Sheriffs Board on its 2017/18 Annual Report

Meeting report

South African Board for Sheriffs (SABFS) 2017/18 Annual Report
Mr Meko Magida, SABFS Deputy Chairperson, said that the core business of the SABFS is to transform the sheriffs' profession and the SA Board for Sheriffs and to bring it in line with constitutional imperatives; review relevant legislation such as the Sheriffs Act 90 of 1986, and if necessary lobby for reform in a manner which protects the interests of the sheriffs' profession and  stakeholders; communicate effectively with stakeholders and sheriffs; discipline sheriffs; monitor the conduct of sheriffs; promote professionalism; set standards for training and set up training programmes; and formulate policy directives.

Mr Magida said that the strategic objectives for its five programmes:
Programme 1: Compliance
Programme 2: Fidelity Fund
Programme 3: Sustainability of the sheriffs' profession
Programme 4: Enhancing the sheriffs' profession
Programme 5: Governance and corporate support services

Mr Magida said its Risk and Audit Committee is extremely pleased with the unqualified audit opinion on both the SABFS and the Fidelity Fund financial statements for 2017/18.

In terms of programme 1: Compliance, desktop inspections were conducted and the rate of non-compliance is very high. This is mainly as a result of sheriffs' non-compliance with legal obligations to the Board. 18 physical inspections were conducted. Charges against sheriffs are initiated once the Board is satisfied that there is a prima facie case of misconduct. As at February 2018, charges have been brought against 14 sheriffs. The total number of complaints filed, including desktop audits amounted to 96. Disciplinary hearings could emanate from formal complaints against the sheriff via their Fraud Hotline or for non-compliance with legal obligations as prescribed in the Sheriffs Act, or from desktop investigations which are conducted in-house. The total value of fines imposed was R320 500. Five criminal actions for period have been brought against sheriffs although one sheriff has since passed away. Civil action against sheriffs instituted by SABFS numbered three finalised and two are still pending.

On programme 2: Fidelity Fund, the value of the Fidelity Fund increased by 7.67% over the financial period. The Fund is now valued at R140.4 million (2016/17: R130.4 million). Interest earned on investments was R10.7 million (2016/17: R10.2 million). The Board received 84 new claims during the period and approved claims to the value of R6.2 million. Over the last 6 years the total claims paid were R16.2 million; 85% were paid directly from the Fidelity Fund (self-insurance) and 15% were recovered from Fidelity Insurance.

On programme 3: Sustainability of the Sheriffs’ profession, the introduction of Section 22(5) of the Sheriffs Act (90 of 1986) and Rules 43 and 46 changes, have possible risks attached to it - mainly because of the reduction of interest paid to the Fidelity Fund by sheriffs and the reduction of gross income of sheriffs.

In terms of income revenue the SABFS does not receive any funding from the Department of Justice and Constitutional Development (DJ&CD). Revenue is generated from the sheriff's profession via a 1.5% levy on the gross income of sheriffs. Further to the levy, an administration fee is received from the Fidelity Fund and from other smaller revenue generating services. Levy payments and administrative fees were the main sources of funding for the South African Board for Sheriffs.

The total revenue collected was R19.3 million (2016/17: R19.1 million). Operating expenditure increased from the previous period to R17.3 million (2016/17: R15.02 million). This resulted in a surplus of R3.1 million (2016/17: R4.7 million). In terms of the Unclaimed Trust Money the intention of SABFS and DoJ&CD is to utilise this unclaimed trust money to the benefit of the public who utilise the services of the Small Claims Court. The public will be spared the costs of the enforcement of the writ of execution by the sheriff, who will receive payment from SABFS.

On programme 4: Enhancing the sheriffs’ profession, the Tenth World Sheriffs' Day was celebrated on 08 June 2017 and was devoted to "the information of the litigant". The aim is to assist the public to understand the role of the sheriff when explaining the intention of the litigant. SABFS launched a 6-week radio campaign to celebrate World Sheriffs Day. The campaign was aired on 4 different SABC radio stations, which included: uKhozi FM, uMhlobo Wenene FM, LESEDI FM and Metro FM.

Mr Magida said with regards to Needs Based Training 2017, a body of knowledge has been developed, specifically regarding; The CCMA process, Right, Title and Interest, Ambiguous court orders and the administration of Trust and Business Accounts. 383 participants attended the training, compared to 264 in 2016. The Board spent R471 803 for this activity.

