The Office of the Chief Justice (OCJ) and Information Regulator (Regulator) presented an overview of their annual reports for the past financial year.
The OCJ said it supported the judiciary in its contribution to Chapter 14 of the National Development Plan (NDP), in promoting accountability and fighting corruption through strengthening judicial governance and the rule of law. It had achieved an unqualified audit opinion with no material findings for the 2018/19 financial year. The Committee was given comprehensive details of the OCJ’s performance targets and achievements in its various programmes and sub-programmes.
Members asked what progress had been made with moves towards a single judiciary, as for practical purposes the magistracy still sat with the Department of Justice (DOJ). They asked about the process involved in appointing permanent judges, and questioned the over-expenditure resulting from the large number of judges in acting positions. They emphasised the need for judicial wellness programmes to help judges and magistrates to cope with the daily stress involved in dealing with disturbing court cases. They were also concerned at the high turnover of staff, and the abuse of the sick leave facility, particularly by senior management personnel.
The Information Regulator provided an overview of the progress being made in the early stages of its establishment. Its strategic-oriented goals included ensuring that South Africans were aware and understood their rights with regard to the protection of personal information, and developing and implementing awareness and educational programmes to promote this. However, it had not been able to achieve many of its targets. The key challenges were delays in the finalisation of the top structure of the Regulator; inadequate administrative support to assist in the filling of the key advertised positions, and a lack of staff to develop the identified strategies and plans.
Members raised questions about the Regulator’s planning and budgeting, and agreed there was a need to apply pressure to obtain the funding necessary for the entity to fulfil its important mandate. A comment was made that it looked as if the Regulator was the most destitute institute, so the Committee had to help them.
Office of the Chief Justice (OCJ) Annual Report
Mr Itumeleng Malao, Chief Director: Strategic Planning and Reporting, OCJ, presented an overview of the OCJ annual report for the 2018/19 financial year, and highlighted its major performance achievements. Mr Casper Coetzer, Chief Financial Officer (CFO), OCJ, presented a summary of its financial performance.
The OCJ’s mandate was to support the Chief Justice in executing administrative and judicial powers and duties as Head of the Judiciary and Head of the Constitutional Court. The OCJ supported the judiciary in its contribution to Chapter 14 of the National Development Plan (NDP), in promoting accountability and fighting corruption through strengthening judicial governance and the rule of law. It also contributed to Chapter 13 of the NDP through implementing the strategic objectives of the Department in building a capable state.
Strategic Objective 1 was to capacitate the OCJ, and Strategic Objective 2 was to ensure good governance in the administration of the Department. The contribution to the medium term strategic framework (MTSF) was in response to: Outcome 3 – all people in South Africa were and feel safe; sub-Outcome 2 – an efficient and effective criminal justice system; and Outcome 12 – an efficient, effective development orientated public service. The Strategic Outcomes-Orientated Goals were the efficient and effective administration of the OCJ; improved administrative and technical support to the judiciary; and ensuring administration support to the superior courts.
In terms of the overall performance for 2018/19, the OCJ had 20 targets, of which 18 were achieved. In programme 1: Administration, eight out of 10 targets were achieved. In programme 2: Superior Courts Services, all six targets were achieved. In programme 3: Judicial Education and Support, all four targets were achieved. The OCJ thus achieved 90% of its overall targets.
A comparative analysis for the overall performance from 2015/16 to 2018/19 was provided next. In 2015/16, the OCJ achieved 26 out of 35 targets (74%). In 2016/17 it achieved 17 out of 20 targets (90%). In 2017/18, it achieved all 19 targets (100%), and in 2018/19 it achieved 18 out of 20 targets (90%).
The performance overview was provided next. The OCJ achieved an unqualified audit opinion with no material findings for the 2018/19 financial year. The key achievements included:
- Unqualified audit outcome with no material findings;
- Vacancy rate of 7.2% below the 10% target set by the Department of Public Service and Administration (DPSA);
- OCJ supported the Chief Justice in the planning phase for the execution of his constitutional responsibilities in the establishment of the sixth Parliament;
- Reviewed the Combined Assurance Framework in consultation with the Audit, Risk and Compliance Committee (ARC); and
- 142 skills-enhancing judicial education courses conducted for judicial officers and aspiring judicial officers against a target of 78. The budget programme structure was divided amongst the three aforementioned programmes.
The Committee was given comprehensive details of the OCJ’s performance targets and achievements in its various programmes and sub-programmes (See attached document).
The AGSA audit coverage scope and 2018/19 outcomes were presented next. The focus areas for the 2018/19 annual audit were presented with the 2017/18 comparative audit outcomes. The OCJ reported that in both years, no material misstatements had been identified in the annual financial statements (AFS), and there had been no material findings on the usefulness and reliability of the reported performance information in the annual performance report (APR). Regarding compliance with legislation, no material non-compliance with key legislation during both years had been identified.
In 2016/17, the OCJ had achieved an unqualified report with findings, whereas from 2017 to 2019 it had achieved a clean audit. The risk areas were supply chain management (SCM) and information technology (IT). The internal controls focused on leadership, financial and performance management, and governance. Leadership and governance had performed well. Financial and performance management had performed well, except for compliance monitoring and IT system controls.
A summary of the financial performance was subsequently provided for the 2018/19 financial year. The final appropriation per programme was:
- Administration: R223.8 million – actual expenditure was R222.1 million (under-expenditure of 0.8%);
- Superior Courts Services R824.8 million – actual expenditure was R801.5 million (under-expenditure of 2.8%); and
- Judicial Education and Support R71.2 million – actual expenditure was R68.4 million (under-expenditure of 3.9%).
The final appropriation for direct charges was R1.022 billion, which was almost exactly matched by the actual expenditure. Overall, the total budget was R2.142 billion, of which R2.114 billion was spent (under-expenditure of 1.3%). On the expenditure per economic classification, the actual expenditure for compensation of employees was R1.619 billion against a budget of R1.644 billion, while expenditure on goods and services was R266.3 million against a budget of R269 million. Transfers and subsidies exactly matched the R160.5 million budget.
The Chairperson covered a few general points before allowing Members to ask questions. On financial expenditure and the appointment of acting judges against the Treasury-created mechanism, he asked if these appointments were done response to vacancies. If not, were the additional expected term appointments identified beforehand, or was it done as the need arose? Under performance programmes, the taxation for legal costs had been really good. Were the Registrars issued with formal professional certificates to do taxation at all the high courts? Lower courts would also be looked at in this regard to see how far this was.
On the performance areas, the appeals and reviews as to the performance of the Chief Justice’s report was noted. Many of the performance indicators were administration-related areas which generally fell under both courts. Did the appeals and reviews, which would be a public interest matter, not fall under this? Had the OCJ considered whether it could be a possible indicator, given its public importance and the fundamental rights contained in such processes? When appeals and reviews went wrong in criminal courts, peoples’ freedoms were affected.
The OCJ was congratulated on the percentage of J1 release warrants reported. While this was something to get excited about, something to think about was how many wrongful releases there were. However, this was a report for another day.
On performance in relation to the efficiency enhancement process -- in terms of reserved judgments and the impact on the administration of justice -- was this also considered under performance as an area where an indicator could be developed? There were some programmes that the OCJ had reported on in their last presentation. Clarification was needed regarding the e-filing system and progress thereon.
Under important but underrated programmes was the Judicial Wellness programme and support to judiciary. This was an area that was not necessary to prioritise, but in the case of high courts and regional courts it was critical – especially in those cases which judicial officers continuously preside over. For example, there was a regional magistrate who had presided over only rape cases for 15 years. Assistance was required in this regard.
Mr W Horn (DA) thought that was important to congratulate the OCJ on the audit outcomes. The Committee had impressed on them that if the OCJ, in leading the judiciary, was to take to task other entities and state entities in governmental departments for maladministration and failure in respect of clean governance, then they should ensure that there were no fingers pointing back at them. This was the point at which the OCJ and the Committee were now, and this was something to be congratulated.
