The Portfolio Committee on Justice was briefed by the Public Protector, the South African Human Rights Commission (SAHRC) and the Information Regulator on their 2017/18 Annual Reports.
In its briefing, SAHRC mentioned that this was the first full performance cycle for most Commissioners. It has been a very challenging time for the Commission which continued to execute it mandate amidst a growing trend of human rights violations and despite budget cuts.
An overview of key performance highlights that included:
-Maintaining an unqualified audit opinion for the fifth time in a row
-Successfully litigating court cases that confirmed the Commission’s positions and recommendations
-Conducting four national investigative hearings: the status of mental healthcare in South Africa; the lack of safety and security measures in schools for children with disabilities; social cohesion and xenophobia; and land
The Commission dealt with 9 450 cases and finalised 7 843 (83%); produced annual research outputs reflecting on the state of human rights in the country; and completed an advocacy and communications report highlighting key stakeholder engagements including provincial indaba; public outreach engagements targeting rural and peri-urban areas; public road shows; and capacity building workshops. Personnel costs accounted for 72% or R128.7 million of the budget. Corporate Support committed costs are allocated 26.1% or R46.6 million of the budgets. Personnel and corporate services related committed costs amount to 98.1% or R175.3 million of the budget.
The Committee talked extensively to the budget constraints of the Commission; the recourse SAHRC for non-compliance to their recommendations; compliance to the Promotion of Access to Information Act (PAIA); and the case management system.
In addition, Members also wanted clarity on the Auditor-General findings, i.e. consequence management, fruitless and wasteful expenditure, as well as irregular expenditure.
According to Public Protector South Africa (PPSA) the combined workload of the Office for the past two financial years amounted to a whopping 29 498 cases. Out of the 29 498 matters, 24 359 were finalised. “Finalised” referred to cases settled, referred to alternative competent bodies or assessed and rejected on the grounds that they fall outside the ambit. A comparison of the 2016/17 and 2017/18 statistics showed a modest improvement. For instance, total workload for 2017/18 rose to 18 356 from 16 397 in 2016/17. The Office finalised 13 572 matters in 2017/18, which was an increase from 10 787 in 2016/17. Of the matters finalised in 2017/18, 39% were upheld.
The institution achieved an unqualified audit opinion with material misstatements.
PPSA has accumulated a deficit over the years in that the liabilities exceed assets. This was partly attributable to insufficient funding for this constitutional institution to fulfil its mandate in line with Section 181 of the Constitution. The demand for PPSA’s services over the past years has increased, due to its publicity and accessibility, yet the budget allocation has been reduced in line with the country’s economic challenges in the fiscal policy. PPSA had to reprioritise its medium term expenditure framework (MTEF) budget in order to absorb the budget cuts implemented by National Treasury during the 2018 MTEF process. Funding of crucial positions and a case management system were cited as key motivations for additional funding.
Members asked extensively on the Auditor-General findings and pointed out that it was incumbent on the Public Protector to ensure there was full compliance with the PFMA. While the irregular expenditure was not as significant, compared to other government institutions, Members talked to the ‘principle of the matter’ and the fact that PPSA was an integrity institution that should lead by example.
The Regulator admitted that the establishment of the Regulator has not progressed as swiftly as Members anticipated and also alerted Members that South Africa was experiencing an unprecedented number of data breaches the Regulator was unable to deal with effectively. The briefing also dealt the achievements against planned targets; data breaches; litigation; stakeholder engagement; transfer of PAIA functions; the Independent Electoral Commission (IEC); the National Consumer Commission; and direct marketing.
The service delivery model (SDM) has been developed and the Regulator aligned the SDM to the strategic plan and key outputs were revised in line with the available human capacity. The Regulator did not produce AFS for 2017/18 and accounted for the use of its allocated budget of R24 million through an expenditure report which was compiled by the Department of Justice. The Regulator also did not spend its entire budget due to delays in the establishment of its administration.
Members said it was a concern that there still seemed to be a problem with the establishment of the Regulator, especially because of its important function in the lead up to the elections citing the manipulation of elections by Russia on the back of data breaches.
Public Protector South Africa (PPSA)
The Public Protector, Adv Busisiwe Mkhwebane, gave an overview of the mandate of Public Protector South Africa (PPSA), as well as additional key statutory mandate areas. She said Monday, October 15, 2018 marked the second year anniversary of her appointment as Public Protector. She said she learned over the last two years that more than 95% of the complaints would be about “bread and butter” matters while the rest would be the so-called “high profile matters”. At the beginning of the term of office, she rallied the team in pursuit of the Public Protector Vision 2023 to guide operations. Through this eight-pillared Vision, the aim was to take the services of the institution to the grassroots, where these “bread and butter” matters are primarily located.
The Office’s combined workload for the past two financial years amounted to a whopping 29 498 cases. Out of the 29 498 matters, 24 359 were finalised. “Finalised” referred to cases settled, referred to alternative competent bodies or assessed and rejected on the grounds that they fall outside the ambit. A comparison of the 2016/17 and 2017/18 statistics showed a modest improvement. For instance, total workload for 2017/18 rose to 18 356 from 16 397 in 2016/17. The Office finalised 13 572 matters in 2017/18, which was an increase from 10 787 in 2016/17. Of the matters finalised in 2017/18, 39% were upheld.
