SIU Annual Performance Plan; Legal Aid Regulations; Judicial Matters Amendment Bill: public hearings; Criminal Procedure Amendment Bill: deliberations, with Deputy Minister

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Justice and Correctional Services

04 May 2017
Chairperson: Ms C Pilane- Majake (ANC) (Acting)
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Meeting Summary

The Special Investigations Unit (SIU) presented its Annual Performance Plan (APP) for 2017/18. It expected the organisational review to be finalized and relevant key personnel to be appointed following the organisational review process. Further, it expected the Special Investigations Unit legislative amendment to be passed, as well as improvements done on data analytics; with central repository of corruption, malpractices and maladministration revamped.

The Special Investigations Unit expressed concern about outstanding debt, with a large chunk of money being owed by government departments. It engaged National Treasury and it was agreed that National Treasury, together with the Special Investigations Unit, would consider a change in the business model to recover the fees to ensure possible centralisation or partial centralisation of funds in order to simplify the recovery process. Also, the Head of the Unit had a meeting with the President on 17 February 2017, where the President called on all state institutions to settle their outstanding debts with the Unit.

Members buttressed the need to deal with corruption even within the private sector as it was stalling progress towards holistic economic transformation. The Special Investigations Unit indicated that it conducted comprehensive investigations particularly on the Construction Industry Development Board, and significant findings were made and a report was being finalised. On bank collusions, the Unit intended to engage with other regulators within the space, such as the Competition Commission. Members supported the reestablishment of a special investigations tribunal and pointed out the need to engage with other stakeholders such as the Department of Justice (DOJ) to ensure that processes were structured in a proper manner.

Secondly, the Committee conducted deliberations on Legal Aid South Africa regulations. The Chairperson agreed that regulations were long overdue and the Committee did not want to frustrate the process. She directed Legal Aid South Africa to address concerns raised by Members and amend the regulations within the next six months. The regulations were adopted.

Thirdly, the Committee deliberated on the Criminal Procedure Amendment Bill. The State Law Advisor and the Department of Justice took the Committee through the Draft Portfolio Committee amendments to the Criminal Procedure Amendment Bill and the Bill was adopted after a brief discussion.

Lastly, a public hearing on the Judicial Matters Amendment Bill ensued. There were disagreements around the term “exclusive” as relating to sexual offences courts, and the very background of the amendment Bill. Deputy Minister John Jeffery, indicated that during the initial deliberations, the issue on why sexual offences courts were shutting down was raised and it was well understood that magistrates were unwilling to preside over sexual offences matters all round.

Rape Crisis Cape Town Trust and Women’s Legal Centre jointly submitted that Section 37 of the Judicial Matters Amendment Bill 14 of 2016 would not provide for the progressive realisation of specialised services to victims of sexual offences. They recommended that sexual offences courts be established exclusively for the purposes of dealing with sexual offences matters in order to give effect to the recommendations of Ministerial Advisory Task Team on the Adjudication of Sexual Offence Matters (MATTSO), South Africa’s international obligations and constitutional imperatives.

Meeting report

SIU Annual Performance Plan presentation

Adv Jan Mothibi, Head of Unit, Special Investigations Unit, took the Committee through a presentation on its Annual Performance Plan (APP) for 2017/18. He said the SIU expected the organisational review to be finalized and relevant key personnel to be appointed following the organisational review process. Further, it expected the SIU legislative amendment to be passed as well as making improvements on data analytics; with central repository of corruption, malpractices and maladministration revamped.

He outlined challenged faced by the SIU. The current business model to recover fees for investigations was not working effectively. He indicated that as at March 2017, 86% of debts were older than 90 days. The bulk of the outstanding debt came from state institutions not honouring the SIU’s invoices for investigations on time. Operational effectiveness with regards to turnaround times on investigations, and the supply chain management space were identified as main areas that needed to be reviewed.   

A root cause analysis to determine why some targets were not met indicated that a change in the profile of investigative matters (previously the SIU investigated SASSA and Land Reform), delays in finalizing the just and equitable leg of civil matters, and challenges with matters referred to Asset Forfeiture Unit (i.e. quantifying losses) were foremost. In its performance focus on prevention of losses, the SIU prevented contracts and administrative decisions that would have cost government R3.9 billion in 2016/17 financial year.

Mr Andre Gernandt, CFO, Special Investigations Unit, highlighted that the projected operational expenditure for 2017/18 was R562 million, with 76% of the budget going towards compensation of employees. An average of 65.7% of the budget over the MTEF was allocated to the operations programme as the component was primarily responsible for conducting results-driven and case specific forensic investigations and civil proceedings in line with the provisions of the SIU Act. 34% of the budget went towards administrative functions.