During the judicial accountability session, the Chief Justice had made mention of a proposal that came to him concerning a donation of around R600 million to ensure the modernisation of the courts. He had rejected this on the basis that this was how capture took place. Did the proposal come via the administration, or was it made directly? Did the OCJ assess whether this proposal or attempt should go to the law enforcement agencies for investigation? The saga left more questions than it necessarily gave answers. Feedback should be given regarding the donor funding from the German Development Corporation, with an assurance as to how it was dealt with in a proper way, details as to whether the pilot was a success and whether there was to be full implementation in the next year or two to come.
There were other issues which still lingered in respect of the OCJ as a Department. The first issue was that of the single judiciary, and whether there had been any progress. It was known that the Chief Justice was the head of the judiciary, but for practical purposes the magistracy still sits with the Department of Justice (DOJ). Could the Committee be appraised as to what progress there had been to unbundle this issue? An old issue was that of the judiciary-led court administration model, which linked to another matter concerning how the judiciary was ultimately to account.
With the current stalemate between the executive and the judiciary regarding the court administration model, the Chief Justice was now seen embarking on public accountability sessions. The reality was that, while this was to be commended as part of a process of being accountable, the Committee still held the view that there was also another view of accountability that was not taking place at this stage but concerned the judiciary accounting to the legislature. This would not be able to take place unless the court administration model was sorted out. Whilst it was known that it was not the OCJ or Committee that was supposed to be finalising this, could an update be given by the Secretary General as to whether there had been any movement in this regard?
The Chairperson commented on Mr Horn’s last point. The Secretary General had responded to the Chief Justice and, as had been communicated to the Committee on 3 October, he was eager and willing to come to the Committee but was waiting to hear from the Committee on this.
Ms N Maseko-Jele (ANC) added her voice in congratulating the OCJ on a job well done, and for the effort they continually put in to ensuring that they set an example. It had been proposed that the Committee visit the high court where the information communication technology (ICT) master systems plan (MSP) that was promised for the modernisation of high courts would be piloted. Could an update be given in terms of the Judicial Services Commission (JSC), particularly the judicial tribunal, with regard to pending, outstanding and finalised cases?
Mr Q Dyantyi (ANC) wanted to ask a number of questions related to the Chief Justice’s activities the previous week, the missing overview of the Chief Justice’s report, and the sections of the accounting officer’s and human resources’ (HR) reports. The OCJ could take notes as long as no questions were missed. He would be referring to the Integrated Annual Report, not the presentation. Regarding the accounting officer’s section, on page 12, what were the sources of revenue? There were a couple of enquiries on page 13, where he had a serious problem with the virement because it related to planning and bad budgeting. The OCJ had a virement of over R22 million during the current financial year. This was a problem, as it mocked budgeting. When there was such a huge virement, it was always as a result of emergency and disaster. There was no disaster in the reporting period for the OCJ to have virement of R22 million from one vote to another, within 12 months, as if they had never anticipated the kind of things that were due. Clarity was sought in relation to this, as it was an issue that should have been picked up.
The Committee had just been told about the overspending on acting judges. There was a sense that there were more acting judges than permanent judges during this reporting period. Was the OCJ in this position? If not, how many acting judges were there in this reporting period compared to permanent judges? This would indicate an issue, if confirmed positive. The OCJ had indicated that the overspending was due to an increase in acting judges being appointed.
On the issue of irregular expenditure on page 14, the Committee had congratulated the OCJ on a clean audit, but he was not in this space, as one did not praise a fish for swimming. In every department, a clean audit should be the basis. There was approximately R412 000 in irregular expenditure within the OCJ. What was this irregular expenditure? What had been the consequences of the irregular expenditure, if any?
In the Part B performance section, his first question related to the German donor on page 25. In the report, the OCJ had indicated that it was a pilot in the High Court of the Western Cape, and that the money was spent only in this division, nowhere else in the country. It was now known that it involved R4 million budgeted for over-lapping financial years, of which R1.8 million had been spent in the current financial year. What did this partnership entail -- skills transfer, human capital? A proposal had been put forward for the Committee to do an oversight visit to the Western Cape High Court to follow the donors to see what they were doing. This needed to be pointed out, as it could be a ghost donor. This should be a part of what the Committee was tasked to do.
On page 32, the OCJ made a point about engagement with the South African Police Service (SAPS) and the Directorate for Priority Crime Investigation (DPCI) to ensure the production of fraudulent court orders was identified as a national priority offence and investigations were tasked. Were there any reportable consequences or updates on this?
Regarding the targets on page 41, there was an under-spending of R23 million in programme 2 which related to the compensation of employees due to non-filling of vacancies, as there were delays in the approval of the budget programme structure, as well as delays in the handover at the Mpumalanga High Court. Of the R23 million, how much was due to the Mpumalanga under-spending? Could this be shared with the Committee so that they could break it down?
On page 43, the over-achievement was not quite as impressive. The OCJ had planned on 78 participants, and had reported 142. He came from a school where one became very critical of targets being under-planned in order to over-achieve. The gap between 78 and 142 was too big, because issues of budgeting would arise.
On page 45, under donor funding, could the OCJ provide the Committee with a list of the service providers for the project? Who were the service providers who were working for the donor funding in the Western Cape High Court, and in each of the particular projects? This was where R1.8 million had been spent as at 31 March.
With regard to Part D (HR), the OCJ reported that they had filled 181 permanent posts. At what levels were these? Could a breakdown be given of this? Questions would be asked on this later, as it was felt that it was a good record. It was almost as though the OCJ was starting up, so it was interesting to understand this.
Under the achievements and challenges of the APP on page 60, the challenges included the ability to finalise disciplinary and grievance cases within prescribed periods due to procedural matters, such as postponements, unavailability etc. Taking interest in the extent of the issue, was there a practical plan of intervention in dealing with it, or had it just been raised as a challenge?
On page 63, regarding permanent judges vis-a-vis acting judges, this tied in with the Chief Justice’s overview report several days ago. How many vacancies were there in the Constitutional Court, the Supreme Court of Appeal (SCA), and the high courts? To be specific, it was known that Judge Cameron had retired -- was there a process of advertisement, or would the OCJ wait another year before this was attended to?
Page 65 referred to a dispute with one director, which seemed related to one of the issues for under-spending. Without taking an interest in the name of the director, what was the dispute about? Could this dispute be elaborated on, as the OCJ had not explained this anywhere else, even where required? While the OCJ might not mention the name, it was important for the Committee to know if this was at Chief Director level, which appeared to be the case. What were the details of the dispute with the Chief Director who had contributed to a particular level of under-spending?
On Page 67, table 343 depicted employees whose salary levels were higher than those determined by job evaluation and occupation for the period under review. The OCJ had provided something on job evaluation on the previous page, but on the page 67 there was someone whose job evaluation was at level 14, but whose remuneration was at level 15. What was the motivation or rationale here? Without mentioning the name of the person, what were the details of this position? This was important to dig into, but at least the report had indicated that it was a male. The crux of the matter was that page 67 did not paint a good picture about the OCJ, as it concerned employment changes in the OCJ. Point 3.5 indicated an intake, for the period under review, of 415 employees, but there had been an exit of 438 employees. The net loss was thus 23 employees, which the OCJ needed to explain, because the main levels affected were from 3 to 12, which formed the core engine.
Page 74 indicated the disciplinary actions taken for the reporting period. There had been a written warning issued and one month’s suspension with no pay, but there had also been three months with no pay. Who was this? What position was this? What were the underlying reasons? It was the signing of performance agreements at the senior management service (SMS) level. He also asked for the OCJ to adjust the level for the Secretary General.