There was also an improvement in the number of new complaints attracted in 2017/18. Figures showed that 11 943 new matters compared to 9 563 in the preceding year. This could mean that there has been a slight growth in awareness of the mandate of the Public Protector over the 12 month period ending March 2018.
She continued with the overview, but also stated that the past two years have also seen the institution grappling with its historic challenges of resource constraints. In addition, the Office also had to contend with the unintended consequences of the landmark judgment of the Constitutional Court, because since that judgment, there have seen a spike in the number of judicial review applications against investigation reports. This exhausted the already meagre litigation budget.
Mr Vusi Mahlangu, CEO, PPSA, continued with the performance highlights and strategic outcomes oriented goals. The institution achieved an unqualified audit opinion with material misstatements.
According to Ms Yalekile Lusibane, CFO, PPSA, the PPSA has accumulated a deficit over the years in that the liabilities exceed assets. This was partly attributable to insufficient funding for this constitutional institution to fulfil its mandate in line with Section 181 of the Constitution. The demand for PPSA’s services over the past years has increased, due to its publicity and accessibility, yet the budget allocation has been reduced in line with the country’s economic challenges in the fiscal policy. She also talked to the commitments and liabilities, the expenditure report and the finding by the Auditor-General – its causes and the interventions. PPSA had to reprioritise its medium term expenditure framework (MTEF) budget in order to absorb the budget cuts implemented by National Treasury during the 2018 MTEF process. She continued to state the organisation’s case for additional funding, citing the funding of crucial position and a case management system as key motivations.
Adv G Breytenbach (DA) welcomed the Deputy Public Protector, Mr Kevin Malunga and asked if there been a change in his security clearance since the Committee had been told in prior meetings that he could not be used optimally in the Office because of his security clearance. There are serious concerns about the finances at the Office of the Public Protector. It was acknowledged that there were material misstatements because of staff shortages and she asked why there are no people acting in those positions. The Office was effectively insolvent again despite the additional R15 million from the Justice Department and there was still an accumulated deficit of R3 million. The Public Protector has made sweeping statements and casted aspersions on the management style of her predecessor, but the Office was in a much worse position than before – virtually bankrupt with no workable plan and a lot of the competent and experienced staff has left and she asked for comment on that issue. Large sums of money have been spent on questionable litigation and the Auditor-General has concerns about the Office as a going concern. She asked whether the Public Protector’s shunning of external funding has contributed to this financial mess.
Mr W Horn (DA) asked about the continuous and constant vacancies on senior management level. Last year the Committee had been informed that the then CFO was relived from his post as a result of “consequence management”; which ordinarily would be welcomed by the Committee. The Annual Report showed that ultimately there had been a payout of just under R1 million to the then CFO. If consequence management led to a finding of misconduct and termination of employment contract, there would be no need to pay a severance package and it needed an explanation. The Committee was also told that the matter with the then CEO was sub judice because of an issue with his previous employer, the Department of Rural Development and Land Reform (DRDLR) and he asked what ultimately happened. In 2016 the Public Protector said a new case management system would be developed and then funding was an issue and later on the Committee was told that the State Security Agency (SSA) was assisting and now all of it has been put on ice. It was part of a vicious cycle, because if one of the repeat findings talked to the percentage of cases investigated and finalised and the percentage in declining investigations. The Auditor-General talks about the unreliability of the information and because this was a repeat finding, there was a sense of a fundamental disagreement between the Auditor-General and the Public Protector. It really boiled down to the Auditor-General saying that there was ‘no room for argument that the figures contained in the Annual Report could be correct’. There was also a repeat finding on supply chain management (SCM) where certain contracts were extended or amended without a properly authorised official signing off on it. Who signed off on those contracts? On the increased irregular expenditure, he said last year the Public Protector blamed the increase in irregular expenditure on her predecessor and he asked who should be blamed now. All of this should be a big worry to the Committee. The Public Protector was mandated to deal with maladministration in other governmental public institutions and the public will lose confidence in this Office to effectively deal with maladministration if this Office cannot look after its own books properly. Last year the Committee heard of an audit action plan, but most of the findings are repeat findings. One of the things the Public Protector, when she took office was quite firm on, that she going forward, will not be making use of consultants yet consultant costs grew from R1.5 million in 2016 to R13 million in 2017 and to R24 million in 2018. The Committee must ask for an accurate breakdown in respect of the costs of consultants.
Mr Maila asked what was found in terms of the follow-ups the Public Protector made on compliance of her recommendations. Although the Committee acknowledged the unqualified audit opinion, Members can only really be happy if it was a clean audit and he asked what the plan was to achieve a clean audit opinion. He asked whether cases are being referred to the Public Protector in terms of the ongoing State Capture Inquiry and what the relationship between PPSA and the Zondo Commission was in terms of preventing parallel processes. He said the Public Protector when she took office said she will strive to make people their own liberators. He asked what was being done to realise that.