In terms of the Sheriff's Introductory Course 2017, the Skills Programme (Sheriffs' Introductory Course NQF Level 4), is pitched at matric level and used to induct all newly appointed sheriffs. The Board budgeted R362 000 for this activity. The project is funded by the SABFS but quality assured and certified by the SASSETA. Since Justice College is the accredited training provider, SABFS partners with the college and provides facilitators, assessors and moderators for them to contract.

With regard to Rules 43 and 46 one training session was arranged in each province, except for the Eastern Cape where two sessions were required in different cities to ensure accessibility to this new information. The Board spent R271 341 for this activity.

Programme 5: Governance and corporate services, operates as four divisions, each with a clear line of authority and reporting. These four divisions in turn support the Board to carry out its functions. Employee cost for the period amounted to R9.22m (2016/17: R8.94m). The Board approved a 7.6% increase for staff and 6.2% for management, in March 2017. SABFS prepare individual learning plans for each staff member guided by the requirements of their position, and the development needs of the staff member.

Mr Magida concluded by explaining the financial information. In a Board meeting held on the 15 October 2015, the Board resolved that the SABFS would no longer seek listing in terms of the PFMA schedules as required by Section 47(2) of the PFMA. The Board has resolved that it will adopt and implement the principles of the PFMA into its policies where it is economical and practical to do so.

Discussion
The Chairperson commended the three-year clean audit opinion.

Mr W Horn (DA) welcomed the presentation from SABFS. He asked whether it is true that before a person is appointed as a sheriff he/she has to complete the NQF training which is equivalent to matric or grade 12. And if that is so, there was a reference to the ever changing law and the needs based assessment but it seems this is voluntarily. If this is the case, is the Board following what other professions are employing by strengthening standards or forced continued development in order for a sheriff to maintain the standards so that on an annual basis that sheriff go for training on whatever has changed in law.

Mr Horn referred to the Fidelity Fund report as the slide stated that R21.6m was paid out. Whilst in the next paragraph they are informed that over the last 6 years only R16m was paid out. If  R21.6m was paid out, that was not self-sustaining. Is it this going to be the trend going forward and what measures have been put in place? For example, in the case of attorneys there is a limitation on what should be paid out on behalf of a specific firm from the Fidelity Fund and there a concurrent responsibility from such a firm to take out private insurance to pay for the shortfall or gap in respect of claims.

He also asked for clarity as to whether the claims that could be lodged with the Fidelity Fund are similar to those in the attorneys’ profession, when sheriffs steal from those whose money they were keeping in trust, and whether that involves claims from negligent or abusive actions. And if not, is there a duty on sheriffs in order to maintain their status as registered sheriffs to have that private insurance for other claims?

Mr Horn asked to be updated as to the involvement of other entities than the sheriff alone in terms of evictions because all over the country they see law enforcement officials like metro police doing evictions in newly erected shacks in areas that are not approved for informal settlements, is that allowed or is there a special dispensation like the red ants for example, do they have to be accredited by the sheriff or is there co-operation in place with the red ants?

Mr T Malaudzi (EFF) welcomed the presentation and applauded the unqualified audit opinion received by SABFS. He asked for clarity with regard to the Sheriffs Act 90 of 1986, which according to him is an old act and whether there is an appetite to review this legislation because legislation is a living document which needs to be revisited from time to time.

Mr Malaudzi asked why expenditure shot up from R15.2m to R17.3m in one year, what the cause was of this expenditure, what extra-ordinary things were happening within the Board because if they looked in detail at the main document they can see that in communication and education it was R105 000 during 2016/17, and in 2017/18 it parachuted to R329 000. Consulting fees were R171 000 and this parachuted to R467 000 over the same period. DC and inspections was R45 000 and this shot to R271 000 in the same period. Legal fees were R220 000 and this shot to R566 000 in the same period. What exactly is happening in the Board?

Mr Malaudzi said that page 44 of the main document reflects the organogram and there is no transformation in the top management of SABFS. He asked what the plan is for Board to transform the organisation and when are they going to fill the vacant posts. There is also no transformation in the registration of deputy sheriffs because in slide 14 it indicates that there is 322 whites, 269 blacks, 42 Indians and 92 Coloureds.

Mr Malaudzi asked for clarity on whether claims that are lodged with the fidelity fund are like those that are kept in the trust account of attorneys.