Regarding the utilisation of sick leave, the OCJ seemed to be sick and there was a problem with this. The problem was with the SMS personnel, as this was the top level where there were many medical certificates. Thus, it was not known whether they were at work. What was happening under leave utilisation? The percentage of days with medical certificates ranged from 72% to 78%, of which the SMS personnel were at 78%, which was the biggest. This was the top management who were leading. This issue was not raised under challenges, but was something that he had picked up as a challenge.
On page 81, in regard to labour relations, the number of grievances not resolved was 17. Could the reasons be shared with the Committee? Further down under disputes, the number of disputes under administration was 14. There were three disputes at the Labour Court, and what was quite critical was that people were testing the OCJ’s appetite for legal processes.
Page 85 concerned the utilisation of consultants by the OCJ. Could this list be shared with the Committee? There was a question around the third consultant appointment of a service provider to provide the following services: travel, accommodation etc. for a period of 36 months. There were three consultants, the duration of work was 261 days, and the total contract value was percentage-based but not mentioned. There was value attached to consultants everywhere else. It became a point of curiosity when the OCJ withheld this information. It might not have been intentional, but why withhold this one when amounts were provided for all other consultants?
Regarding the overview provided by the Chief Justice, he was speaking of this report when he provided the overview. The OCJ should therefore be in the position to speak to this. On page 2 of the Chief Justice’s speech, he had said, “We could, but chose not to have, a detailed report that covers every issue of consequence. For example, we could have individualised the torments of each division.” This pre-emptive strike from the Chief Justice made him want to open a door which was not opening. This would perhaps become important when considering the OCJ’s annual performance plan (APP), as the issues raised made it quite critical to have targets that indicated, when a case reached a court, how long it took the trial duration to become finalised. These were things that needed to be measured. The Chief Justice had made a valid point on the issue of convictions not being a National Prosecuting Authority (NPA) issue. He agreed with the Chief Justice’s understanding that their role was to bring cases that judges would convict. The Chief Justice had added that judges must be judged on the journey from when a case gets to them to their final judgment. If this was not in the report, it would become a nice thing to have.
On those cases by Judge John Hlophe and others, Judge Hlophe argued that because of the stress of judicial officers, which was as a result of some traumatising cases like rape and murder, judges needed a wellness programme, which was not opposed. Did the judges’ training not include this? This was not a peculiar thing to South Africa, as every judge would be confronted by traumatising cases. Did the judges’ training not include these issues being raised by Judge Hlophe?
In paragraph 33, on page 11 of the Chief Justice’s overview presented on 3 October, he had said that most cases of alleged misconduct against judges had been speedily finalised. Which cases had been speedily finalised? Could the OCJ share the status of each case? Why were these cases taking decades? The Judge Hlophe issue had been heard about for quite some time. When would these matters be concluded? Some them had been inherited by Judge Hlophe. What were the complications in terms of all of this?
In paragraph 36, the Chief Justice had said that “on our instructions, the Secretary General of the Office of the Chief Justice asked the National Commissioner of SAPS to investigate and locate thereal faces behind allegations of corruption against certain Members of the Judiciary. Could the Secretary General share where the OCJ and Committee was on this? Parliament and Hawks were curious as to how far this was.
A suggestion had been made that at some point before the end of November, the Committee should have a discussion with the OCJ on the proposals that the Chief Justice made in his speech. The proposals related to Gender-based Violence (GBV) and a lot of ideas had been raised in relation to this, including the use of the integrated report between the arms of the state. The Chief Justice had also made the point that there were two meetings a year between his office and the Magistrate’s Head of Court. How many meetings had the OCJ had? Was the magistrate involved in these meetings?
He thought that the OCJ had done good work in proving the Committee with the annual report a week before the time. This just needed to be engaged with.
Adv T Malaudzi (EFF) apologised for arriving late, and asked if an update could be received concerning the training of judicial officers. Had the OCJ been consulted over the costing of the legislation, especially when there were implications for the training of judicial officers? Could the OCJ update the Committee on the work of the JSC, especially on the judicial tribunal, around the pending outstanding cases, and those cases which were finalised during the financial year under review? Congratulations were extended to the OCJ on their clean audit. He thought that the OCJ and those government departments who maintained a clean audit should be congratulated, because it was not usual. About 95% of departments were failing in getting a clean audit, so those who were maintaining the standard should be congratulated so that they would keep it up. The whip should be taken to those departments who were failing to achieve a clean audit. The Secretary General was congratulated again, as this was what was expected of all departments and entities.
Ms Memme Sejosengwe, Secretary General, OCJ, thanked the Committee for their congratulations and for their hard questions, as this kept the OCJ on their feet. Questions would be responded to as a team. The OCJ would try to answer questions as far as possible and indicate detail in the instances where it was required but the OCJ did not have it. With the permission of the Committee, the OCJ could provide a detailed report so that those details which were required could be provided at a later stage, but the Committee would try to explain.
Starting with the appointments of acting judges and whether it was done on the basis of need, she said this was correct. The appointment of acting judges was made as and when the Judge President determined such, on the basis of the workload he was faced with. The Judge President would approach the Minister as to whether the appointment could be made, to deal with the cases. This happened mostly in those areas where there were vacancies, because there were financial implications involved. She considered the question relating to the consideration of performance indicators on some of the aspects relating said judgments and issues relating to judicial governance.
On the question relating to the areas which fell within the purview of the Chief Justice, as had already been indicated in the past, she mentioned matters relating to the JSC and the number of cases finalised which were before the tribunals, vacancies etc. The information in relation to the number of cases that were before the relevant authorities and now finalised would be shared with the Committee. It should be recalled that it was indicated that the OCJ would provide a JSC report. The Chief Justice would present the JSC Annual Report in October or November, which would contain the details in terms of vacancies and cases before the judicial governance structures, which one would not be able to go into.
On the question relating to the R600 million donation, as the Chief Justice had mentioned in his speech on 3 October, and whether this went through the administration, no it did not. Therefore there was no way that the administration would have assessed it, as it had not gone through the OCJ.
In terms of the single judiciary and a judiciary core-related administration, this was taken as lamentation for lack of progress in the area, but it was a matter of policy which lay within the executive branch, to be able to be taken forward. In brief, there had not been progress with regard to the magistrates being transferred to the OCJ yet. It was a decision that lay with the executive branch. On the judiciary-led court administration model, the Committee should recall that the judiciary had presented their preferred model to the executive since 2014. This process was in the hands of the executive, and there had not been any feedback with regards to the progress on this. More detail would be provided in the JSC report.
The Committee had mentioned the filling of vacant posts and advertising them. It should be noted that the JSC was sitting in the current weekand filling those positions which had been vacant, specifically Justice Cameron’s position. The Chief Justice would consider the matter. It was not for the administration to decide when the posts would be advertised, as it was one of those areas that lay within the judicial space.
Regarding the visit to the High Court where MSP had been piloted, this would be welcomed. Part of the ICT MSP project, which concerned e-filing and case lines, was led by Judge President Dunstan Mlambo in the Gauteng High Court, who had also moved online in terms of this. The progress that had been made would also be raised with Judge President Mlambo, and the OCJ would assist the Committee in going to the Gauteng division so that they could be taken through how it had been dealt with. In the current month Judge President Mlambo had also briefed the legal division about how the system would work.
Ms Tebogo Mashifane, Administration and Parliamentary Support: OCJ, sought clarity from Adv Malaudzi before answering questions. In the question that Adv Malaudzi had asked, he just said that he needed an update on the training of judicial officers. Did he mean new or serving officers, so that the question could be answered appropriately before proceeding?
Adv Malaudzi explained that currently the 2018/19 financial year under review was being dealt with. Was the training of judicial officers up to date? For the financial year, had the allocated budget for the training of judicial officers been utilised? If not, why? If all of the budget had been used, how many training courses had been conducted for the training of judicial officers? The last thing that the Committee had heard was that judicial officers not being trained was a challenge.