Adv S Swart (ACDP) said the Committee had, over the years sympathised with the financial position of the Public Protector particularly because of the increased number of review cases. The Committee has expressed its concern on this. The Annual report referred to “awaiting a bill of costs” and he asked if that has been received yet. Additional funds have been requested every year and the Committee has been supporting that and it has not been forthcoming except for the R15 million. The going concern issues in terms of lack of funding were understandable, but procurement management was incumbent on the Public Protector to make sure there was full compliance with all the conditions in the Public Finance Management Act (PFMA). Comparatively speaking it was not big figures, but it was the principle of the matter. He asked whether consequence management would be sufficient to eradicate these concerns. In terms of the possible amendment to the Public Protector Act, he wanted to know if there had been any progress made. He asked whether the governance advisory board had been made use of at all. The decrease in the upcoming budgets has tremendous implications for the work of the Office and the Committee wanted to offer its support, but the Public Protector should then ensure that these issues are dealt with.
Mr V Smith (ANC) said the functioning of the internal audit was not up to scratch and maybe that was why contract management and procurement are in the state it was. He asked who this function was outsourced to and what remedial action will be taken.
Mr K Mpumlwana (ANC) acknowledged the Public Protector’s focus on ordinary citizens and commended the outreach efforts. He asked what Treasury’s position was on the budget allocation and how the Committee can assist. He said the Committee supported the decision not to take money from foreign governments to protect the Office’s independence.
The Acting Chairperson said the target for outreach clinics was 84 clinics per province by 31 March 2018 and that was not achieved. A cause for concern was the non-compliance findings in terms of the financials and as an integrity institution the Office needed to lead by example. There was also a mismatch between spending and performance and she asked for comment.
On the issue of Mr Malunga, the Public Protector said that matter was officially referred to the Chairperson of the Portfolio Committee and to the Speaker. Training, for which the Deputy Public Protector was responsible, was a very strategic function. The training focused on procurement law, reports and standardising of processes. The deficit in financing was also very concerning to the Office of the Public Protector and she specified that it was an accumulated deficit. The R17 million in irregular expenditure can be ascribed to 2016 and prior years and for her term, she said the Office incurred irregular expenditure of about R1 million which was due to the previous CFO signing for the Falcon building without following proper processes.
On ‘shunning’ private donations, she said it was very clear that this was a constitutional institution that should be funded properly. At any rate, the biggest need related to staff. Legal costs are because of institutions that are supposed to be protecting the Public Protector in terms of Section 181, but they are the ones taking PPSA to court, especially on judicial review. There are cases PPSA needed to defend because of its impact on the mandate of the Public Protector.
She said the CFO that was released was a matter that was before the court and it was a negotiated settlement between attorneys. The CEO was still on a short-term contract, because that matter was also before the court and it might be resolved very soon. On the case management system, she said the prior costs were around R12 million or R15 million that was lost and she was not sure why a case was never opened against implicated officials. State Security was helping the Office to use the information and to see how to create a system using the already existing process flow which was already drafted. State Security also charged an amount PPSA did not have. On the repeat findings, she said it was on the case management system, but it did not exonerate senior managers. Those managers have been issued with letters to explain their miscalculations. She said she was not aware of a fundamental disagreement between herself and the Auditor-General. She called the Auditor-General after the meetings and said she was available to intervene if officials were not cooperating. It was a fruitful meeting and she said she also requested the AG to meet with the CEO, provincial heads to tell them about the implications of their conduct. The breakdown on consultants will be provided to the Committee.
Compliance was a struggle for PPSA. The Constitutional Court said, when a report was taken under review that until the matter was set aside, that report was binding. In many instances it was a delay tactic and the Office did not have the resources to take matters to court to enforce recommendations. It was an unfortunate situation, because these are matters between government institutions that relied on the same fiscus. In the rules that were published in the government gazette, these people will be referred to the Speaker so that they can account to the relevant portfolio committees. PPSA was definitely working towards a clean audit opinion with a current competent team.
The Public Protector confirmed that there are matters that have been referred to the State Capture Commission of Inquiry and all evidence has been handed to Deputy Chief Justice Zondo. Complaints have been lodged relating to the terms of reference on specifically the Gupta family and the terms of reference that included ‘any other family’. An agreement was made with Judge Zondo that PPSA will write to the complainant to inform the complainant that this matter has been referred to the Commission. There was a concern that so much money was availed to these commissions while there are organisations that also dealt with issues of corruption.
She said ‘Vision2023’ was being continuously implemented and it was being addressed in the Strategic Plan. PPSA was visiting provinces and engaging communities and educating people on their rights. PPSA has also been encouraging government institutions to establish internal mechanisms, e.g. around 3 500 complaints were launched with the SARS Ombudsman and those complaints would have ordinarily ended with the Public Protector.
On the bill of costs, she said PPSA was waiting on the finalisation of the matter and nothing has been received yet. The going concern matters were alarming and the deviations were as a result of not having senior officials within finance and SCM. There was a senior manager that acted as the CFO and she unfortunately resigned at the end of July. The non-compliance findings were as a result of the capacity of that person and she decided “to jump ship”. PPSA was investigating other related authorisations and approvals during her tenure that might cause problems. Other irregular expenditure picked up this year was never declared.
