Development. He expressed support for additional funding for Legal Aid SA in order to protect the rights of the poor and marginalised who must have their right to access to justice.
Mr Swart commended Legal Aid SA for its 15 years of unqualified audits. He expressed frustration that nothing comes from the Committee’s recommendations to increase the budget of Legal Aid SA and similar bodies. He suggested that Parliament exercise its powers to amend the budget to ensure that this situation is addressed. He expressed concern that the NPA, Legal Aid SA, and even judges’ efficiency will be affected by budget cuts. He commended Legal Aid SA for its R62 million savings, but expressed worry that it will not be sustainable if nothing is done about budget cuts. He urged Parliament to exercise its powers to increase the budget. He asked about the criteria for deciding on impact litigation.
Ms Pilane-Majake welcomed Legal Aid SA’s presentation and congratulated it on its clean audit. She too expressed concern at the non-fulfilment of several constitutional promises, noting that they cause discontent capable of leading to a revolution. South Africa has a serious budget funding challenge that affects not only Legal Aid SA. She singled out the position of women who are hampered from accessing legal aid, urging future Legal Aid SA reports to stress the situation of women.
Ms Mothapo joined her voice to the congratulations poured on Legal Aid SA for 15 years of clean audits and for being the top employer in South Africa for the seventh consecutive year. She noted that other entities come before the Committee with several worrying issues, which is not the case with Legal Aid SA. She stated that budget cuts will affect mostly indigent and black people who lack the means to afford legal representation. Accordingly, budget cuts amount to indirect discrimination, since indigent people will not be able to access a fair trial. She supported Mr Swart’s suggestion to approach the Appropriations Committee with the good story of Legal Aid SA’s performance. From the projections for 2017/18, it appears Legal Aid SA will cut staff strength, and this does not portend well for it going forward.
The Chairperson declared that the issues raised by members are so straightforward that Legal Aid SA need not reply. He disclosed that the Committee is planning meetings with relevant bodies and role players to address the concerns that have emerged from the presented Annual Report. He thanked Judge President Mlambo for always appearing in person before the Committee.
Judge President Mlambo thanked the Committee for its support. Responding to justice-related matters, he stated that having grown up in townships, he appreciates the hurdles faced by single mothers in getting maintenance. Funds seem to disappear unless a bribe is given to maintenance officers, who do not account to the judiciary for the way they handle maintenance funds. Many single mothers are bringing up their children single-handedly because the justice system is unable to help them. As head of the Gauteng division, he is doing his best to address this issue.
On backlogs, Judge Mlambo explained that Legal Aid SA is being proactive in disclosing information on these cases and mounting pressure on getting these backlogs cleared. Judicial officers in provinces are being pushed to clear backlogs. As a means of reducing backlogs, he discourages the appointment of magistrates who have more than ten part-heard matters.
Regarding witchcraft cases, no discrimination is made in the decisions to grant legal aid. However, Legal Aid SA does not currently have any case of people who accuse people of witchcraft.
On the perception that Legal Aid SA practitioners do not uphold legal ethics, Judge Mlambo sought to know the areas where these perceptions are held so they can be addressed. He stated that the Quality Assurance Unit monitors the performance of practitioners and he is surprised to hear of these perceptions. The distrust of legal aid lawyers used to be a concern that he believes has been addressed.
The Chairperson stated that it may not be fair for Legal Aid SA to address these perceptions of distrust, given the profit motive of most litigation. He stated that the absence of pecuniary motives should ensure that Legal Aid SA practitioners do not engage in plea bargain or other sharp practices. He thanked Judge President Mlambo for his responses.
A member of the Legal Aid SA delegation assured the Committee that Legal Aid SA has programmes in place to identify longstanding cases and deal with them. It also involves other stakeholders in these backlogs, which has led to a drop in the number of backlogs. Regarding the witchcraft remarks, he stated that these accusations are insignificant but are often linked to other charges such as murder or attempted murder. Legal Aid SA does not discriminate against the crimes which persons are accused of. Thus, it is unfair to judge it on the number of its acquittals. It should rather be judged on the quality of its legal representation. Legal Aid SA receives feedback from magistrates on how its practitioners are performing. He expressed doubt that distrust of Legal Aid SA practitioners is still as high as it was years ago.
On the cancellation of the electronic legal aid administration tender, it was noted that a new contract has been issued and is due to take effect from April 2017.
A Legal Aid SA delegate stated that unethical practices by Legal Aid SA practitioners are taken seriously. On impact litigation, Legal Aid SA has a committee that considers the financial implications, merits, impact, and quality of such cases. For example, there was a case involving two persons too mentally ill to stand trial.