Ms Mashifane started by providing an update on the judicial officers, giving some background. The South African Judicial Education Institute’s (SAJEI’s) mandate was to train officials. The Magistrates Court Act says that once appointed at a first or second level, they had to go through training before assuming their duties. The challenge was that SAJEI had absolutely nothing to do with the recruitment process. On a yearly basis, the OCJ was told by the Magistrates Commission that there were a number of vacancies and that they would be recruiting, but the process of recruitment normally took very long. When the OCJ was told about this, provision was made for their training because the Magistrates Commission would share the vacancies. A case in point was that, as early as last year, the OCJ was told that the recruitment would be for 240 magistrates. So, when planning for budgeting, the OCJ would try and reserve the money, as training took a period of four weeks, which required placing magistrates in a hotel, getting them to Gauteng etc. This was a huge amount of money. Towards the end of the financial year, the OCJ was told that the recruitment process was not complete. For the past six years of the existence of the Institute, and even now, the OCJ was waiting. About three months ago the OCJ had been informed to prepare for training that would take place in November. November was a few weeks away, and the OCJ had been told that the submissions were with the Minister, that there was another process that still needed to be gone through, and the OCJ should thus plan for February. These were the kinds of challenges that the OCJ had, but internally, within the government structures, the OCJ would be discussing the reservation of particular amounts for training. This was so that when the Magistrates Commission started the process, they knew that training would take in a particular month and that if it did not meet that month, training would not take place. In this way the OCJ was trying to address budget issues. This could be seen in the virement for judicial education, where money was allocated but training had not taken place.
On judicial wellness, the question asked was whether there was no judicial wellness in the training offered. This was where the challenges regarding the judicial officers existed, as had been rightfully mentioned, as traumatising cases were dealt with on a daily basis. The OCJ tried to get a service provider to come and conduct a two- or three-day programme on stress management. After three years, it had reflected and decided that this was not enough. The reality was that judicial officers were expected to be in court on a daily basis. Over weekends they would attend to their own issues if they did not have urgent matters. The OCJ was thus able to take the judicial officers only on those two or three days, and provide a little bit of stress management and how to deal with it, but this was not happening. As a result, through the Chief Justice and Head of Court, it had been resolved that the Judge President and herself should work on a more sustainable judicial wellness programme which had been started in the current year, benchmarking with other jurisdictions. The reality was that even in jurisdictions where there was money, such as Brazil, they were looking for an appropriate model of a judicial wellness programme for the judiciary. The only model that all jurisdictions in the world were confident in insofar as judicial wellness was concerned, was found in Australia. The OCJ had had a session with an expat from Australia while attending a judicial training conference in Cape Town, to share where they had started and where they currently were. The model Australia was using was also said not to be perfect, but at least they had started. This was the route the OCJ was trying to look at, to have a more sustainable judicial wellness for the judiciary in South Africa. The judicial wellness programme that the magistrates were undergoing through the Magistrates Commission was also two or three days, and this was not helping.
The OCJ had planned the targets for training, looked at what they would be able to deliver, and always made room for newly appointed judges when it came to figures. The challenge with the training of judicial officers was that the OCJ responded to changes of legislation policies and new laws in order to capacitate judicial officers to deal with these matters when they came before them. For example, three year ago the OCJ had to come up with a programme on South African Data Archive (SADA) crime, because SADA issues were coming before judicial officers. About a year or so ago, the Magistrates Regional Courts got several jurisdiction, which meant that the OCJ needed to respond to this and train judicial officers. This was because, as it was known, most magistrates had spent their lifetime dealing with criminal cases. Now, if they were to receive civil cases, the OCJ had to ensure that they were empowered. There was also a need for more training on several court skills at the district level, because the regional courts took acting magistrates from a district level. This was why, when looking at the advertisements by the Magistrates Commission, they advertised for civil regional magistrates, as they were looking for these specific skills. This told the OCJ that although 78 had been planned for, there were needs that had to be dealt with.
For the past financial year, there had also been a project on court annexed mediation. as this was a vision of the Chief Justice, the Judge President and the leadership of the district magistrates. The OCJ had run more than 30 workshops on civil mediation to ensure that the project led by Judge President Mlambo could be implemented. On other areas, such as diversity issues, judicial officers were human beings, therefore there would be diversity issues. There were some courts where the OCJ had to respond to the need to deliver training on diversity. One example that could be shared, and that had been to the JSC, was the issue around diversity at the Supreme Court of Appeal (SCA). The OCJ had had to respond to this and run a judicial programme, as this was a process in terms of diversity. The OCJ had been to the SCA twice, and just the previous day the Judge President had requested a follow up so that the issues could be dealt with. This was an embarrassment. This was why in all instances, the OCJ would be exceeding targets as they were responding to the needs on the ground in order to ensure their contribution to access to justice.
Mr Coetzer responded to the finance-related questions. The first question raised concerned the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) donor funding project. When converting Euros into Rands, an amount of R4.8 million had been awarded by GIZ over a two-year period for efficiency enhancement through business process re-engineering of some of the functions at superior courts. The OCJ as an entity did not receive the money through the revenue fund. In terms of GIZ and National Treasury rules, they did all the procurement of service providers and consultants, if necessary, through their own procurement processes, in consultation with the OCJ, and would also directly pay the service providers. With such a project, there was a long engagement with the departments that received donor funding, National Treasury, and the entity providing the donor funding. This was done in light of National Treasury rules, as Treasury had to pre-approve the project based on the submissions by the OCJ. GIZ had spent R1.8 million in the year under review, with the balance of money that should be spent by the end of December in the current year, when the project would terminate. Mr Nathi Mncube, Chief Director: Court Administration, OCJ, would respond to the questions relating to the piloting, roll out and successes in terms of pilots but for now only the financial mechanics in terms of donor funding would be explained.
One of the questions raised concerned the list of service providers used by GIZ. The OCJ did not currently have the list with them, but knew that GIZ had appointed three service providers, although he could not exactly recall the names of the companies. The first company was required to do business process re-engineering. The second company developed an alternative budgeting model for the OCJ for superior courts, which required a bit more detailed and active budgeting than the current Treasury model. It would be piloted in the current financial year to use in the budgeting process moving forward. The third company was appointed for change management. However, the details on the names of the companies would have to be forwarded to the Committee.
On the question relating to sources of revenue, this was contained in disclosure note 3 on page 137 of the financial statement’s sections of the annual report. This note provided a list of the sources of revenue and related mainly to the sale of goods and services other than capital assets, the bulk of which was money for photocopies that the private sector made in courts, as they were charged an amount per page. The other major source of revenue related to the recovery of debt from officials, which amounted to R780 000.
On the question concerning virements on page 13 of the Accounting Officer’s overview, section 43 of the Public Finances Management Act (PFMA) states that an entity or national provincial department was allowed to make a virement of a maximum of 8% per main division of a vote which translates into a programme twice a year. This could be done during the adjustment budget process and then again in the final appropriation at the end of the financial year. Without going into the intention of the legislature, the virement prescript in section 48 was there because certain things happened during a financial year in terms of new Treasury prescripts, new Treasury instruction notes, Accountant-General changes, prescripts of the modified cash standard etc. The Standard Chart of Accounts (SCOA) codes are changed and amended by the officer of the Accountant-General during the financial year, which then necessitates a reclassification of expenditure. In this case, it should be noted that the OCJ had utilised 2.4% of programme 2 to transfer to programme 1 for the court modernisation process. The OCJ used goods and services money that was initially budgeted, to pay the service providers procured by the Sector Education and Training Authority (SETA) for e-filing and court modernisation as a goods and services classification. SETA had then advised the OCJ that they must procure the software and licences for case lines which were now utilised in courts as part of the e-filing project, and which then becomes capital expenditure. This was why the major transfer or virement had happened, as it was from goods and services to capital. Then, a 2% virement was done from goods and services to judicial education and support, as the OCJ knew that the money would not be spent as a result of the non-appointment of magistrates. The OCJ also utilised this to pay for the new capital expenditure. The Auditor-General audits every virement in detail to see whether there was any transgression of any prescripts, and no finding had been made here -- not even an administrative finding on the virement process. This was thus part of the audit scope that the Auditor-General audited.