On the outsourced audit function, the Public Protector said it was a company she found there and their contract was expiring soon. She agreed that the company was not up to scratch, because it was one of the internal discussions on how these things happened with an internal audit function. Currently PPSA was trying to have its internal control measures, but the process was slow. She said the PPSA has requested Treasury to, at the very least not cut the baseline, because currently commitments outweighed goods and services resulting in a monthly accumulating deficit. On clinics, she said consequence management was being undertaken, because it was not explainable why Mpumalanga was not achieved when other provinces could. That structure was changed in the current financial year and now these clinics will be done per district rather than provinces to have bigger impact.
The Chairperson asked for clarification on the ‘short-term contract and she also wanted to know how many cases were older than five years.
The Public Protector replied that it was an initial three-month contract which has been extended to a year, for stability and until the issue was resolved. The cases older than five years was a programme currently being run by the Deputy Public Protector.
Mr Mulunga said he wanted to clarify his delegated functions. Currently he was overseeing the backlog complaints, i.e. complaints older than two years. It was a very involved process, because it actually emanated from the actual work of the different branches and provinces. He also chaired the task team meetings that dealt with ‘think tank’ files and the task team was really a system that monitored the speed investigations are moving and closing. In addition, he quality checked and drafted reports and section 79 notices and the training was on the report writing and notices. Another project he initiated was in partnership with the University of Stellenbosch on procurement law. The State generally got into a lot of trouble in terms of procurement investigations which were very complex. On his security clearance he clarified that he was a naturalised citizen and it was not unlawful and there has been a lot of ‘lazy journalism on the way this was written about’. Naturalised citizens can only get top secret security clearance after 20 years. The work was continuing and he said he has led thousands of investigative processes and his term expired in December 2019 and “the ship has sailed”. The issue really was how the term was finalised, that the work has been done and assisting the institution to get to the next level for the remainder of his term.
Mr Smith referred to the long outstanding cases and according to the Annual Report the opening number of those are about 5 000 and the current cases were just under 4 500. All Mr Malunga said was that he was running a project and he asked for elaboration. He said unless something different was going to happen, he could not see how this could be covered in the period Mr Malunga has left.
Mr Horn said it was quite clear that there was not a lot of harmony and peace within senior management level since the Public Protector took office and he questioned the appointment processes. He said the instability has a definite impact. According to newspaper articles the Chief of Staff (COS) that was appointed by Adv Madonsela was accompanied off the premises due to security concerns. It was a senior position that must act as a type of a safety net for the Public Protector that warned about risks and dangers in terms of performance management. There was a later appointment that was put on hold awaiting proof of qualification and the person was appointed in an acting position. He asked if that proof has been submitted and whether the appointment has been finalised. If not, he asked why an exception has been made contrary to what the law required.
Adv Breytenbach said her question about the security clearance was not an attack on Mr Malunga, but rather to highlight the anomaly that he has been doing this job for some time and yet he was sidelined for no reason. She asked if part of his job was to train people to write reports and if so, who these people were. She said she cannot imagine the Deputy Public Protector ‘wiling away his time teaching lawyers to write reports.
Adv Swart referred to the bill of costs referred to on page 102 on the notes to the annual financial statements (AFS). It indicated that the costs order that was granted under contingent liabilities and in terms of the financial statements the Public Protector indicated that the bill of costs have not yet been received at that time. He asked if those had been obtained yet and what the amounts are. Security clearance was never a relevant issue when Mr Malunga worked with the previous Public Protector and he asked Mr Malunga if the thought he was being optimally used as the Deputy Public Protector.
On the security clearance of Mr Malunga, the Public Protector said she wrote to the Chairperson of the Portfolio Committee on the concerns she had in terms of the Constitution which established the SSA, the National Intelligence Strategic Act and asked whether as the Committee and herself, these laws must be violated. After the March 2018 engagement, Mr Malunga was delegated the task of the older cases and most of these cases are older than two years – from 2016 and older. On the allegation of disharmony, she said it could be because she expected people to do their work. She agreed that processes of appointing staff needed to be rigorous so that the organisation did not get admitted chartered accountants that did not understand the PFMA. The COS was in an acting position, but has since submitted a resignation letter and the post will be advertised, as well as for the vacant Chief Operations Officer post. These are key management positions that will ensure that there are not these menial maladministration issues at the institution.
Mr Malunga admitted that he was not totally satisfied with the progress made on the backlog cases. Fortnightly there was a task team meeting and one of the items was that the three branches: good governance and integrity; provincial investigations; and administrative justice and service delivery will make a presentation on their backlogs in terms of numbers and actual cases. His instruction when this task was delegated to him was as many as the irrelevant or redundant matters needed to be culled to try and focus on the matters that will enhance the mandate of the institution. He said it was quite frustrating, because the numbers are not moving as fast as he would like, but his role was more of an oversight role. He said he was training the investigators and he has done eight out of the nine provinces. He agreed that before he was delegated these tasks, he was not being optimally used on his level.
