The Portfolio Committee on Arts and Culture convened to deliberate the White Paper and the Department’s funding model with the Department of Arts and Culture. The implementing agency, South Africa Heritage Resource Agency, presented findings of its Forensic Report as well.
The delegation from the South Africa Heritage Resource Agency presented the findings of their Forensic Report. The Department received a query from the Freedom Front Plus regarding the condition of the Anglo Boer War forts around Pretoria. Since the maintenance of graves of cultural significance were a responsibility of the SA Heritage Resource Agency in terms of the National Heritage Resources Act, 1999, a formal communication was forwarded to the Agency to investigate and attend to the concern. In 2011 and 2012, SA Heritage Resource Agency received a disclaimer and when the new Board was constituted they began to investigate specific areas inclusive of the maintenance of historic burial sites. UBAC (Pty) Ltd was appointed to conduct a forensic investigation into funds allocated to The Heritage Foundation for the period 2011 to 2013. After receiving the grievance regarding the burial conservation, the SA Heritage Resource Agency approached the Heritage Foundation to take care of the concern, for which the Heritage Foundation received payment from the SA Heritage Resource Agency. Funds totalling R 2 250 000.00 were transferred from SA Heritage Resource Agency to The Heritage Foundation for the restoration, conservation, and the management of identified burial and memorial sites in terms of a memorandum of understanding signed by the parties. A significant finding was that of the R2.25 million approximately 90% of the expenditure incurred was for operational needs and 10% was expenditure incurred for the actual restoration, maintenance and material. However, regarding financial misconduct the forensic report stated that there was no financial loss. Upon review of the forensic audit report by NUBAC, it could not be said the SA Heritage Resource Agency employees were guilty of negligence or misconduct. There may have been a degree of neglect that amounted to negligence ultimately, but gross negligence bordered on wilful intent and such could not be attributed under the circumstances.
Members of Parliament questioned, since the results of the forensic report notes that corrective action could not be taken against the former employees as they were no longer employed, what corrective measures would have been taken against them or charges evoked if they were yet in the employment of SA Heritage Resource Agency; why was there a singling out of the former CEO in her personal capacity; with reference to the Legal Opinion; Criminal Charges in terms of Section 86 of the PFMA; 2.22: “when one considers the forensic audit report carefully, it cannot be said that SAHRA employees listed therein were guilty of gross negligence or wilful intent.- ” who was responsible for this deduction – the Agency, or was it explicitly noted by the forensic report; what had SA Heritage Resource Agency devised upon the review of the findings; when had the Company Secretary come across a memorandum of understanding, as the one under review, and what was her role when its occurrences were discovered; the findings it cited that the former CEO was “authorised to conclude”; what was meant by this, as conclusion refers to the finishing of a transaction; since the Council was the Accounting Authority of the Agency, why was nothing noted about them in the forensic report; when the memorandum of understanding was entered into, was the Legal Unit present or had revised it before its conclusion; what exactly does the 90% expenditure incurred for operational expenses mean, and since the task was to rehabilitate both White and Black concentration camps, of which it was explicit that violation had taken place, because it was not done neither to the anticipated extent or inclusion, hence, should not consequence management for misconduct for failing to do the primary purpose be considered?
The delegation from the Department of Arts and Culture presented the revision of the White Paper of the Department. The Department aimed to improve the performance of the institutions and reduce duplication, because in some cases there were huge fragmentation and wastage of resources. Unprecedented focus was on creative writing to be integrated as an expressed human-right. The revised White Paper considered Policy implementation, monitoring and its evaluation, which had proven inadequate in the elapsed years. The Department was aware of the inefficiency and weaknesses of the Councils within the Arts and Culture Sector. The formulation of new councils shall have representation by the Department of Arts and Culture; Trade and Industry, viz. small business; Basic Education; Higher Education and Training, and Science and Technology. The former councils shall be reduced; as the National Heritage Council shall oversee museums, archives, public monuments, historic statues and heritage sites. Resources shall be more focused as well. The Department shall no longer be a funding body, but the National Heritage Council or Foundation shall assume the role. There shall not be the dispensation of large amounts of funding for projects, but coordination of the system for strategic positioning as a role-player in the economy shall occur instead. The name of Department of Arts and Culture shall change to the ‘Department of Arts, Culture and Heritage’. More entrepreneurial strategies need to be developed for optimal performance of the sector. Heritage had the potential for internal tourism, as well as for foreign tourism, which entailed that the funding model for such should change within the entities. The policy proposed that the sector should be included in Section 18 (a) of the Income Tax Act; since education, social welfare projects and the environment were already included for tax exemption besides art that was also necessary for a holistic living.