Mr Malaudzi asked for an explanation on the term of office for Chairperson of the Board because the current Chairperson has been there for more than 10 years.

Mr Malaudzi asked for the breakdown of expenses in terms of fines on slide 11 of the presentation. Also on slide 16 on the fidelity fund there is confusion in the figures on that slide.

Mr Malaudzi asked why they only targeted 4 radio stations in their six week radio campaign, what criteria did they use for the selection of the 4 radio stations, and why was no radio station selected in Limpopo where he comes from.

The Chairperson said in terms of the Act and transformation, gender is a very serious matter. The Sheriffs Act that establishes the SABFS is not in conformity with the Constitution, it needs to be relooked at.

The Chairperson asked for clarity about the rationalisation of the magisterial districts.

The Chairperson asked what the Board is doing in terms of the code of conduct and ethical standards at SABFS. What are they doing to support the newly appointed sheriffs?

Mr Malaudzi asked why in some areas the serving of maintenance orders is outsourced to the sheriffs but in other areas the service is done by maintenance officers. There is a pile of cases where children are not supported, what are they doing to enforce the uniformity of maintenance orders in magistrates’ courts?

Mr Magida responded that Adv Mohamed will deal with the questions on how they operate, legislation, the Board and transformation. Mr Simon will respond to questions on financial expenditure.

Adv Hishaam Mohamed, SABFS Deputy Chairperson and chairperson of the Human Resources Board Committee, replied on stakeholder cohesion when it comes to evictions.  SABFS has developed a protocol which has not been formalised yet – it is something they are discussing. What they have given guidance to is that evictions have been inconsistently applied and they are hoping for it to be regulated by the Minister of Justice. The protocol states that no eviction can be executed when there is no court order that compels that eviction. The sheriff executing an eviction has to call the police for them to monitor and observe. A local authority has to be involved, a civic or community leader has to be involved and be told or consulted about where this eviction court order has to be executed. They are in a process of launching the guideline together with the Minister of Justice.

Ms Mathotho Lephadi, Sheriff and Chairperson of the Fidelity Fund, said there is another dimension with regards to evictions because other evictions are done by municipalities without a court order instructing a sheriff to execute the eviction. In most instances it is those evictions where they find things do not go in the right direction, especially mass evictions.

Adv Mohamed gave the example of Somerset West where an eviction took place. A commission of enquiry was conducted and found that the sheriff erred by misreading the order which was an eviction for newcomers but the sheriff instead evicted everybody even those who had been there for years. So, the Sheriffs’ Board assisted in that matter.

Adv Mohamed replied that Mr Malaudzi is correct that they have an old 1986 Act and the Committee would have noticed that several times the Minister of Justice came and asked for amendments. The Minister has a task team to look at the Act and the progress has been made. The Board has been asked to give substantial inputs for the new Act. This process will be spearheaded by the Minister of Justice. The Board has given its input and they are waiting eagerly for the Minister of Justice to table the new legislation.

Adv Mohamed replied that they agree 100% on transformation and it should be noted that the Minister of Justice is the authority in the appointment of sheriffs, not the Sheriffs’ Board. The Board has only a small or rather a technical role where they must confirm in terms of the Sheriffs’ Act whether the recruited intended appointees would be grant a fidelity fund certificate by the Board based on their status. This is the only comment the Board makes when the Minister is about to appoint them. The Board then gives its comment and the Minister does the rest including recruitment through provincial advisory committees.

Adv Mohamed replied that he is directly involved nationally with the Minister in recruitment and it has been a pain. When they advertise, their main target is recruitment of females. There were two rounds of adverts last year and only 10% of applications were females, which prompted the Department of Justice to re-advertise. They have re-advertised and also sent the advert to the entire legal profession and other professions in the country. It is known that one does not need a legal degree to become a sheriff. It is only matric and any other tertiary certificate. So, the targeting has been very deliberate and it has been set up by the Minister for black females in particular. Quite significantly, the number has increased in the last two years for sheriffs, but when it came to deputy sheriffs the picture is even worse. Deputy sheriffs are appointed by sheriffs. The Minister has no say in that process. Therefore, what the Minister is asking in the new Act is to regulate even deputy sheriffs so that there is full jurisdiction over deputies to enable the norms and standards applicable to sheriffs are also applicable to deputies.