Mr Mahlangu said in reality there had been a lot of complacency in the organisation that was inherited and this was evident by the findings, but the focus was to concentrate on the job at hand. On repeat findings, he explained that if a contract was running for three years and it was signed in 2016, there was nothing to be done until that contract expired and it will keep showing up in the books. He admitted the organisation was technically insolvent, but because of the MTEF budgeting, there was State assurance that there will be money because of the baseline. It was not an ideal situation, because it made operations difficult, because from time to time austerity measures have to be employed to minimise deficits to stay within the baseline. It compromised core business that needed to be done. He asked the support from Members in PPSA’s request for additional funding. The internal audit was a clear indication of what was happening in the past. He agreed that there was not sufficient budget to have internal capacity, but the management of those people was a problem and coupled with that was even the audit committee from previous years was not sitting regularly. At the end of the financial year it was evident they are not effective. The name of the company was Ngubane & Associates and their contract expired February 2019. There was still an audit plan in place and a new audit committee that can assist in monitoring them for the remainder of the contract.
On the contingent liability, Ms Lusibane confirmed the bill of costs has not been confirmed at this stage. She also clarified that the consultant costs included the internal audit firm, as well as legal fees of the cases the Public Protector has mentioned that needed to be defended from time to time. The irregular expenditure in the audit report was disclosed by PPSA and the Auditor-General’s findings showed there were no steps to prevent irregular expenditure. About R18 million of the reported irregular expenditure was contracts signed off in the 2016/17 financial year and prior and those are still legally binding. In terms of the ongoing consequence management process, there was a hope that National Treasury will consider condoning those contracts once evidence was provided that consequence management has been taken against affected officials. A clean audit strategy has been developed that was approved just before the end of September and there was an in-house governance called the audit steering committee that met on a monthly basis to monitor the implementation of the action plan developed after the findings raised by the Auditor-General.
The Public Protector said the governance advisory board was disbanded in 2017, because the members were never available to continue.
Mr Horn said the COS he was referring to was Ms Linda Molelekoa, but the Public protector referred to a “he”. He asked if there was another appointment after her and that PPSA will rather be appointing a COO. The public Protector must take away from this meeting that things will not improve by this time next year if the situation in respect of senior management.
The Public Protector said she agreed with Mr Horn on senior management that should be performing their duties and the organisation should be getting quality people that maintained their integrity. If people resigned because they cannot maintain the standard of the Office, then the Office should continue to get proper people. On the COS, she was not referring to Mr Dlamini who was brought by the former Public Protector. Ms Molelekoa was Acting COS and the organisation was in the process of advertising for both the COS and COO positions. She apologised for misspeaking and said English was not her first language.
The Acting Chairperson said the Committee will send a letter to the Office of the Public Protector requesting critical information in writing.
PPSA was released.
South African Human Rights Commission
Ms Devikarani Jana, Deputy Chairperson, SAHRC, said it was a great pleasure to be in Parliament again. She said that when the Act was passed to establish the SAHRC she did not envisage that it would remain as relevant as it was today. The pressures put on the Commission by society and the communities are great and it enhanced the relevance of SAHRC. The Commission has an enormous role to play in society, because there are still high levels of inequality and inequity and other socio-economic challenges. SAHRC’s mandate was not just focused on political issues, but also on socio-economic rights.
Adv Andre Gaum, Commissioner, SAHRC, said this was the first full performance cycle for most Commissioners. It has been a very challenging time for the Commission which continued to execute it mandate amidst a growing trend of human rights violations and despite budget cuts.
Violence in society against women and children; violent service delivery protests; and the dire state of public healthcare facilities are a few of the systemic challenges faced by the country.
The Commission has exercised its protection mandate through alternative dispute resolutions, litigation and conducting several strategic engagements through investigating rights violations involving communities, government departments and civil society. The Commission has intensified advocacy and human rights education through outreach in rural and peri-urban communities through community media. Resource constraints remain a challenge to the delivery of our broad mandate.
Adv Tseliso Thipanyane, CEO, SAHRC, gave an overview of key performance highlights that included:
-Maintaining an unqualified audit opinion for the fifth time in a row
-Successfully litigating court cases that confirmed the Commission’s positions and recommendations
-Conducting four national investigative hearings: the status of mental healthcare in South Africa; the lack of safety and security measures in schools for children with disabilities; social cohesion and xenophobia; and land
The Commission dealt with 9 450 cases and finalised 7 843 (83%); produced annual research outputs reflecting on the state of human rights in the country; and completed an advocacy and communications report highlighting key stakeholder engagements including provincial indaba; public outreach engagements targeting rural and peri-urban areas; public road shows; and capacity building workshops.
He continued with the achievement of targets by strategic objective and the budget analysis. Personnel costs accounted for 72% or R128.7 million of the budget. Corporate Support committed costs are allocated 26.1% or R46.6 million of the budgets, including the following:
–Auditor-General (AG) fees amounting to R3 million and the remainder were to cover other audit and finance systems related costs.
–Office rentals and municipal charges amounted to 50.4% or R23.5 million of the money. The remainder of the budget covered motor vehicles, telephone, video-conferencing, inventories and other admin costs.
-Personnel and corporate services related committed costs amount to 98.1% or R175.3 million of the budget.
[Because of an unclear PMG audio, the next section of questions by MPs is a summary based on notes]
Mr Mpumlwana talked to farm labourers not accessing government resources such as social grants, health access, etc. and National Treasury assistance in terms of SAHRC’s budget.