Members of Parliament questioned if it were pragmatic to have centralised councils across provinces, as geographically this may not seem viable; the capitalisation of cultural tourism had not taken root as it had potential for, yet why had the revised White Paper seemingly omitted it; what were the basic tenets regarding the entities, such that to what extent would the entities be reduced or grouped together so that the Department would have alleviation of burden; if the Department were to become solely the agency of monitoring as per the revised White Paper, how would the entities be called into account to the Department or Parliament going forward; to what extent did the provincial policies on arts and culture supersede the policies of the Department; was the Department the ultimate policy deviser of which the lower levels of government were to adapt policy contingent to; with the merging of the entities, how many council boards would there be, and could the Department justify what it had intended to do about social cohesion strategies, lest it were a pompous term without clarity?
The Chairperson welcomed the delegations from the Department of Arts and Culture (DAC) and the South African Heritage Resource Agency (SAHRA), inclusive of several Council Members to the last meeting for the term. Hereafter, the Portfolio Committee would be going on an oversight visit. The resolve by means of oversight was motivated by an outcome that would be beneficial for all South Africans. In 2014, the Committee decided to concentrate on the entities of the Department, because 80% of its budget was allocated for those annually. Upon scrutiny, it was discovered that DAC have had merely two officials employed for the purpose of monitoring expenditure transferred to the entities. Yet the entities received 80% of the budget allocation. Even more alarming was that the Department had 400+ officials working for and, thus monitoring, the remaining 20% of the budget allocation. The Committee deemed this as nonsensical. Hence, it was implored of the Department to strengthen the unit that had monitored funds-flow by the entities. The Portfolio Committee discovered that entities had not done that which was expected of them. There were instances that had Board Members in dissension with officials; incidences of employees with various agendas, all of which begs the question, why had the Department encompassed of employees within the entities with a mindset of an agenda that contravened the mandate of the DAC? The employees of the entities should mutually work together not for self-seeking purposes, but for the benefit of South Africans, whether this was regarding artists, museums or whatever industry of arts they had derived from. Due to the subjective nature of the sector, the Committee had considered the elimination of personal bias to gain a matter of contention. The entities of the Department were either not doing that which they existed for, and if they were fulfilling their purpose there were key areas that required improvement. Therefore, the entities were called into account and before each entity would present their report, it was expected of the Department to grant an overview of the situation at hand too.
The Chairperson asked the Portfolio Committee to review the agenda for the day.
Ms V Mogotsi (ANC) requested if the Cape Town Jazz Festival could be added onto the agenda, since this was the last meeting for the term.
Mr T Makondo (ANC) noted that it could be added under the section of ‘Announcements’.
The Chairperson confirmed that before adjourning announcements would be catered for, of which the Committee agreed too, resulting in an Adopted Agenda for Tuesday 14th March 2017.
South Africa Heritage Resource Agency
Mr Vusithemba Ndima, Acting Director- General, Department of Arts and Culture, noted that the overview was on Heritage Foundation Forensic report conducted by the South African Heritage Resources Agency. The Department received a query from the Freedom Front Plus regarding the condition of the Anglo Boer War forts around Pretoria. Since the maintenance of graves of cultural significance was a responsibility of the SAHRA in terms of the National Heritage Resources Act, 1999, a formal communication was forwarded to SAHRA to investigate and attend to the concern. In 2011 and 2012, SAHRA received a disclaimer and when the new Board was constituted they began to investigate specific areas inclusive of the maintenance of historic burial sites. UBAC (Pty) Ltd was appointed to conduct a forensic investigation into funds allocated to The Heritage Foundation for the period 2011 to 2013. After the SAHRA received the grievance regarding the burial conservation they approached the Heritage Foundation to take care of the concern, for which the Heritage Foundation received payment from SAHRA. Funds totalling R 2,250,000.00 were transferred from SAHRA to The Heritage Foundation for the restoration, conservation, and management of identified burial and memorial sites in terms of an MOU signed by the parties. UBAC (Pty) Ltd identified certain findings following its investigation, viz. the former CEO, Ms Van Damme, was authorised to conclude the MOU entered into between SAHRA and The Heritage Foundation. Secondly, the omission by SAHRA to ensure that the MOU included specific provisions with regard to budgets, duration, project specifics and addendums, disadvantaged SAHRA’s rights to dispute any of the expenditure incurred by The Heritage Foundation. The Heritage Foundation had latitude to act at their own discretion and had unconditional authority over the MOU. A third finding was that SAHRA accepted liability for the MOU entered into between the respective parties and considers this matter as finalised. A significant finding was that of the R2.25 million approximately 90% of the expenditure incurred was for operational needs and 10% was expenditure incurred for the actual restoration, maintenance and material. Another finding was that SAHRA had an obligation to provide continuous monitoring of the utilisation of funds by The Heritage Foundation and determine value for money. Therefore, given these findings no corrective action may be taken against Ms van Damme; Ms M Ramagogoshi and Mr T Phili as they were no longer in the employment of SAHRA. The implementation of any corrective action against Mr D Sibayi may be futile, as his former superiors would have to firstly be held accountable for any negligence in the performance of their duty during the course of the Project.