The only reference in the Act is where the Board has to confirm after the appointment. The Board has to oversee the code of conduct over deputies but not their appointment. The relationship between the sheriff and the deputy is contractual because the deputy will serve during the term of the sheriff. If the sheriff leaves the term of the deputy ends as well. With the intervention of Deputy Minister John Jeffrey, the Board will start training deputy sheriffs, not only sheriffs. Secondly, they will focus more on the code of conduct in particular with the deputy sheriffs.

Adv Mohamed replied about the term of office of the board chairperson that again it is the Minister of Justice who appoints, not the Board. This is the third term of the board chairperson, Ms Mabuza. It should be put on record that she declined the last time but the Minister persisted that she stay on to finish this term because of the fidelity fund. When looking at the current board there are very few of them who served on the previous board because the half of the current board members is new.

Adv Mohamed replied about maintenance orders that the maintenance investigator has the power through the Act to serve maintenance documents. But the Department of Justice has not finalised its policy directive for consistency purposes, it is still working on that. In Limpopo their regional head has been quite progressive in ensuring that the maintenance investigators serve the maintenance documents.

Adv Mohamed replied that on the code of conduct that the Minister launched the code of conduct two years ago and the Deputy Minister focuses particularly on this issue. The Board also gets complaints from the public and the profession and it has to investigate those complaints. They also have radio programmes where they give advice and guidance on such matters.

Adv Mohamed replied about the rationalisation of the magisterial district bars. In terms of the role of the Board, DOJ Court Services is the lead agent because this is a policy matter. For the past five years they have been signing MOUs and they are going to sign a new one for the final stretch. This is a way for the Board to give support to DoJ to mobilise the sheriffs to participate in Regional Control Committees (RCCs) in the provinces. The Board ensures the sheriffs’ interests by attending the RCCs that looked at the demarcation amendments. The demarcation is in line with a Cabinet decision to harmonise the boundaries with local government. Secondly they must insure that all services are within one district. Thirdly, they should transform a district where there is overlapping in particular.

Adv Mohamed replied to the question on the organogram of the Sheriffs’ Board. As the chairperson of the HR Board Committee that was appointed in March they are busy looking at organisational redevelopment, in fact just last week they have approved capacity that is within their means. All these vacant posts are already advertised and they are busy with interviews. Secondly, there are clear transformation targets to fill those vacancies. Their structure is very small as can be seen at top management level. But notwithstanding that there is another top management vacancy at HR, which has been approved by the Board so as to ensure they are complying with the target. Page 46 of the Annual Report it lists the total SABFS staff complement and the race breakdown is: Africans = 12; Coloureds = 16; Indian = 1; White = 1.

But he knows that Mr Malaudzi was referring to the top management structure in particular. They have an opportunity in that the Executive Manager position has been advertised twice. However, they were not successful in filling that position. They are now busy with the third attempt to advertise that Executive Manager position which is also known as the CEO of the Board and they are in the process of filling that position as the acting CEO position will end 31 January 2019. Obviously, in their case they have a clear transformation target.

Adv Mohamed spoke about limitations as to why they were unsuccessful in the previous rounds. People do not want to relocate to Cape Town. There is this old historical apartheid reason why the Board’s office is in Cape Town, which has been inherited. They are thinking of changing the office to another place in future. The second reason is that the salary scales of the Board are very low compared to other boards in the civil service. Their director’s salary is actually a deputy director’s salary when compared to the rest of the civil service. They have managed to increase the salary of the Executive Manager to R1.4m per annum so as to ensure they get a proper person in that position.

Mr A Simon, General Manager, Corporate and Financial Services: SABFS, replied to Mr Horn’s question on whether the fidelity fund can be sustained if the claims are more than the revenue of the organisation, saying that there was an error on slide 16. The “approved claims to the value of R21.6m” should come out. He can refer the Committee to the annual financial statements on page 28 of the Annual Report where the table at the bottom correctly states that the 2017/18 claims process received 84 claims and the total value of claims received is R21.6m but the actual amount that was approved was only R6.2m and not R21.6m. Based on that the board and the fidelity fund are sustainable.

Mr Simon replied that detailed information on the breakdown of expenses will be provided in writing. They have a list of fines and that will also be part of the written response to the Committee.

The Acting Chairperson said that they will give SABFS 14 days or sooner to respond to those questions. She thanked the delegation and adjourned the meeting.