Adv Breytenbach talked to the case management system and progress on centralisation of Commissioners. She said the CEO referred to a ‘clean audit’ while the AG’s findings showed regression. On consequence management, she asked why compliance was not adequately monitored and why goods and services were procured without quotations and she asked for confirmation that Commissioners have signed declarations of interests that are accessible to the public.
Mr Horn referred to the implementation of the Commission’s recommendations. It must be frustrating to the Commission and it seemed like a recurring theme every year. Part of the struggle of the Commissions was that government departments, entities and local government did not adequately respond to recommendations made by SAHRC. In terms of basic services such as water and sanitation, he asked if that has changed in any way. If the Free State province was considered, it would seem not, because the SAHRC made specific recommendations on the failures of local government in the province to adequately provide clean water and sanitation. If these departments are still unresponsive, something different must be done to enforce the recommendations. In the past the Commission has indicated that litigation was a last resort, but if things remained unchanged, he asked when the Commission would be moving on to the next phase of enforcement.
Adv Swart said issues relating to compliance with PAIA were of great concern and there needed to be engagement at a later stage with the Commission and the Information Regulator. He too referred to the non-compliance of government departments and entities to the findings of the Commission and the Kader Asmal report specifically. The Committee has already recommended for additional funds in its previous report and he asked for clarity on the Commission’s engagement with Treasury. He suggested that perhaps it was time to consider approaching the Appropriations Committee.
Mr Maila (ANC) talked the AG findings and the change in targets.
Ms F Muthambi (ANC) also referred the audit report and the issues raised by the AG, i.e. fruitless and wasteful expenditure and consequence management.
The Acting Chairperson announced that the meeting venue had been pre-booked for another event to start at 12h00 and the meeting would resume in another avenue.
The meeting resumed:
Adv Gaum said he has also picked up that there is a tendency to use the terms ‘clean audit’ and unqualified audit’ interchangeable and obviously there was a difference, but it was an unqualified audit. There have been budget cuts across all departments, including the Commission and there was only R3 million-odd left for operations, because of the budget situation. For this year, because it was that serious, staff cuts will have to be looked at and the proposal by Adv Swart needed to be considered seriously. It was not just a matter of asking for more money, but there are serious implications and it becomes very difficult to exercise the Commission’s mandate. The Constitutional Court has decided in 1999 already that Chapter 9 institutions’ budgetsmust be reasonably appropriate to exercise their mandates and he asked for the Committee’s assistance in that regard. This has been brought to the attention of Treasury at the highest level and the Director-General of the Office of the Presidency.
On implementation of recommendations, he said the Commission has taken a pertinent decision to concentrate on implementation of the recommendations. It was an important shift that has been formally decided that, in view of the Nkandla judgment and the Public Protector’s findings that were determined to be binding; the Commission has started looking into whether past recommendations and directives have been implemented. The question would then be if the Commission can approach a court of law to see if those directives can be turned into an order of the court. On centralisation of the Commission, he responded to Adv Breytenbach by saying, that with the budget cuts and budgetary constraints, the Commission will consider using its resources, human and otherwise, where they are, because there simply was no budget. The only person flown in for this meeting was the CEO.
Ms Jana said she was just as concerned about some human rights issues, especially in the outlying areas. She said on a recent visit to the Karoo area she found, to her dismay, that children had to walk more than 10km to school. It was not only about providing schools – it was also about providing access to schools; and transport to get the children to schools. She said she also visited the farms where the living conditions of farm workers on some farms were absolutely horrific. These are the things the Commission needed to focus on. These issues are visible in the cities and easy to monitor, but not so in the outlying areas. There seemed to be a lot of focus on human rights in terms of political and civil terms, but it also included socio-economic rights. The Commission needed to reinterpret the definition of human rights to make sure people are afforded their fundamental human rights.
Mr Andrew Nissen, Commissioner, SAHRC, on whether recommendations are taken seriously, he said it can be litigated, but there also needed to be a fundamental shift in the thinking by government departments in taking Chapter 9 institutions and their recommendations seriously. On farm evictions, he said the Commission was working with the Department of Rural Development and Land Reform (DRDLR), in the Western Cape in particular, through workshops and seminars around how the Commission can not only assist, but also prevent farm evictions. There has been a request to the President for a moratorium on farm evictions. There are very good farm and land owners that take good care of their farm workers and employees in a good and quality environment. However, there a still a lot of these issues raised on how those farm workers can be assisted, in particular on the traumatic aftermath of a farm eviction. The Commission has been very much involved with other stakeholders on farm evictions and it was an ongoing work in progress. On some of the farms where people just live and not work, some municipalities do not provide the necessary water and sanitation, because it was deemed as private land and municipalities did not provide services on private land.
Adv Thipanyane said he rejoined the SAHRC in June last year and on his desk was an award from the AG for an unqualified audit opinion that the Commission has held for the last four years. He said one of his commitments was that the trend continued and there will be another award this year. On page 41 of the report, the AG did highlight that there was fruitless and wasteful expenditure to the value of R3 880 (related to a changed flight) down from R59 000 compared to the previous financial year. The audit committee made sure that findings were not repeated. The Commission will continue to address the findings and an action plan was in place it was not repeated.