The Chairperson highlighted that this was one of the problems that the Committee kept noting- the lack of Consequence Management within DAC. The Committee was of the view that the Department should focus on implementing Consequence Management.
Ms Reyhana Gani, Acting Chairperson of the Council, SAHRA, rehearsed that there was a meeting on 25 October 2017 where the same forensic presentation currently available was made by SAHRA, after which certain document was requested by the Committee. Three key findings were requested viz. a legal opinion relating to the lack of consequence management and if action could be taken against the former employees involved; an Action Plan on the Forensic Report, and a profile on the Heritage Foundation. This information was provided to the Committee in December 2016, of which acknowledgement was received in response to it. Would the Committee prefer further presentation of 25 October or should engagement on the sent documentation be made?
The Chairperson confirmed that there was a meeting with SAHRA and further documentation was requested from it, which was received by the Secretary of the Committee. Thus, it was now necessary that the submitted documentation was presented, as this was the protocol of Parliament.
Ms Veliswa Baduza, Chief Executive Officer, SAHRA, said Mr Ndima correctly gave a background noting that the Heritage Foundation was commissioned to deal with the matter of preservation of the historic burial sites. The Forensic Report as a result of investigation produced three findings and recommendations. The first related to the Memorandum of Understanding (MoU) that was entered into between the SAHRA and the Heritage Foundation. The finding was that no irregularities were identified regarding the authority of SAHRA to have undergone the signing of the MoU. The CEO at the time was, indeed, the delegated Head to have entered into the MoU. Therefore, there was no remedial action that could be taken against it. The second critical finding, of which the Acting Director General had alluded, the MOU itself lacked substantive content in a number of areas, for instance the budget allocation and how much the execution of the project would cost. Also, it omitted an anticipated duration of the project and an expiration date. Thirdly, an addendum was missing; thus, there was no clear indication of which concentration camps would be rehabilitated. The MoU referenced White and Black concentration camps; this entailed a need for a list outlining the camps. No list was attached to the MoU, which evoked uncertainty regarding which camps the Heritage Foundation planned to worked on. In South Africa, there were 47 White concentration camps and 59 Black, as in formerly non-white, concentration camps. A memorial in the South African War Museum in Bloemfontein had informed this data. The memorial was opened by the Minister of Arts and Culture in 2015 and included a list of names of those who had fallen in the concentration camps during the war. Hence, work was being done with the funding given by DAC to honour the deceased during the South African War. UBAC recommended going forward that before entering into contracts with any service provider, the legal unit of SAHRA should be present and scrutinise the contract before the signing. Since the recommendation had been instituted across all of the MoU, as the legal unit would vet it before the final signing. The Company Secretary headed the Legal Unit.
Another concern was that SAHRA needed to accept the liability for the cited omissions in the MoU. No irregularities were found with regard to it. However, the previous Acting CEO cancelled the MoU itself in 2013. The next area of findings related to expenditure incurred. The list of concentration camps rehabilitated was a total of 32 camps out of the 106 camps in South Africa. These camps were rehabilitated with the R2.25 million that was transferred to the Heritage Foundation by SAHRA. However, the forensic findings showed no proper monitoring of the implementation of the services by the service provider, such that the entity could not monitor that 90% of the transferred R2.25 million was utilised on operational needs and 10% was incurred on the actual maintenance and material required to work on the concentration camps. Since the maintenance of heritage sites was mandatory for SAHRA there shall be further prospective need for service providers to execute maintenance, but NUBAC had recommended the assertion of qualified Project Managers to manage these communications. Although much of the information was omitted, review of clause 15 outlined the exact dispersion of the funds. It was clear that the Heritage Foundation was to submit audited financial statements; provide a Progress Report on a quarterly basis; convene with the Executive Authority of SAHRA, and Annual reports were to be devised. Clauses 13 and 14 specified who from SAHRA was assigned to work with the Heritage Foundation, as well as how often they should have met. The Service Level Agreement (SLA) itself attempted to outline how delivery on the projects would be monitored, but the manner of how expenditure would be monitored lacked proper management. Therefore, the recommendation to strengthen the skills of Project Management existed. SAHRA had thus begun to provide Project Management training to its officials.