He expressed concern about outstanding debt, a large chunk of money being owed by government departments. During engagements with National Treasury, it was agreed that National Treasury, together with the SIU, would consider a change in the business model to recover the fees and to ensure possible centralisation/partial centralisation of funds, in order to simplify the recovery process. Also, the Head of Unit had a meeting with the President on 17 February 2017, where the President called on all state institutions to settle their outstanding debts with the SIU.

Discussion

Ms G Breytenbach (DA) commented on the SIU’s outstanding debt. She said 90 days in debt delays was reasonably benign, and asked for the actual breakdown. She felt that merely mentioning that outstanding debt was more than 90 days did not reflect the predicament the SIU found itself in. She asked about the operational implications of the outstanding debts. She pointed out that the SIU missed some of its targets quite significantly, with some targets being adjusted downwards. She asked for an explanation.

Mr W Horn (DA) commended the SIU for unpacking many issues around its budget. He asked about the SIU’s engagements with Treasury and if the two agreed on timelines to implement the measures to recover outstanding debts. He said it was worrying that some targets within the exclusive domain of the SIU were not met. He asked if it was not defeating the whole purpose of the existence of the Unit to downgrade some of the targets.

Mr M Maila (ANC) said an indication was made that the SIU had powers to prosecute. He sought clarity on that. He asked about the status of its remedial action in relation to the Public Protector’s report.

Mr Maila pointed out that an organisational review process could make or break an organisation. He asked the SIU to unpack the process and identify the stakeholders involved. He asked if the SIU had specific targets for employment and job creation. He noted that the SIU indicated that it sought to engage the public more extensively. He asked about the strategies in place, its footprint countrywide and stakeholders involved.

Mr N Matiase (EFF) appreciated the comprehensiveness of the presentation. He commented that the SIU seemed not to be making any significant input in dealing with perceptions around government corruption; the diminishing public trust and confidence in public institutions. He asked if the SIU had enough capacity to turn the situation around. He noted that the SIU initially used to have a special tribunal and asked why it was disbanded.

He pointed out that the SIU made a request for further amendments to the SIU Act. He asked about the specific areas SIU wants amendments on. He also remarked that the current Act stated that the President had no legal obligation to abide by the SIU’s investigative findings. He said it was a serious lacuna in the SIU Act, which had to be rectified as a matter of urgency. How did it intend to deal with the weaknesses in the current legislation and how did it hope to address them?  

Mr Matiase pointed out that the SIU did not indicate any attempts to carry out investigations within the private sector. Issues around the President’s involvement in the construction industry and business collusion had to be dealt with. The SIU’s focus seemed to be only on Government, when there were challenges in the private sector as well. He asked for details on the SIU investigations in the private sector to be furnished on a later date. He added that he was not happy with coloured female representation within the organisation. This had to change.

Mr S Swart (ACDP) noted the crucial role that the Unit played. He expressed concern about the unwillingness by most government departments to pay for the SIU’s services on time; it undermined its work of tackling corruption and maladministration. He said that the R52 million (actual value of money and/or assets recovered) in 2015/16 was too meagre, and it showed that little progress was being made in nipping corruption.

He acknowledged the changing profile of investigated matters and asked why the SIU was not following up on the recent State of Capture report from the Public Protector; there were big issues that could lead to the recovery of billions worth of Rand. He said that the SIU relied on proclamations from the presidency, when there were issues around the President himself, and that was problematic. He asked why there were no investigations around suspicious transactions in Gupta-owned companies. Was that not within the SIU domain? He added that investigations should be expedited. Also, Parliament had to step up and assist the SIU to address the problems of late payments by departments as it undermined its work.

Mr B Bongo (ANC) noted improvements in the presentation and advised the SIU not to be distracted. It had to focus and avoid dealing with issues haphazardly. He asked how the SIU would address overlaps on other offices such as the Public Protector’s and how the Committee could assist. It was a positive that the SIU had an unqualified audit report. He asked how the SIU intended to deal with real and perceived corruption in a structural way.

He asked about the extent to which the SIU was carrying out investigations on land related issues. Vast tracts of land were still in the hands of few individuals and companies, and had to be distributed to the people of South Africa. Also, how did the SIU plan to accommodate issues around bank collusion and some such issues within the private sector? He pointed out that a substantial amount of money went to lease payments. He suggested that the SIU liaise with Department of Justice (DOJ) as there were vacant buildings that could be renovated and used by the SIU to contain costs.

Mr Bongo remarked that late payments by departments was clearly in breach of the Public Finance Management Act. He asked what remedies the SIU was suggesting, and how much money was involved.

The Chairperson noted the importance of articulating challenges and proffering possible solutions, so they did not remain as challenges forever. She pointed out that there was a quest for fighting corruption, which the SIU had to grasp. She supported the point by other Members that there was a need to deal with corruption even within the private sector as it was stalling progress towards holistic economic transformation.