On PAIA and the non-response from many bodies, he said when he joined the Commission last year; almost 200 municipalities have not complied with PAIA. On national level, only 60% of departments complied while municipalities are also low. Only three Chapter 9 and 10 institutions have responded. He said he personally met with the DG in the Presidency and raised concerns about the level of non-compliance; and asked the Presidency to impress upon Cabinet Ministers that they needed to ensure that their departments complied. The Commission did not have enforcement provisions under PAIA and it was a flaw in the Act. On the changing targets, he said one of the targets he found stated that ‘the Commission will deal with 85% of complaints from the public’. The problem with that target was that it was open-ended, because if there were 10 000 complaints, the target will not be achieved and he suggested that the annual capacity of the Commission needed to be determined and to plan from there. The second target was where the Commission got zero for research briefs. A target was to write the briefs and those briefs will be disseminated. Unfortunately, it was also included in the target that the briefs will be sent to Parliament and although the briefs were written and disseminated, it was not sent to Parliament and the target was deemed not to have been achieved.
On the case management system, Adv Thipanyane responded and said a new system has been introduced and the Commission has an MOU with the Commission for Conciliation, Mediation and Arbitration (CCMA) to see if the Commission cannot use their system. The CCMA has spent over R24 million on their system and although it was a little too expensive for SAHRC to convert to, there are discussions in the forum to see if there can be a common case management system. Staff members are currently being trained on the new system and it will hopefully produce much better results. The long term plan however was to have a common system for organisations that receive complaints from the public such as the SAHRC and the Office of the Public Protector.
Mr Maila asked for comment on the irregular expenditure. The Commission has fulltime and part-time Commissioners and he asked what the set-up was. Where are they based?
Adv Breytenbach said in terms of section 16 of the Act, SAHRC did have powers to search persons and properties. If people are refusing access to the Commission, she asked if SAHRC has ever considered using that section.
Ms Muthambi said in the previous year there was no irregular expenditure, but this year there was an amount of R214 000 and she asked for a clarification.
Adv Thipanyane replied that the Commission did not have a contract for the Commissioners’ travelling and it was recorded on a month-to-month basis. The AG found that that to be irregular and subsequently the Commission have signed a contract with an established travelling agency. No losses have been incurred. Section 16 has never been used. For SAHRC to get a subpoena, the Act provided that the Commission must get the consent of the National Prosecuting Authority (NPA). This was an irregularity that has been raised with the Minister of Justice and the Commission was looking into having the Act amended.
Mr Nissen said the Commission was planning to approach the Committee, through the Minister, with a number of recommendations for mending legislation. On the declarations of interests, he confirmed that all Commissioners have signed and he added that every Commissioner signed a declaration of interest at the start of every meeting.
Ms Jana confirmed that she has made arrangements to relocate to Johannesburg in January 2019.
SAHRC was released.
Information Regulator (IR)
Adv Pansy Tlakula, Chairperson, IR, gave a foreword and admitted that the establishment of the Regulator has not progressed as swiftly as Members anticipated. She talked to the importance of the Regulator and mentioned that South Africa was experiencing an unprecedented number of data breaches the Regulator was unable to deal with effectively.
She gave an overview of the achievements against planned targets and talked extensively on data breaches; litigation; stakeholder engagement; transfer of PAIA functions; the Independent Electoral Commission (IEC); the National Consumer Commission; and direct marketing.
The Acting CEO started with the service delivery model (SDM) that was developed and said the Regulator aligned the SDM to the strategic plan and key outputs were revised in line with the available human capacity. He talked to the approved recruitment positions, the business process design, accommodation and the AFS. The Regulator did not produce AFS for 2017/18 and accounted for the use of its allocated budget of R24 million through an expenditure report which was compiled by the Department of Justice. The Regulator also did not spend its entire budget due to delays in the establishment of its administration.
Adv Swart said it was a concern that there still seemed to be a problem with the establishment of the Regulator. The sections were proclaimed on 11 April 2014; the members were only appointed on 1 December 2016 and in May Members were informed of some challenges with the appointments. That was the first step that needed to take place. In May the Committee indicated its frustration that the organisational structure was taking so long to be resolved and urged the ministry to assist. He referred to slide 22 (see attached) and the organisational structure indicator. He asked what the current status was. He also asked for an explanation on why consultations with the Minister of Finance and the filling of priority positions were delayed as per the indicator; where the blame was and what could be done to assist. Have you had joint discussions with the Minister of Finance, Justice and yourself? On PAIA, he said this Parliament was coming to an end and the Committee should have a separate meeting with SAHRC and IR to discuss how the seamless transition and takeover will take place. Until IR had their staff in place they will not be able to do the work. SAHRC was already struggling to do the work. Presumably this would have to form part of the Committee’s legacy report if a joint meeting cannot be fit in. POPIA was a very important Act and PAIA was just as important for access of information.