The next area highlighted by the forensic investigation was that although both White and Black concentration camps were mentioned in the MoU there was no evidence that work was done on Black concentration camps. As earlier cited, the lack of addendum enlisting the camps may have contributed to it. However, on 14 January 2011, an email was sent to SAHRA of a list of the concentration camps that were to be rehabilitated first, but, admittedly, SAHRA had failed to verify if Black concentration camps were included in that list. In terms of page 53 of the forensic report, the project at the cost of R2.1 million noted in the email dated 14 January 2011, was done by the former manager Mr Phili, which implied that SAHRA was part of the discussion about which concentration camps had required work upon. Yet there proceeded to be failure to have ensured that the Black concentration camps were included, which means that SAHRA had failed to monitor if the project was aligned to its purpose of inclusivity. Therefore, NUBAC noted that no corrective action could be taken against those who were involved in the project at the time, due to the lack of ensuring that the project was adequately managed and delivered in accordance with what was intended. Hence, the Legal Opinion submitted by NUBAC addressed the queries of consequence management previously advised by the Portfolio Committee.
Ms Lungisa Malgas, Company Secretary and Head of the Legal Unit, SAHRA, said upon review of the queries warranted by the Committee and the forensic report submitted by NUBAC, the entity could not find any evidence of financial misconduct, financial loss or wilful intent by the former employees cited, whom were Ms van Damme; Ms M Ramagogoshi and Mr T Phili. However, Mr Phili who was the Project Manager, did not manage the project properly, and thus accountability could be expected of him. However, regarding financial misconduct the forensic report states that there was no financial loss. Another aspect considered were the options that SAHRA had against former employees. From the onset, SAHRA could possibly consider charges of financial misconduct in line with the provisions of the PFMA, viz. section 50-55, 83 and Treasury Regulation 33, if proven. SAHRA could also pursue criminal charges in terms of section 86 of the PFMA, but this too required proof. In light of what was cited, there was no proof to have proven fault. In terms of financial misconduct, SAHRA considered the provisions of PFMA; internal regulations and the Labour Relations Act, and deduced that there was no misconduct or wilful negligence. Also, within the provision of Section 83 of PFMA read with Regulations 33, but these would follow suit if intentional misconduct was evident, of which could not be proven. The Accounting authority, such as the Council, or Accounting Officer or Officials of SAHRA could possibly face financial misconduct charges if it can be proven that they intentionally or negligently failed to comply with the provisions of section 50, 51, 52, 53, 54 or 55 or if they allowed irregular and/ or fruitless and wasteful expenditure. In terms of section 83 (2) of the PFMA, the Authority who was at the helm at the time of the aforementioned transgression was collectively liable, which was applicable in the event of proof. Another option that SAHRA has was to lay criminal charges against the employees involved, whether current or former. The sanction of those offences would be a fine or imprisonment not exceeding five years if the person/s contravened the said provisions of the PFMA intentionally or were grossly negligent. Again, SAHRA noted that upon review of the forensic audit report by NUBAC, it could not be said the SAHRA employees were guilty of negligence or misconduct. There may have been a degree of neglect that amounted to negligence ultimately, but gross negligence bordered on wilful intent and such could not be attributed under the circumstances.
Mr J Mahlangu (ANC) questioned since the results of the forensic report notes that corrective action could not be taken against the former employees as they were no longer employed, what corrective measures would have been taken against them or charges evoked if they were yet in the employment of SAHRA? The core of the query by the Committee was that the documentation omitted information that could incriminate them. Secondly, the change of tune regarding the relationship with the Heritage Foundation raised questions, particularly since no explanation was warranted for the change. Why was there a singling out of Ms van Damme, the former CEO, in her personal capacity? It was unethical to note Ms van Damme single-handedly, since the execution was ultimately deemed as a decision made by SAHRA. Yet, positive decisions were noted as having been made by the agency. This thinking creates contradictions. It was hoped that the new Board would consider the matter and highlight the aspect that seems missing, but one could not place a finger on it at face- value.