On the irregular expenditure question, this could be found on page 152 of the annual report in disclosure note 24. It should be noted that R412 000 of the irregular expenditure was incurred in the year under review. R100 000 of this was for consequence management in the form of a written warning to the transgressor, which concerned furniture that was being procured. National Treasury and the Department of Trade and Industry prescribed that there was a form called ‘SBD 6.2’ that dealt with local content procurement in terms of the prescript. Where one procures textiles and other goods, local content suppliers must be utilised. In this instance, there had been neglect in obtaining the SBD 6.2 form from the service provider and therefore it had been classified as irregular expenditure. This did not mean that the OCJ did not get value for money – it was just that one form had not been completed and the batch for procurement was incomplete.
On the R312 000 irregular expenditure concerning which the OCJ did not take any action against officials, this was again a technical issue, as it involved procurement of foreign publications for the Constitutional Court. This included law books that could procured only from a sole service provider in the United Kingdom. Treasury, in terms of normal procurement, required that companies submit a form called ‘SBD 4’ which dealt with tax declarations, and stated that one was tax compliant within South Africa. A foreign company did not have to be tax compliant within South Africa, therefore the official did not obtain the SBD 4 form for the company to declare that they were tax compliant within South Africa. The Auditor-General was of the view that even though the company did not have to be tax compliant, the SBD 4 form had to be filled in for every procurement. Therefore, the company had to declare that they had no tax issues in South Africa. Thus, it again concerned an SBD form which was not completed and the OCJ did not take it further, as it was an interpretation issue between officials and Treasury. The Auditor-General felt that in future the SBD form should be completed for foreign procurement, even though it did not have any relevance.
On the under-spending on the compensation of employees, the amount that the OCJ had budgeted for the financial year for the creation of posts in the Mpumalanga high court was R19.6 million. The OCJ could only start appointments on 1 March 2019, which was the last month of the financial year. Courts were not ready by then, but the OCJ had projected by the time that they trained officials the court would be ready. The saving on the Mpumalanga compensation of employees was thus around R19 million for the financial year, and this amount could not be utilised as it was not known when the court would be ready for the appointments.
On the list of service providers for GIZ, it had been commented that the list would be obtained, and the Committee would be informed on who the three service providers were.
On the question relating to the list of consultants that had to be declared on page 85 and the procurement processes, Treasury had certain prescripts on how to declare, and which procurement issues must be declared as to the appointment of consultants. Strictly speaking, a travel service consultant was not a service provider, but Treasury required that this be included in the list for good reason. The question asked why this had been stated as percentage-based on a fixed-amount contract. National Treasury had issued the National Framework for the Appointment of Travel Services in National and Provincial Departments in 2016/17. Every government department that makes use of a company that provides travel services has to do it in terms of this National Treasury framework. The framework also prescribes the tariff structure that must be advertised when advertising a tender – there is a tariff structure that Treasury verifies after submission. The tariff structure was mainly percentage-based, so if conference services were procured then a percentage of the conference fees would go to the service provider. The other part of the tariff structure was booking-based, so for each booking that was done, a service fee was charged. There was thus a prescribed structure, so one could not predetermine the amount that would be paid to a travel company. Therefore, the OCJ could not say that the amount awarded for 36 months was R10 million or R4 million etc. Depending on the volume of travel requests to the company, that would then determine the amount that was paid over to the service provider. He had never seen a department appoint a travel company on a fixed amount, because the volume differed from year to year.
Mr Mncube responded to the question relating to taxation. The Committee might have been aware that the registrars were trained at the Justice College and did not necessarily receive an accreditation on that. The importance of what the registrars did was that the function they performed was inherently that of the judges. The registrars basically performed on behalf of judges and did not necessarily do taxation in the true sense of the word. They just checked the itemised dealing by the party against whom the cost was awarded. If two parties agreed, the registrar would indicate that the parties had agreed, and the bill would be settled as taxed. It did not necessarily mean that they did the taxation.
On the issue of appeals and reviews, as the Secretary General had indicated, this was the space of the judiciary. The judiciary were dealing with the appeals and reviews and were working on their own strategic plan, as the Chief Justice had indicated, in developing their own targets and key performance indicators. The officials did not do any appeals and reviews.
On the issue of the GIZ which had been left for him to provide input on, and which related to what it was that was being provided, it had been indicated that it was just the re-engineering of the business processes. What had been done in the Western Cape was to go and look at what it was that the OCJ could improve on in terms of efficiency. So, if the Committee went there, they would not find any equipment – it was just the systems that the OCJ was using that the GIZ had advised them to improve on. For example, a litigant might have seen in some courts where they went and requested files, that a template was developed that the litigants would then submit to the OCJ two to three days previously, indicating what file they required, so that when the litigants collected the file it did not have to be looked for. This was not a kiosk, but rather a place that one would go to, such as an inquiry section, where an inquiry could be made as to where to go and what to do, instead of going to the general office and standing in a long queue. These were minor things, but also involved a skill. There was a supply chain management aspect where the GIZ provided a person to be based in OCJ offices and who was helping the OCJ to share the skill with court managers, chief registrars and the OCJ so that they could plan. The Committee was welcome to go to the court, but should not look for any equipment of any nature.
On the question around the Chief Justice meetings with the magistracy, the Heads of Superior Courts met three times a year, but the Chief Justice also met with the Heads of the Magistracy twice a year. The difference could be because when the Heads of Superior Courts came to the State of the Nation Address (SONA), they would meet the day after, otherwise they met twice a year in April and October.
Ms Sejosengwe addressed the question around the SAPS and Hawks investigation with regard to the corruption allegations in the judiciary. To confirm what the Chief Justice had said, SAPS had responded to the letter to say that the Hawks had been assigned to investigate. Contact had already been established with the OCJ with regard to information that might be needed, and the OCJ had indicated that some of the information was with them, which could be provided. This was the progress with regard to the matter.
On the mention having been made for the Committee to discuss the proposals by the Chief Justice on GBV, the OCJ looked forward to this.
Regarding the questions which had been asked and which required the OCJ to submit an answer in writing at the last meeting, the OCJ had submitted the report to the Committee through the Secretary. If there were issues, the OCJ should be informed or a report could be submitted.
On the issues relating to Human Resources which required detailed information to be provided by the OCJ, these were part of the issues that the Audit, Risk and Compliance (ARC) Committee of the OCJ also assisted with, as the OCJ reported to ARC on a quarterly basis on the Human Resources Management and Governance report. The OCJ had some of the information in the Governance Report that sat before the ARC. She had requested that all of the HR-related questions be answered, and the details provided in writing to the Committee.
The Chairperson asked how long the OCJ would need to respond in writing.
Ms Sejosengwe said that three days would be sufficient. She did not think that it would take long because the ARC Governance Report would have to be enhanced with the questions that had been asked, so that the OCJ could provide a full detailed response.
The Chairperson thought that three days should be fine. There was a culture that the departments were reluctant to reflect on some of the issues raised and were dependent on written replies. This was understandable in terms of accuracy and full responses. There was no harm in reflecting on something as long as the OCJ was qualifying what was said.