On perceptions of Legal Aid SA practitioners, the Chairperson noted that the Law Society and Parliament exercise oversight over legal practitioners and should follow up on distrust of Legal Aid SA practitioners.
South African Human Rights Commission on its 2015/16 Annual Report
Commissioner Ahmed Ameermia introduced the delegation. He promised members a USB gift of the 20-year celebration of the Commission. He declared that the Commission obtained a landmark victory in the Stellenbosch case where it acted as an amicus curia in the Constitutional Court. He remarked that he had thought they were representing 150 000 farm workers. However, in terms of the Constitutional Court judgment, he was shocked when Judge Jafta, in paragraph six of the judgment, exposed the magnitude of the problems caused by micro lenders in South African society. The judgment disclosed that the micro lending industry grew from R41 billion in 2008 to R159 billion in 2013 and R168 billion at the time the Stellenbosch judgment was given. These are the sums stolen from poor people. The Commission report gives an overview of the 2016 performance, the financial statements, the current position at 30 September 2016 and points the way forward. He urged Parliament to finalise the appointment of the new SAHRC commissioners. He called on the Acting Chief Executive Officer to present the report.
Mr Peter Makaneta, Acting Chief Executive Officer, stated that SAHRC has maintained a third year of unqualified audits. He noted its 20-year commemoration, outlining the highlights of its performance in the reporting year. These include the ADR mechanism, increased visibility in rural areas, increased realisation of human rights, promotion of compliance with international and regional obligations, enhancement of understanding of human rights, and projection of a broader constitutional and legislative mandate.
The Acting Chief Financial Officer presented the financial statements. The SAHRC achieved a clean audit for the third consecutive year. 64.4% (R98.4 million) of the expenditure was allocated to personnel costs; 23% (R35.1 million) on corporate support costs; 87.4 (R133.5 million) was allocated to personnel and CSD related costs, and 12.6% (R19.2 million) was allocated to core operational units. The total expenditure is R152.738 million. The figures for the 2016/17 budget were outlined.
An SAHRC member explained how the Commission monitors compliance with its recommendations. The Commission is at 69% (4 600 complaints) in its finalisation of complaints. She gave a breakdown of the nature of complaints, of which racial equality is the highest at 67%. She disclosed that there is a spike in hate speech matters. Of 54 litigated matters, 34 relate to equality. Hate speech is the second highest. Addressing hate speech is a core element of the Commission’s constitutional mandate. She noted the large number of litigation cases involving South African Social Security Agency (SASSA) and pensions, noting the importance of these cases for access to justice by marginalised groups. The Indigenous Person’s Report and two other reports are being prepared for submission to Parliament. The SAHRC has reported on the Lindela Repatriation Centre to the Minister and informed the Department of Home Affairs. Some of the concerns in the report are allegations of physical abuse, solitary confinement, and forcing menstruating women to provide proof before they are issued with sanitary pads. The SAHRC is limited in its ability to monitor compliance with human rights standards in detention centres throughout South Africa. The SAHRC is working through multiple channels to increase its outreach. It collaborates with other Chapter Nine institutions on outreach clinics. 29 of these clinics will be driven by the SAHRC. These clinics work on rights to sanitation, housing, children’s rights, etc. Complaints to outreach clinics are dealt with on the spot, though there are no direct figures on these outreaches. The SAHRC is also upping its community outreach through community radio. A number of these are very effective in KZN.
The challenges encountered by SAHRC include communication with rural areas and restricted access to SAHRC reports.
Mr Ameermia disclosed that he has cancelled all foreign travel until the vacancies in the SAHRC are finalised. A staff meeting held on 17 October 2016 tabulated the targets for the third quarter.
The Chairperson stated that he has not always agreed with the SAHRC on its efforts to combat racism. Racism is at the heart of South Africa’s problems. It has created the triple challenge of poverty, unemployment and inequality. He expressed disappointment that last year’s conference did not resolve to criminalise racism. Hate speech is different from racism. He accused the SAHRC of being Eurocentric, rather than Afrocentric, remarking that as a result of this, the SAHRC focuses on strategic impact litigation to raise its profile.
On provincial outreach programmes, the Chairperson stated that there is a multiplicity of bodies working on legal aid and human rights awareness. He declared that the greatest threat to South Africa is the delay over land claims, which perpetuate poverty, unemployment, and inequality, which threaten South Africa’s constitutional democracy.
Mr Horn thanked the SAHRC and congratulated it for achieving a clean audit. He pointed out that the IT governance framework is still lacking. He expressed concern at the increase in the operational deficit from R900,000 to R1.2 million. He urged the SAHRC to adopt measures to reduce this deficit.