Ms S Tsoleli (ANC) referred to the Legal Opinion, page 7; Criminal Charges in terms of Section 86 of the PFMA; 2.22: “when one considers the forensic audit report carefully, it cannot be said that SAHRA employees listed therein were guilty of gross negligence or wilful intent.” Who was responsible for this deduction- SAHRA or was it explicitly noted by the forensic report?
Mr Makondo commented that the report was lacking in certain areas. Governmental departments and its institutions would usually resort to legal advice from private law firms, but this report appears as though its deductions stemmed from in-house speculation. If so, that would be satisfactory and if these views were informed by an external body but had become the assigned view of the Agency, then it should be advocated as such. If not, and these were mere recitations of an external body then it lacks the substance of a stance taken by the agency- in other words, what had SAHRA devised upon the review of the findings? Secondly, the Board was supposed to advised on matters like these by the Company Secretary, yet no mention of them were made. When had the Company Secretary come across a MoU as the one under review, and what was her role when its occurrences were discovered? Across government in South Africa there was the error that when officials committed misconduct those assigned to call them into account would defer accountability until it was too late, such as just before leaving or after the official had left the employment. Even the DAC was faulted with deferred accountability.
The Chairperson questioned that the findings cite that the former CEO was “authorised to conclude”; what was meant by this, as conclusion refers to the finishing of a transaction? Also, since she was “authorised” where had her authority derived from and had this implied that her authority was selective? What exactly does the 90% expenditure incurred for operational expenses mean? To the DAC, what had this division of funds meant? Also, since the Council was the Accounting Authority of the Agency, why was nothing noted about them in the forensic report? When the MoU was entered into, was the Legal Unit present or had revised it before its conclusion? The task was to rehabilitate both White and Black concentration camps; of which it was explicit that violation had taken place, because it was not done either to the anticipated extent or inclusion. Hence, consequence management for misconduct for failing to do the primary purpose should be considered. However, even though these concerns were raised beforehand, it seems that there were more questions than answers.
Ms Guni replied that clearly there was underlining information such as the lack of control and the lack of monitoring and oversight, which entails that many lessons emanated from the project exercised that he knew Council could take and apply. In fact, the new Council had already put Action Plans in place, such as no MoU was signed without proper engagement with the Council and revised by the Legal Unit. There were many areas for development that the organisation had begun to implement change for. Prior there were two councils for the agency with two or three Chief Executive Officers that was a sense of complication. Secondly, the reason for the cancelling of the MoU could not be currently answered, but it could have stemmed from the lack of leadership or oversight. The new Council could review whether controls should have been tightened or not; if the complete cancelling thereof was a wise decision or a replacement Memorandum should have been issued with better oversight capacity. Thirdly, the singling out of the CEO, as opposed to presentation of an organisation would be taken as a learning lesson that going forward all matters pertaining to the agency would collectively be presented; whether it included the CEO, Accounting Authority or other organisational stream. The organisation does take responsibility for the lack of control and the lack of oversight, and had grown and developed since then, due to the forensic findings. The Legal Opinion was done in-house. The Council of SAHRA had accepted the view as the stance of the Agency. The current Company Secretary was not the one appointed in the position when SAHRA hired the services of the Heritage Foundation. The omission of the Board in the forensic findings was noted. The authorisation for Ms van Damme to have concluded the transaction derived from the Council at the time.
Mr Mahlangu asked the Council Members present if a future presentation could be made regarding the extent to which they deliver on their mandate across the country. For instance, currently discussion was about the neglect of Black concentration camps, but the reality was that many other graves pertaining to the Khoi-San and other aboriginals were excavated for the purposes of mining or other commercial pursuits. Recently in the media, a farmer excavated a burial site, because he had not wanted the family to visit it. SAHRA was supposed to have intervened in matters regarding these, thus where was SAHRA when these happenstances undermined historic perseveration?
Ms Mogotsi commented that the assumed procedure with the transfer of funds was that the Council and the Legal Unit of any institution would revise the contract entered into, in this instance the MoU. Where was this matter presented before it had gone to the broader Council for adoption?
Ms Baduza answered that the authority to enter into any agreement on behalf of the Council was granted to the CEO through a delegation, which was both devised and authorised by the Council. Therefore, on the basis of such the CEO had authentic authority to have entered into the MoU. Admittedly, it was unknown if particulars were omitted, because personally it was not believed that there was a hidden agenda or malicious intent upon review of the documentation. DAC had informed that the Office of the Auditor-General deduced a disclaimer audit report. The forensic report achieved was part of the process to reverse the disclaimer audit finding. However, upon review of the forensic report there was a sense that work was done with good intentions, but ultimately proper monitoring was lacking.