Mr Dyantyi agreed that it was okay, but he was looking forward to getting the responses because there were quite a significant number of questions asked and some of the answers, quite frankly, could have taken a quick response. However, this would not be pushed for, because everything that was mentioned at the meeting was for public consumption and so there should not be a difficulty unless the Secretary General was saying that the OCJ wanted to be more accurate and did not want to give half answers. If this was the issue, then it would be accepted. However, if a question were to be asked like the one concerning a dispute with a Chief Director, the OCJ knew the situation around this. If a question were to be asked such as that concerning the OCJ being viewed as an exodus of people leaving, this was not a complicated or secret question. Thus, not all questions required a written answer, but there were certain questions that did. For example, the dispute regarding the Chief Director might need the OCJ to go back and provide a written answer, as there may be some things that the OCJ did not want to put out there because it might jeopardise a particular case that might be in process. This would be understood, but not anything else.
The Chairperson said that there might be some other comments which needed to be concluded. The issue of the acting judges was a difficulty which the Committee was still trying to discuss further. The bill came from the National Revenue Fund, which was not an open bank. The Committee would still engage with the Standing Committee on Public Accounts (SCOPA) on this. Was the motivation to the Minister for an Acting Judge via the Judge President referred to funding, or was it left to the OCJ? The Committee knew that in the past this was left to the Department of Justice. What was the situation now? In terms of the revenue fund, the Committee understood the emergency acting appointments, but most of the high court rolls were planned well in advance. The OCJ knew before term started when they would need an acting judge and would see the trend. Was it possible to give the National Revenue Fund an indicator of the trend? He was sure that the National Revenue Fund would have this, as they had just studied the OCJ’s expenditure in this regard, but it would certainly be proper for the department or judiciary to indicate this. The Committee was interested in this because, when they did meet with the National Revenue Fund, they would want to hear whether they were an open bank that just got refilled as it emptied. This could not be the practice in terms of accountability.
On the matter of accreditation, the Committee understood what the Taxation Master did, and that they were also formally appointed to the high court. The issue concerned whether the OCJ was thinking of providing them with accreditation in the future so that they were qualified in terms of the court systems when it came to taxation. The Committee knew the process -- this was just to provide qualification because, as was understood, the Taxation Master could not start without having done some course.
Lastly, on the appeals and reviews, the OCJ had mentioned that this was a judicial function, which the Committee understood, but a large amount of effects was administrative-related. The challenges within courts at the moment, in light of appeals and reviews, were not about judicial mistakes – it was largely administrative non-compliance, such as no date of appeal, not reaching the Board from Pollsmoor, disjuncture in the register etc. Was it not time that the registrars were assessed on this, or did the problem lie somewhere else? Who was to be held accountable? If one end was held accountable, how could the other end not be held accountable?
Ms Sejosengwe took note of the Committee’s comments with regard to written responses, but it was for that reason that the OCJ did not have details at present and would like to give the Committee precise information.
On the question regarding disciplinary cases and what the intervention plan was, the OCJ had tried to explain on page 60. For disciplinary cases mostly, the OCJ had external people doing both investigation and presiding. The Department of Public Service and Administration (DPSA) had tried to intervene in the past, but it did not work as effectively as it should have. This affected the cycle time of the finalisation of disciplinary cases – in terms of administration, not the judiciary, as the judiciary would provide a list of cases where the details concerning finalisation lay within the judicial space. On page 60 the OCJ set out how they would try to intervene by perhaps looking at training all internal staff to assist the OCJ, instead of paying external staff, although external staff were important as they brought objectivity where internal staff were not objective. This was an issue that the OCJ was grappling with.
On the question concerning judicial vacancies, the JSC filled the posts that became vacant while the Chief Justice also dealt with vacancies. The OCJ would provide the list, as indicated, on the judicial vacancies and dispute cases.
On the issue relating to the Chief Director, this was a matter that was still in litigation. She requested the indulgence of the Committee not to deal with the matter in the public space.
On the question concerning the intake, terminations and staff turnover, it was important to note that some of the figures related to contract appointments. As the leadership of an organisation, one had to find ways to ensure that people could still be taken in to do the work while waiting for the formal processes. However, detail around this would be provided so that the Committee could see what the OCJ was doing, just as the ARC did. Other matters relating to leave would be left until the details were found so that no wrong information was given.
On the question relating to acting appointments and the costs relating to the National Revenue Fund, when the Minister was approached, the issues around costs did not necessarily get discussed as the workload issues that the court faced were discussed instead. After this, the administration and the CFO would look at the costs. It could be recalled in the past, that the OCJ had said that an appointment of a judge in the system cost R1.1 million. This R1.1 million was not necessarily a part of their salary, as the salary was a part of the National Revenue Fund. This cost was calculated and estimated based on what it meant in the vote, as this was what the vote had to pay for. These were the things that the OCJ was alive to, and they were managing it within the vote.
On the appeals and reviews and administrative non-compliance which did not affect the judges, the OCJ did have an operational plan and some of these things were dealt with in the APP. The question also addressed the judicial side of things in terms of the turnaround times. This was a matter in the space of the judiciary, as they determined their key performance indicator targets. This would be included in the report that was to be given to the Chief Justice on the issues that had been raised, alongside the appeals and reviews, vacancies etc that would appear in the JSC annual report.
Mr Mncube said that on the question concerning taxations, the OCJ would investigate the proposal in terms of accreditation. On the question concerning reviews, the appeals and reviews backlog was where the issue emanated from. This was at the lower court, not the high court, at this point in time. The OCJ did meet with their colleagues to try and fast-track where challenges were being experienced. However, it would be difficult for the OCJ to have this as part of their indicator, as they received only what came from the lower courts and thus far the delay had always been on the other side.
To add to what the Secretary General had said, the speech that the Chief Justice gave was on the judiciary’s annual report, it was not on the OCJ’s annual report. The overview was entirely on the judiciary, not on what the OCJ had presented.
Mr Coetzer referred to the comment made on whether the National Revenue Fund was an open bank, and responded that it was not. What was important to note was that at least twice a year, between the officials of the OCJ dealing with the judicial support under the administration of the judges and acting judges, the finance unit had meetings with National Treasury, the Budget Office and the Public Finance Office, where the OCJ gave projections of what might happen during the current and next financial year. It should be noted that in the financial year of 2017/18, there had been an overspending of R32 million. Because of the interaction that the OCJ had implemented between the OCJ and National Treasury, this had been managed down to R91 000, which was quite a good achievement. One could never know what the crises were going to be in terms of acting appointments that were needed. Therefore, it was never an exact science to have an exact budget for the salaries of judges. It was very easy when it came to permanent judges as one could determine what the liabilities were going to be. However, in terms of acting judges and caseloads, this was dependent on a number of issues. This was the exact reason why it was included under the National Revenue Fund as a direct charge, and not a voted budget, as it was not an exact thing that could be budgeted for, and could be why the Public Finance Management Act (PFMA) had included it as a direct charge.
The Chairperson said that the Committee was happy to hear this and explained why the point had been raised. Over the past two financial years, the OCJ had been fine in managing this because there was a large amount of vacancies and turnover in terms of judges’ vacancies, especially in Gauteng. This was where the OCJ had ‘saved’ money, but this would not always be the case while the posts of judges were being filled. There might be difficulty in terms of the revenue fund, but the Committee would also engage in this regard, as it also applied to the magistrates, not just the judges at the lower courts. The Committee was happy that the OCJ was engaging with this to at least monitor it.
Mr Dyanti had a follow up question. When the OCJ had said that the issue in terms of service providers did not just concern the list names, he hoped that the OCJ had insisted on this from the GIZ. What the OCJ wanted to avoid was that whoever the GIZ had contracted, when this was done, there were certain South African laws that needed to be met. As the GIZ was donating money, they might neglect the critical requirements. It was thus important for the Committee to get this. The OCJ did not need to respond immediately, but rather in the response that would be sent back to the Committee.
The Chairperson said that the Committee would be having an orientation session with the Auditor-General, who had provided the Committee with lovely slides one previous morning explaining the wording and standardisation of the AGSA. The OCJ did not need to respond to this.