She said the reestablishment of a special investigations tribunal was a good idea. However, there was need to engage with other stakeholders such as the DOJ to ensure that processes were structured in a proper manner. She asked whether the SIU experienced false alarms, as they were not only expensive but also reputation damaging to the SIU and individuals involved. She asked if the current Act dealt with false disclosures.

Adv Mothibi replied that the SIU was due to meet with National Treasury to map the way forward on debt recovery from state institutions. A sustained approach would be to have a degree of centralisation of the funds as aforementioned. Also, the SIU would furnish the Committee with a comprehensive report on outstanding debt.

He pointed out that only two targets were missed and the SIU was making efforts to spruce up its capabilities to deliver effectively. Some targets were revised downwards after taking into account challenges affecting the Unit but there were significant improvements from previous quarters. He said that the SIU was working on perfecting its target setting mechanisms.

On overlaps with other institutions, Adv Mothibi said there was a Memorandum of Understanding (MOU) with the National Prosecuting Authority (NPA) in the process of finalization. Also, an MOU with the Public Protector was being worked on as a means of delimiting mandates and addressing overlaps. He added that a special tribunal had to be set up as soon as possible as it was necessary, especially in dealing with civil processes.

The Chairperson advised the SIU to submit responses in writing due to time constraints.

Adv Mothibi said that as the Committee was aware, the State of Capture was done by the Public Protector and it was at the discretion of the Public Protector to recommend the services of SIU.

On private sector investigations, he said that the SIU conducted comprehensive investigations particularly on the Construction Industry Development Board, and significant findings were made and a report was being finalised. On bank collusions, the SIU intended to engage with other regulators within the space, such as the Competition Commission to enable collaborations; interactions with various regulators was the norm. Also, the SIU was continuously improving and was relentless in holding the private sector accountable.

Legal Aid SA regulations deliberations

The Chairperson asked DOJ to highlight specific areas that were raised in the previous engagement with the Committee.

Mr Horn (DA) asked DOJ to specifically deal with issues relating to the representation of land claimants.

Mr Mpumlwana (ANC) sought clarity on what the statement “if there is a prospect of success in litigation” meant. What criteria was being used to evaluate the prospects of success?

The Chairperson felt clause 9.3.c should be worded as “the best interest of women and children”, not children alone. She said some aspects of the regulations did not address concerns expressed in the previous engagements, especially on the representation of women.

Ms Theresa Ross, State Law Advisor, DOJ, explained that regulations provided for the handling of land reform cases subject to the availability of resources from the executive.

Mr Swart (ACDP) said he was supportive of suggested amendments but sought clarity on whether the Committee could make further inputs at this stage.

The Chairperson agreed that regulations were long overdue and the Committee did not want to frustrate the process. She directed Legal Aid South Africa to address concerns raised by Members and amend the regulations within the next six months. She moved for the adoption of the regulations.

The regulations were adopted.

Afternoon session

Criminal Procedure Amendment Bill deliberations

Ms Henk du Preez, State Law Advisor, DOJ took the Committee through the Draft Portfolio Committee amendments to the Criminal Procedure Amendment Bill. Amendments were as follows:

Long Title

To omit “mental defect”, and to insert “intellectual disability”.

Clause 1

On page 3, after line 23, to insert-

“referred to a Children’s Court as contemplated in section 64 of the Child Justice Act, 2008 (Act No. 75 of 2008), and pending such referral be placed in the care of a parent, guardian or other appropriate adult or, failing that, placed in temporary safe care as defined in section 1 of the Children’s Act, 2005 (Act No. 38 of 2005)”

On page 3, in line 34, after the word “unconditionally” to omit-

“where the court has found that the accused has not committed any offence”.

And to insert-

“referred to a Children’s Court as contemplated in section 64 of the Child Justice Act, 2008 (Act No. 75 of 2008), and pending such referral be placed in the care of a parent, guardian or other appropriate adult or, failing that, placed in temporary safe care as defined in section 1 of the Children’s Act, 2005 (Act No. 38 of 2005)”

Clause 2

On page 4, in lines 38 and 39, to omit-

“or to any property belonging to him or her or to any other person”.

On page 4, after line 50, to insert-

“referred to a Children’s Court as contemplated in section 64 of the Child Justice Act, 2008 (Act No. 75 of 2008), and pending such referral be placed in the care of a parent, guardian or other appropriate adult or, failing that, placed in temporary safe care as defined in section 1 of the Children’s Act, 2005 (Act No. 38 of 2005)”

On page 4, in line 60, to omit all the words, and to insert [be] released unconditionally; or

“referred to a Children’s Court as contemplated in section 64 of the Child Justice Act, 2008 (Act No. 75 of 2008), and pending such referral be placed in the care of a parent, guardian or other appropriate adult or, failing that, placed in temporary safe care as defined in section 1 of the Children’s Act, 2005 (Act No. 38 of 2005)”

The Criminal Procedure Amendment Bill was adopted with amendments.