Mr Horn asked the SAHRC why it has not conducted an operational survey. He asked about figures on the use of the Equality Court and the 20 cases pending in the magistrates’ courts. He asked the SAHRC to give feedback on usage of the Equality Court.
Mr Swart stated that the Committee owes the SAHRC an apology for putting it in a position in which it has only one full time commissioner. He asked the Committee to examine the degree to which the SAHRC’s reports are implemented, giving an example of the Xenophobia Report. On Eurocentrism, he expressed concern about the SAHRC’s approach to investigating parental chastisement and freedom of religion. He cautioned it to avoid losing legitimacy with traditional communities over its stance on parental chastisement. He expressed concern at the agenda behind complaints that rob the SAHRC of focussing on non-religious related matters.
Mr Swart expressed concern over the provision of sanitary pads to high school students. He queried the SAHRC’s non-investigation of student deaths in hostels and 37 disabled person’s deaths. He advised it to be sensitive in how it allocates monies for litigation, given that Parliament is watching.
The Chairperson noted that the SAHRC must be wise in approaching religious-related matters in order not to alienate local communities and thereby defeat its constitutional mandate.
Mr Mathias echoed the concern that the SAHRC is Eurocentric. He asked the SAHRC if it is in a state of paralysis because it is left with only one Commissioner, wondering why Adv Ameermia is the only remaining Commissioner, and if his appointment is different from the others.
Mrs Pilane-Majake explained that Commissioners are appointed for seven years and in a staggered manner. Adv Ameermia’s appointment is still running.
Mr Mathias asked about the legal implications of the vacuum in the SAHRC, given that the enabling Act provides that not less than five Commissioners should be appointed.
The Chairperson replied that the Act has been reviewed.
Mr Mathias remarked that the SAHRC is not doing well with respect to state accountability. He commented that the SAHRC’s national profile is not as good as its report makes it out to be. He also accused the report of hiding the SAHRC’s institutional paralysis. He blamed this on aloofness and indecisiveness. He denied that the SAHRC has a national outlook, citing several places where it has no offices, especially in the former Transkei. He expressed concern at the rate of turnover in the SAHRC, noting that it is not reflected in the report save for the references to the CFO and CEO. He blamed these losses on inefficiencies and poor leadership, giving examples of Commissioners who do not attend meetings. He asked the SAHRC what it is doing about this. He advised it to re-engineer itself, pay attention to its home base, and be less focussed on international engagements.
Ms Pilane-Majake welcomed the presentation, but stated that more work still needs to be done. She asked the SAHRC to sensitise the Committee on, as well as highlight some of its outcomes and impact activities. She accused it of not being sufficiently transformed and not being active enough in socio-economic rights, especially in the ongoing student protests.
Ms Pilane-Majake wondered whether some of the SAHRC’s programmes do not duplicate or infringe on the mandate of the Commission for Gender Equality. She advised the SAHRC to ensure that there are handover reports to the new Commissioners in order to avoid fresh beginnings that lead to waste of resources.
Ms Pilane-Majake asked about labour related complaints. She advised the SAHRC to approach xenophobia holistically by going beyond the perception that migrants are black people. She remarked that many migrants have settled in communities by marriage and long stays. She advised the SAHRC to employ strategic litigation in cases of xenophobia, poverty and inequality. She wondered if the SAHRC has ever litigated in a wealth re-distribution case. She advised it to also monitor the private sector. She gave the example of insurance companies that write off people’s cars after accidents. She advised the SAHRC to investigate abuse of human rights by businesses. She commended the SAHRC on its work so far, acknowledging that it requires more resources.
The Chairperson remarked that the Public Protector’s community outreach could offer lessons to the SAHRC to improve its outreach programmes. He echoed Ms Pilane-Majake’s remark that the SAHRC is the ‘custodian of equality’ in South Africa. He restated that non-resolution of land rights claims could lead to a revolution. He advised the SAHRC to re-strategize its programmes and mandate.
Adv Ameermia welcomed the Committee’s advice for introspection and revision of its strategic plan. He also welcomed the suggestion of a workshop between Chapter Nine institutions. The SAHRC has staff of 207 in the nine Provinces and the head office. This number is insufficient to reach 52 million people in South Africa. Accordingly, networking with other organisations working on human rights is useful in reaching rural areas. He acknowledged that poverty, inequality, and unemployment need to be addressed. On racism, he stated that hate speech should have been criminalised following the resolutions of the Anti-Racism Conference in Durban. He expressed the hope that new Commissioners will bring new energy to the SAHRC.
Adv Ameermia expressed concern at the non-provision of sanitary pads to high school students, acknowledging it as a human rights violation.
The Chairperson thanked the SAHRC for its presentation and commended Adv Ameermia for his longstanding work in the field of human rights.
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