The Chairperson commented that the problem started with the MoU itself, because having garnered the intended results was not a matter to have risked, since in so doing there shall be an unwritten assumption that governmental officials would be exonerated if any signed MoU did not deliver as expected, simply because the intentions were good. SAHRA gives the impression that the officials cannot be held into account because the outcome yielded unintended consequences with the R2.2 million, but the measures upfront were not sufficiently cautious to have prohibited it and thus accountability was due.
Mr Ndima clarified that the 90% expenditure incurred for operational needs had indicated that the execution was faulty. Ideally, the 90% of the budget was meant for the purposes of conservation, restoration and management. Thus, it would have been appropriate to delegate the 10% for operational needs. DAC acknowledges this maladministration. DAC also acknowledges that following the forensic report the Agency devised a Project Management system as means of remedial action. Therefore, the agency reviewed its organisational weaknesses and had considered manners to revoke it. However, sometimes inefficiencies were inevitable, due to the design of the institution. Thus, the question poses, was the institution a funding agency or a regulatory body? If these fundamental issues should be clarified, then DAC could be noted as either being designed as a regulatory body with funding agencies, such as the National Arts Council and National Heritage Council being strengthened, or not. Those councils were designed to disperse funds. DAC was designed in such a way that its focus was to be a regulatory body, and perhaps the capacity of those involved to disperse the funds was not scrutinised.
The Chairperson commented that when the Department sneezes the Portfolio Committee catches the flu. It was renowned that DAC was bestowed with the responsibility to fund 80% of its annual budget to its entities. If the Department funds the operational costs of bodies that were not amongst its entities, such as the service provider in this instance, it raised concern, particularly since no consequence management followed suit of the error.
Ms Malgas answered that since each MoU and other legal documentation had been scrutinised by the Legal Unit before its final signing, the current Legal Unit and Council were not the ones involved in the transaction. The forensic report was conducted by NUBAC; hence it was not an in-house decision or implication that the officials involved were exonerated or remission had occurred. The findings of the forensic report were reported to both the Portfolio Committee and the Council of SAHRA. An in-house legal opinion was that there was no proof to deduce, from the report itself, that employees could be held accountable for financial misconduct. In such case SAHRA would be liable to evoke action against them. However, since the Council was called to improve on their oversight function. The former employee/s could have been held accountable for lack of monitoring the project at the time.
Mr Makondo reiterated why was the Council omitted from the initial Legal Opinion? Since the Council’s failure to conduct oversight over the administration led to the financial loss. Therefore, this Legal Opinion was difficult to accept as an accurate depiction of observation of misconduct. Was the Legal Unit involved in the drafting of the MoU or had the CEO been left to her own devices to draft the MoU due to a non-existent Legal Unit at the time? If so, could the involvement, however limited, of the Legal Unit be clarified?
Mr Mahlangu commented that the manner in which the presentation was crafted was flawed and problematic. The Board should consider carefully how it carried out its responsibilities. The Department should review the positioning of its officials appropriately going forward. The Portfolio Committee was dissatisfied with the report presented, which was why repetition took place.
Ms Guni acknowledged the comments made and all concerns were noted for the current Council. It was agreed that the Board was to take responsibilities for its duties, of which efficacy should flow through the entire organisation. The dissatisfaction was noted as guidance going forward. It should be borne in mind that since this happenstance SAHRA had significantly improved its control system and oversight function.
Ms Malgas concluded that the role of the Accounting Authority was noted under 2.1.5 of the Legal Opinion. In terms of the Legal Unit, a legal advisor was appointed, but the extent of his/her involvement in the drafting of the MoU was unknown.
The Chairperson noted that surely now the stance of the Portfolio Committee should be understood. The CEO had a Legal Unit, but pursued the MoU single-handedly, or so it appears, independent of legal consultation. If it had consulted a legal opinion would the outcome of having 90% of the R2.2 million spent on operational needs occurred? If a Legal Unit revised the MoU would it have developed as it was crafted?
Ms Malgas whispered no in response.
The Chairperson further commented that these happenstances that occurred in entities were totally unacceptable, but officials were exonerated because they merely walked away by the termination of their employment, without consequence management or held into account either during their term of employment or thereafter. The Legal Unit existed because management did not have expertise in legal matters. Therefore, why had management signed a MoU without having the Legal Unit revise it first? It was unnerving that this had occurred. Moreover, taxpayers’ money was being wasted, and it seems that inactivity shoved this matter into a corner. The Council was the Accounting Authority that should conduct oversight without fear or favour. Entities should execute its expectations with ethical competence at all times, with or without surveillance. The Committee may decide in future to convene solely with the Councils to retrieve financial accountability of its entities; as such information should be transparent. The entities should not make any purchases without the Councils being aware of it. Thus far, reference to the forensic report by NUBAC was made. What was the opinion of the Legal Unit within SAHRA? The Portfolio Committee was dissatisfied with the manner in which this was dealt with.