Ms Maseko-Jele was not certain whether she had clearly heard when Mr Mncube said that the Chief Justice met twice with the Heads of Courts. Was this legislated, or was it just an arrangement that they meet only twice, considering the problems at the lower courts? She had been with some ladies in Gauteng who had quite a number of complaints about what was happening at the courts, as they were not satisfied with what was happening there. Was the Chief Justice meeting with the Heads of the Courts twice enough, especially considering that issues around GBV that were coming in very forcefully in terms of the killing and raping of women? Perhaps more sessions could be added so that these issues could be discussed.
A question for the Chairperson had concerned responses on the questions that the Committee was to expect from the OCJ. She thought that this needed to be received before the next session with the OCJ. The responses needed to go to other departments as well so that they could sit and look into them, so that the Committee did not repeat questions when the OCJ came in future.
The Chairperson asked if the Secretary General had any last comments before he closed the meeting.
Ms Sejosengwe commented on the question around the Heads of Courts. The Superior Courts Act provided that the Chief Justice was the leader and set up governing structures within which business was to be made. It thus lay in the purview of the Chief Justice. There were a series of meetings that they held as the Head of the Judiciary at both the superior courts level and magistrates level. In addition, section 8 of the Superior Courts Act gave the Judge President of each province the responsibility to coordinate judicial matters within the province, meaning within the magistracy. Thus, there were governing structures which had been set up, and this would be included in the report back -- specifically how the Chief Justice and the leadership organised themselves for governance. She humbly reminded the Committee to have the meeting with the Chief Justice and the Heads of Court which had been outstanding. She had briefed the Chief Justice about this, but he was waiting for a formal request to meet so that the meeting could be coordinated. This would also address some of the issues that had been raised with the administration that fell within their purview, so that it could be properly ventilated between the Committee and the Chief Justice.
The Chairperson noted what the Secretary General had said and mentioned that something had come to his attention via the media that should be referred back to the OCJ. Matters had been postponed at the Western Cape High Court during the past week in relation to the interpreters. This was just mentioned in passing, and was perhaps an operational matter, but the OCJ may want to check this out as there was some non-response at the court.
He thanked the OCJ and emphasised that the Committee was appreciative of the no audit qualifications (NAQ) and the good work of the OCJ. However, early warning signs had been raised by Members as the OCJ became a bigger matrix. The OCJ had had the flip side in laying the foundation as they had done. The Committee looked forward to the next week when they would be having the Chief Justice and Correctional Services to engage with the Director-General or Acting Director-General.
Information Regulator Annual Report
Mr Sizwe Lindelo Snail Ka Mtuze, Part-time Member, Information Regulator, and Mr Marks Thibela, Chief Executive Officer (CEO), provided an introduction and overview on the annual report for the 2018/19 financial year.
A summary of the progress made on the establishment of the administration was provided. The Regulator currently had 12 funded positions on the approved organisational structure -- the CEO, five executives and seven personal assistants. Of the twelve posts, four had been filled, the CEO and three Executives. The remaining eight had been advertised and were expected to be filled by the end of the third quarter of the current financial year. The Regulator had consulted with National Treasury in terms of section 47(5) and presented two positions that had to be funded. A total of 41 positions had been identified and costed. Feedback was still awaited from the Treasury. It was anticipated that once the Treasury had provided funding, the recruitment process would commence in the fourth quarter of this financial year.
For the reporting period, strategic outcome orientated goal 1 was to ensure that South Africans were aware and understood their rights with regard to the protection of personal information. Strategic objective 1.1 was to develop and implement awareness and educational programmes aimed at promoting the protection of personal information. Strategic outcome orientated goal 2 was to enable a conducive legislative, policy and technological environment that promotes the protection of personal information and access to information. Strategic objective 2.1 was to monitor and research the processing of personal information and computer technology to ensure the promotion of protection of personal information and access to information, while 2.2 was to monitor and enforce compliance by public and private bodies to ensure that existing and proposed legislation and policy promotes the protection of personal information and access to information. Strategic outcome orientated goal 3 was to ensure a conducive regulatory environment that promotes the protection of personal information and access to information. Strategic objective 3.1 was to make regulations, guidelines, codes of conduct and notices. Strategic outcome orientated goal 4 was for informed stakeholders and cooperative relationships to ensure the protection of personal information and access to information. Strategic objective 4.1 was to undertake engagements with relevant stakeholders concerned with the protection of personal information and access to information. Strategic outcome orientate goal 5 was to ensure the protection of personal information and access to information through the resolution of complaints. Strategic objective 5.1 was to conduct prompt investigations of complaints and to ensure the resolution of disputes related to the violation of the protection of personal information and access to information. Strategic outcome orientated goal 6 was the alignment of national legislation with the international best practices through research. Strategic objective 6.1 was to conduct comparative legal research relating to the protection of personal information and access to information and report to Parliament. Strategic outcome orientated goal 7 was to ensure an optimally functional and independent Regulator. Strategic objective 7.1 was to create a high-performance Regulator to deliver on its mandates.
Regarding the achievements against set targets for the 2018/19 financial year, the Outreach and Research Committee was addressed next. For strategic objective 1, the target was phase one public awareness strategy to be implemented, but this was not achieved as the draft strategy had only been developed and was subject to expert advice before approval. For strategic objective 2.1, the target was to develop a research strategy, but this was not achieved as it had only been drafted and tabled for discussion as a result of a lack of human resources capacity. For strategic objective 4.1, the target was for the continued implementation of a stakeholder engagement strategy, but this was not achieved as the draft had only been developed and phase one had been implemented.
In respect of the Legal and Compliance Committee, strategic object 3.1 had the target of having the regulations developed, tabled and approved, which was achieved. Further, it had the target of developing guidelines for codes of conduct which was not achieved, as it was still in the draft stage as a result of the lack of human resources capacity.
In terms of the Complaints and Dispute Resolution Committee, the target for strategic objective 5.1 was for the process maps on complaints management system to be developed, but this was not achieved as the system was not developed as a result of a delay in the appointment of the service provider to develop the complaints management system.
For the Policy and Governance Committee, the target for strategic objective 7.1 was to implement a recruitment policy, but this was not achieved as the Regulator was still using the DOJ policies. A further target was to implement corporate governance polices. While the Charter of Roles and Responsibilities for Members was approved, the Delegation of Authority Policy was not developed as a result of lack of human resources.
For the Corporate Services Committee, there were three targets for strategic objective 7.1. The first target was to implement the organisational structure, but this was not achieved as the Minister of Finance concurred on the implementation of the organisational structure through a phased approach. The second target was for the finalisation of a branding and communication strategy, but this was not achieved as the strategy had not been finalised due to the bid for the development of branding and communications strategy being cancelled by the Bid Evaluation Committee of the DOJ. The third target was to secure office accommodation for the Regulator, which was achieved.
A detailed expenditure versus budget overview was provided. Under compensation of employees, R10 075 000 was spent against a budget of R18 500 000. This was where most of the under-spending occurred. Under goods and services, the full budget of R6 328 000 was spent. Under machinery and equipment, the full budget of R714 000 was spent. Thus, in total, R17 117 000 of a total budget of R25 542 was spent, leaving an available budget of R 8 425 000. Regarding the compensation of employees, the underspending under this item was as a result of the delay in the filling of the phase 1 positions, mainly the CEO and five executive officer positions that were approved during the second quarter and advertised in the third quarter of the financial year. Appointments could not be finalised by the end of March 2019 due to lack of HR support to capture applicationa and prepare the lists of candidates for each of the positions. There was also no variance in terms of goods and services and capital assets. The key challenges were delays in the finalisation of the top structure of the Regulator; inadequate administrative support to assist in the filling of the key advertised positions, and a lack of staff to develop the identified strategies and plans.
The Chairperson referred to the detailed expenditure slide, and asked whether there was a breakdown of the budget. Was the budget allocated under a programme that was itemised or did the Regulator distribute the items as they saw fit in terms of good and services etc? The Regulator was still housed in the DOJ for that matter, and the Human Rights Commission building was the DOJ’s. The Committee wanted an entire breakdown of the Regulator’s budget, besides just the expenditure.