Public hearing on the Judicial Matters Amendment Bill

The Chairperson emphasized the need to unpack issues especially in relation to what was best between specialized sexual offences and hybrid courts.

Mr Swart (ACDP) said he was not in favour of the removal of the word “exclusive.” He said the overriding reason for the amendments was that magistrates were not willing to hear sexual offences related matters. Specialised sexual offences courts were the best way to go.

Mr Matiase (EFF) said it was disturbing that some magistrates were unwilling to preside over sexual offences related matters. Magistrates’ work was to preside over any matter brought before them; it was a matter of professional and ethical conduct. He said stakeholders had to deliberate on the best and workable models of sexual offences courts to help victims.

Ms Breytenbach (DA) said sexual offences courts were hugely successful and did not die out because magistrates were not willing to preside over matters. They were actively dismantled and it was “nonsense” that magistrates were unwilling to hear sexual offences. She pointed out the need for sexual offences courts because hybrid courts diluted the effectiveness of courts in dealing with sexual offences. The Committee had to work on Section 37 that dealt with the exclusivity of the courts

The Chairperson said it was worrying that Members were trashing the very background motivating the amendment.

Deputy Minister John Jeffery, indicated that during the initial deliberations, he was a member of the Committee, and Ms Breytenbach was at the NPA. The issue on why sexual offences courts were shutting down was raised and it was well understood that magistrates were unwilling to preside over sexual offences all round. He asked Ms Breytenbach to provide evidence to the effect that the said courts were effectively dismantled. He emphasised that the provision of specialised courts which provided for the sensitivity of sexual offences matters would continue. The issue was solely around whether these courts should hear sexual offences exclusively or hear other matters as well.

Mr Sarel Robbertse, State Law Advisor, DOJ said the Act provided for the designation of courts to hear sexual offences by the Minister. Current legislation preserved the exclusivity of courts to hear sexual offences. It was not necessary to keep the word “exclusive” in the current legislation. He said the current clause preserved exclusivity.

Mr Bongo (ANC) said the amendments brought forward were assisting, especially in broadening the scope of jurisdictions. However, having exclusive courts was a challenge as resources might not permit.

Mr Mpumlwana (ANC) agreed that having sexual offences courts was going to be difficult especially in rural areas.

Rape Crisis Cape Town Trust and Women’s Legal Centre submission

Ms Jeanne Bodenstein, Advocacy Coordinator, Rape Crisis Cape Town, submitted that Section 37 of the Judicial Matters Amendment Bill 14 of 2016 would not provide for the progressive realisation of specialised services to victims of sexual offences.

Rape Crisis recommended that:

  • Sexual offences courts must be established exclusively for the purposes of trial of sexual offences matters in order to give effect to the recommendations of Ministerial Advisory Task Team on the Adjudication of Sexual Offence Matters (MATTSO), South Africa’s international obligations and constitutional imperatives
  • An amendment be drafted to ensure that all sexual offences cases in the jurisdiction of an established sexual offences court must be heard in that sexual offences court
  • There was no need for directives as per Section 55(A) (7) as it did not support the implementation of hybrid courts

Ms Bronwyn Pithey, Director, Women’s Legal Centre, submitted that Section 37 of the Judicial Matters Amendment Bill 14 of 2016 sought to amend Section 55A of the Sexual Offences and Related Matters Act; the most significant aspect of the proposed amendment being the removal of word “exclusively”. She said it was in direct conflict with the recommendations of MATTSO, which were based on in-depth research and expertise of the Task Team. The reasons for recommending the progressive realisation from hybrid sexual offences courts to sexual offences courts compliant with the sexual offence court Model 3, were founded on said research and expertise, and with the knowledge that although the intention was to prioritise sexual offences on a mixed court roll, the fact that the court heard other matters continued to compromise the objectives of sexual offences court and a victim centred approach to the management of these matters.      

The Chairperson indicated that the Committee needed not to make any conclusions, but was being sensitised on issues. The Bill was to be tabled on a later date.

The Deputy Minister said that the DOJ was not disputing the fact that there were specialised sexual offences courts. The dispute was on the use of the term “exclusive”. He suggested that the Committee invite regional court presidents to get some perspectives on the court rolls and case management. He said the implication that the DOJ wanted to drop the term “exclusive” because it did not care was unfortunate.

Mr S Swart (ACDP) suggested that the DOJ meet with NGO’s to clear the air around exclusivity of courts and all attendant issues.

The Chairperson agreed and meeting was adjourned.   

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