Ms Guni asked how the Council were to deal with the aspect of timing on the situation involved since this occurrence happened under the administration of two councils back.
The Chairperson answered that the current Council cannot emancipate itself from any prior matters, due to the aspect of time, because applicable information could be retrieved from archives and the Company Secretary could assist doing so. The Department should also empower new Council Members in their induction with an abundance of information of pending matters to further ensure delivery.
Department of Arts and Culture (DAC)
Professor Andries Oliphant, Chair of Reference Panel for White Paper Revision, DAC, noted that the revised White Paper had encountered structural changes. In 2015 the Department initiated a comprehensive overview of the 1996 White Paper, of which its review was long overdue. New challenges that had arisen had called for adjustments to repair the system. Consultations occurred across the country, both within urban and rural communities among civil society, as well as with the national entities and the subsectors in the arts, which were the various disciplines. Other governmental departments were also engaged. The first revised draft was completed in September and was internally discussed with the management of DAC, before its release for Public Comment. 1996 was a transitional time of which the structure of the new government was yet being constructed, which meant that when the White Paper was devised the relevant governmental administration was not yet in place to execute it. Many of the officials entrusted to execute it were not part of the initial policy writing process of the White Paper. Those who were part of devising the Policy returned to their primary occupations and had left the balance of the policy writing to the officials, which resulted in a backlog between the writing process and its implementation. An unintended consequence was that the essence may not have been captured as a result, and thus DAC decided that such should not be repeated. The closing of the policy writing by the officials was crucial, as they were responsible for its implementation. Hence, if the officials differed with the proposals, it would be inevitable that problems arose. Thus, the conjecture of communication occurred within the Department first. Thereafter, the second draft was constructed and circulated at the National Indaba 18 and 19 November 2016. Brainstorming occurred over two days, after which the comments and reports that emanated from it devised the third draft that was completed in February 2017. This draft was the copy that would undergo the legislative process. It was also subject to comments, advice and criticism.
DAC aimed to improve the performance of the institutions and reduce duplication, because in some cases there was huge fragmentation and wastage of resources. Unprecedented focus was on creative writing to be integrated as an expressed human-right. Even the National Development Plan 2030 has had a minor focus on arts, yet it emphasised the importance of social cohesion. The revised White Paper considered Policy implementation, monitoring and its evaluation, which had proven inadequate in the elapsed years. DAC was aware of the inefficiency and the weaknesses of the Councils within the Arts and Culture Sector. The formulation of new councils shall have representation of DAC; Trade and Industry, viz. small business; Basic Education; Higher Education and Training, and Science and Technology. The former councils shall be reduced; as the National Heritage Council shall oversee museums, archives, public monuments, historic statues and heritage sites. Resources shall be more focused as well. DAC shall no longer be a funding body, but the National Heritage Council or Foundation shall assume the role. There shall not be the dispensation of large amounts of funding for projects, but coordination of the system for strategic positioning as a role-player in the economy shall occur instead. The manner in which the Department granted oversight had somewhat previously competed with its entities. Also, in the past, officials were sent on international training to revert and play an advisory role in the African context, but that had proven of no benefit for the sector, as they would arrive and then depart again for personal gain. The name of DAC shall change to the ‘Department of Arts, Culture and Heritage’. More entrepreneurial strategies need to be developed for optimal performance of the sector. Heritage had the potential for internal tourism, as well as for foreign tourism, which entailed that the funding model for such should change within the entities. The policy proposed that the sector should be included in Section 18 (a) of the Income Tax Act; since education, social welfare projects and the environment were already included for tax exemption besides art that was also necessary for a holistic living.
Dr P Mulder (FF+) questioned if it were pragmatic to have centralised councils across provinces, as geographically this may not seem viable? It would be feasible if councils that derived from the same province would amalgamate, but across provinces the distance would prove troublesome.