Mr Horn said in terms of previous briefings, setting up of the administration really hinged on the uncertainty of who the accounting officer of the Regulator will be. In terms of the PFMA and the Public Services Commission (PSC) it would be the CEO or alternatively, the board. His take away was that there was a difference in opinion and he asked if that has been settled and if the initial insistence by IR that it should be the board can be blamed for the delay in the set up of operations. In December it will be two years and at the time of appointment the Committee had been assured that it will be done in 12 months. The risk and danger to society and democracy if the IR was not operational by next year’s election was great. He mentioned how the Russians has been able to manipulate election results on the back of data breaches. It has been reported that IR made enquiries to Cambridge Analytica when the Facebook breaches occurred. He asked if anything tangible came from those enquiries and if there was any real plan between IR and the IEC to prevent the manipulation of the election.
Adv Breytenbach asked for an update on complaint handling and the POPIA draft regulations and she also wanted to know if the staff complement was made up entirely the Department of Justice employees. She asked if some of the delay was due to IR’s insistence to be categorised as a constitutional body.
The Acting Chairperson asked for the exact time lines on the draft regulations and the set up of the administration. She asked if there had been any negotiating with the Department of Public Works (DPW) on office space.
Mr Maila asked on the demographics of complainants, i.e. whether the majority are from rural areas.
Adv Tlakula responded and reminded Members that after the last briefing, IR responded to Members in writing in a comprehensive document sent to the Committee.
Adv Breytenbach said she has never seen the responses.
The Committee Secretary responded that the responses have been sent to all Members.
Adv Tlkula said she mentioned it, because it answered most of the questions Members asked today. On the establishment, she said the Act said the Minister of Finance must be consulted, but because of the change in leadership that was delayed. Eventually, IR got to meet with Minister Nene in May with the help of the Deputy Minister of Justice. The Minister gave his provisional approval for the top layer and asked that IR come back for the other positions. The Finance Minister has since changed again and she mentioned that this process it actually started with Minister Gordhan. If things go according to plan, the senior positions will be advertised for before the end of October. It will be good to have the top management and senior people in place before other appointments. Other then the delegation present, the IR was assisted by two administrative support staff members. All work was done by the full-time and part-time members, because a solid foundation must be laid for the regulations. On the categorising, she said the Regulator’s position was IR cannot be listed as a national public entity, because those entities have boards as accounting authorities while the Act named the CEO as the accounting authority and the Act must be effected. It was agreed with the then Minister of Finance to separate the listing of the Regulator from the establishment of the administration.
The Acting CEO said IR has five members and five administrative support staff members (not two). All the positions the Minister of Finance has approved have been job evaluated and the adverts should be in newspapers by next weekend. On DPW, there had been an engagement with DPW at the start of this calendar year and they have been working on the needs of IR, but they have indicated that they will not be able to deliver before the end of December this year and the move was estimated to happen in the first week of January.
On the accommodation, Adv Tlakula added a conscious decision was made to go to a sister organisation and they will be sharing office space with SAHRC.
Adv Collen Weapond, Member, IR, referred to the data breach and Cambridge Analytica and he said an interim report was issued in July by the Information Commissioner’s Office (ICO) itemising how far they were on the investigations. IR wrote to Facebook South Africa and was referred to Ireland. The report only covered Canada and America that needed to action certain breach concerns. After reading the report IR wrote to Facebook Ireland and asked why South African Facebook users were not discussed in the ICO report and was awaiting a response. IR was in contact with the ICO to get to the bottom of the concerns regarding the breach that affected more than 95 000 Facebook users.
Adv Tlakula said the issues that were raised with the IEC were the processing of personal information on the voters’ roll and the security measures against manipulation. The third issue dealt with direct marketing by political parties and there have already been complaints. The issue was whether it was prohibited in terms of the Act. It was still being analysed and the preliminary view was that sending an SMS to a voter did not constitute direct marketing of goods and services, but people cannot be send messages to solicit donations of any kind, whether direct or indirect. Once a clear position on this matter has been formulated all affected forums will be informed.
Prof Tana Pistorius, Part-time Member, IR, said she cannot remember ever getting a complaint or enquiries from the rural areas. At the end of last year there were 258 files and current the Regulator was on 158 files – both for enquiries and complaints with a separate file for breaches. The Regulator had intensive consultations with the Banking Association of South Africa (BASA) and all bank-related complaints have been collated. Banking complaints are the biggest component at the Regulator, followed by the estate agency sector and direct marketing.
Adv Weapond said there was a public awareness roll-out plan, but it can be argued that the Black Sash vs the Minister of Social Development case represented the rural constituency
Adv Legogang Stroom-Nzama said the final draft regulations have been sent to the Office of the State Law Adviser for translation into other languages. This will be finalised by the end of October.
Adv Tlakula said even if the regulations are tabled it cannot come into effect before the Act.
Adv Swart referred to the direct marketing of political parties; he asked how, if the Act is not operational, that would be enforced.
Adv Tlakula said the Regulator promoted proactive compliance by engaging, because when the Act comes into operations, people are prepared.
The meeting was adjourned.
- South African Human Rights Commission 2017/18 Annual Report presentation
- Information Regulator 2017/18 Annual Report presentation
- Public Protector South Africa 2017/18 Annual Report presentation
- Deputy Minister of Justice and Constitutional Development, Mr Deputy Minister of Justice and Constitutional Development, the Hon J Jeffery speech
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