Mr Mahlangu commented that when he was MEC for Arts and Culture for the Province of Mpumalanga, a project with Professor de Villiers from Wits University had begun about the history and heritage of Mpumalanga, but after being dismissed the project ceased. At the core of the project was the discovery of the history of Mpumalanga, as well as the protection of it such as environmental conservation. Also, within it belied exponential potential for tourism. In terms of rand value, several millions or possibly billions could have been garnered as a result of the project. Once relevant projects were put in place the attraction of tourism would straddle across borders. Hence, the DAC would revisit the conception of ‘Conversation’ that included the understanding of people’s history; where they currently were and their vision. The Department should utilise its resources to unravel this element of tourism that has power to garner huge reserves. Another aspect that DAC should consider was the destruction of heritage sites, particularly by communities of agriculture, plantations and by mining. The Department was crucial in protecting those historic resources.
Dr G Grootboom (DA) noted that capitalisation of cultural tourism had not taken root as it had potential for, yet the revised White Paper had omitted it too. Secondly, what were the basic tenets regarding the entities, such that to what extent would the entities be reduced or grouped together so that DAC would have alleviation of burden? The entities were currently accountable to DAC. Thus, if DAC were to become solely the agency of monitoring as per the revised White Paper, how would the entities be called into account to the Department or Parliament going forward? Having said that, to what extent did the provincial policies on arts and culture supersede the policies of DAC? Or was DAC the ultimate policy deviser of which the lower levels of government were to adapt policy contingent too? Also, the Department indicated ‘social cohesion strategies’ without substantiating what it had pertained to. Hence, could DAC justify what it had intended to do about social cohesion strategies, lest it be a pompous term without clarity? Lastly, with the merging of the entities, how many council boards would there be?
Mr Oliphant answered that the merging of the institutions had two possibilities. The first was to create an over-arching regional council for all of the stakeholders and museums in Kwazulu-Natal, and another in the Free State. This could be effective once the legislation for the institutions were devised. The other option was to have all of the councils subject to the National Heritage Council. The entities shall, therefore, remain accountable to Parliament, by means by accountability to DAC. No change of the system of answerability will occur. The concern of geographical disparity was significant, because centralisation would prove viable if those involved were highly efficient without the need for supervision, was professional and capable of reporting. However, this was in the developmental stage and required closer governance. Consideration of the implications involved had made DAC aware that centralisation of the entities was a matter that should not be rushed. A good, strong National Heritage Council with sufficient funding supported by DAC could advise provincial policy, because the articulation between provincial and national government should not be devoid of co-operation and national partnerships. The Constitution declared that Arts and Culture was a concurrent responsibility of both National and Provincial Governments, but the role of National Government was to provide capacity and establish norms and standards, as well as coordinate the system. Yet, many areas in the country do not have the capacity and experience to launch initiatives. Thus, national government should provide measures of intervention through concurrency. During consultation, civilians had complained about developers destroying their heritage sites; lack of facilities, resources and materials, of which the revised White Paper ensured that the development of access was a critical aspect. It would enable DAC to form partnerships with Local and Provincial Government. Social cohesion was about included civil society in educational policy, museums and in sport, as a means of including minorities that were previously segregated against. Cultural diversity required a universal understanding and respect for the differences without using it as a means of distinction or discrimination.
The Chairperson replied that the problem was how to ensure diversity without dissension. As the Committee was aware of the need for it, but was uncertain on how to execute it and evaluate if the impact had yielded positive results as anticipated. The citation of social cohesion had become vogue by everyone, but upon scrutiny little evidence of it was found, because it was much easier said than done. The documentations incorporated social cohesion as means of inclusion, but in reality, a negative picture of communities was evident. Thus, when implementing change evaluation should occur simultaneously, as evaluation in hindsight may prove ineffective for impact.
Other Committee business:
Minutes of 7 March 2017 were adopted.
The report of oversight visit to the Performing Arts Centre of the Free State (PACOFS), Anglo- Boer War Museum, Pan South African Language Board (PanSALB), National Library South Africa (NLSA) and Ditsong Museum of South Africa was adopted.
Cape Town Jazz Festival
The Committee felt that the manner in which it had been treated by the organisers of the Cape Town Jazz Festival 2016 was undermining. The Committee Secretary was denied the privilege to collect the tickets on behalf of the Members; neither was a ticket warranted for the Chairperson, yet the VIP was full of loved ones of the Department. Subsequently, a Committee Member could not attend the Festival even though the purpose of the Committee was not entertainment, but to execute oversight. They had wanted to know where the tickets not utilised for Members had gone to.
The Department responded with an ardent desire to know whom and how many of the Committee Members would definitively attended the Cape Town Jazz Festival, as ticket costs for the VIP seating was an expensive expenditure. However, the Committee wanted assurance that they would be catered for and properly so first.
The meeting was adjourned.
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