The second critical point was the Regulator’s establishment with administrative support. This was where the most support came from in terms of the Regulator’s procurement abilities and capacity to take away the Personnel Administration System (PERSAL). The Committee did not have an idea of the Regulator’s total establishment that was envisaged, besides management. The Regulator spoke about administrative officers but, as was known, this was management. The support staff required to give effect to the operational realisation of the offices that the Regulator referred was not something that the Committee had. Clarity was sought on what this entailed. Lastly, the Committee assumed that the Regulator was speaking to other smaller entities. The Regulator spoke about one of the functions that needed to be completed for the handover at the end of the next year. This long period was worrying. Could the Regulator elaborate on what this was, specifically in terms of case issues that the Regulator referred to the Committee?
Ms Maseko-Jele said that everyone could agree that the delay at the Regulator impacted negatively on the country. In addition, the Committee would like to encourage the Regulator to continue pushing to ensure that the organisational structure was finalised. This was what impacted the Regulator’s performance most, as had already been alluded to. On the issue of the officer, the Regulator had just said that it had been resolved. The Committee still felt that, even if the Regulator was accommodated within the Human Rights Commission’s office space, the Regulator should also have their own space. The Human Rights Commission was leasing the space themselves. This was another issue that the Regulator might need to look into, because the Committee encouraged the ensuring of savings. Government offices needed to be looked for in order to save on money spent on leasing.
On the issue of complaints management, the Regulator had mentioned that they had actually done some work on this. Could the Regulator share the work that they had already done? Could more information be obtained on the approach that the Regulator had just proposed that they would like to liaise with the Hawks and State Security Agency (SSA) in terms of the approach with regard to information on the reported data breaches? The Regulator had spoken about a uniform approach. Could the Committee hear more information on this?
Mr Horn went a step further than Ms Maseko-Jele, who said that there should be pressure and attempts to speed up, by saying that unfortunately yet again when the Regulator came to the Committee there was very little progress to be seen, even if one looked at the ultimate aim of operationalisation. This was careful to see even if, for a moment, one was not fixated by the fact that in terms of the APP drafted by the Regulator itself, it was more a process of non-achievement. The difficulty was that history would show, if one looked at the minutes of previous engagements in the fifth parliament of this Committee, that there had been a very direct undertaking by the Regulator and role player. The next time the Regulator came to the Committee there should be tangible progress. With greatest respect, if the Committee were to see the fact that there was ‘own office accommodation obtained’ as tangible progress, he would rather have seen the Regulator still squatting with the DOJ and being able to perform its functions and duties.
The Committee should get comments from the Regulator as to what types of budgetary review recommendations the Committee should get to at the end of all of the hearings, in order to ensure that the Committee and Regulator did not meet up again in March/April in the following year when the new budget was under discussion and there was not much progress. In this regard, he was of the view that the Committee should look at using its own powers to force the issue. The Regulator should tell the Committee whether it would assist them if the Committee and Regulator could get the Minister of Justice and National Treasury in one room. Engagement had been heard of, but the Committee wanted a bit more detail as to whether this was just meetings for the sake of meetings. He got the sense that everyone was always put on the backburner with a tweak here and there, so as to have a phased-in approach. This was very disappointing -- one could not say it in any other way.
Mr X Nqola (ANC) asked how far into their terms were the members who had been appointed. The Committee had been told that it was a five-year term, but how far was it? This was very important to be able to guage the work that the Regulator had already done during their stay in office. On the progress on the establishment of administration, the Regulator had 12 funded positions which included executives and personal assistants, but it also referred to the CEO and five executives. Who were these executives? The actual positions needed to be mentioned so that the Committee could assist where necessity arose.
On the achievements against set targets for the financial year, there was a report that a CEO and four executives had been appointed already. When going to the approval of the research strategy, this was also not approved and achieved, just like the public awareness strategy. The reason for this not being approved was a lack of human resources. Could the Regulator expand on this against the executives that had already been appointed within the institution? There was an issue with strategic objective 4.1. Could the Regulator provide insight into what form of stakeholders were being targeted within the overall South African populace as an endeavour in ensuring that they achieve the mandate?
There was an issue around approval of the complaints management system, which was reported as not being achieved because there was a delay in the appointment of a service provider. This was part of the most critical form of their interaction with society in terms of the abuse of privacy in section 11 of the Constitution and section 32, access to information. When would the Regulator be fast-tracking the re-establishment of the system? This was very important because it would help the Regulator to realise the goal which they had been established for.
On the issue concerning work done by the Regulator which had challenges with the DOJ, and the issue of the actual independence of the Regulator in terms of the Constitution, this was properly summarised by Mr Horn in that to help fast-track the matter, sessions were perhaps needed.
On the issue of an approved funded organisational structure under the Corporate Services Committee, this was not achieved. What were the basic reasons for this? The Committee believed that when the Minister of Finance concurred, he had availed the funding for some of what needed to be done. What were the reasons for such a delay?
On the issue around the planning and communications strategy, which was part of the critical form of the Regulator’s work and would assist the Regulator in making awareness in society that there was a Regulator in existence in South Africa for this purpose, the Regulator had said that the bid for the planning and communications strategy had been cancelled. What were the reasons for the cancellation? When was the Regulator intending to resume such work?
On the detailed expenditure versus budget, he had noticed something in terms of the minor assets and advertising, marketing and recruitment. There was consistency when checking the items such as advertising, marketing and recruitment – the expenses were R452 000, the budget was R452 000 and the available budget was R0 which made sense. However, when looking at catering, the expense was R1 000, the budget was R0 and the available budget was -R1000. This was confusing. Were services rendered where there was no funding for such services? If so, could the Regulator expand on this? When were such issues arrived at? Could the Regulator provide insight into its mandate?
The Committee were Members of Parliament’s sixth administration, which had elected President Cyril Ramaphosa. The Committee had seen a number of exposed email links that were said to belong to the President, some of which contained information that was not for public consumption. There had been a legal battle between the President and Public Protector on matters relating to what they called the ‘CR 17’ company fund. The President had made an application for those records to be sealed and the court had ruled in the affirmative, but less than two days later, the burning details were all over South Africa against a court ruling that those records were to be sealed. What was the Regulator’s role in such events? How could the Regulator advise the Committee on such events in the near future?
Mr Mulaudzi said the Regulator had requested additional budget from the DOJ during 2018/19 for the 2019/20 financial year. The Committee wanted a breakdown of this additional requested budget. During the year under review, the Regulator had identified seven executive management posts, and the Minister of Finance had approved the appointment of six of them. What position had been left out by the Minister of Finance? Which positions did the Minister of Finance approve, as seven positions were requested but only six were approved? The Regulator said that they were busy liaising with the Hawks and SSA, and mentioned that they had adopted a uniform approach. What was the uniform approach that had been adopted?
Mr Thibela referred to the budget, and said what had happened during the period under review was that the Regulator was not necessarily involved in the setting up of the budget. The DOJ just ring-fenced the money and would allocate what was for goods and services, machinery and equipment and personnel. This was why, when the Regulator went to the Minister of Finance to request for the concurrence in terms of section 47(5), it was mainly to say that the Regulator was complying with the legislative requirement. The Minister had said that it should be funded in the Regulator’s budget. Now, the Regulator could only go with the positions within the budget, not the whole structure, when somebody provided a budget without sitting together with them to work on it. The DOJ had worked on the budget, and had said that they would be giving the Regulator a budget of R25 million as a start.
To talk to the issue of the positions, the list included a CEO, a CFO, an executive responsible for the Protection of Personal Information Act (POPIA), an executive responsible for the Promotion of Access to Information Act (PAIA), an executive for Corporate Services; an executive responsible for legal policy research and information technology analysis, and an executive responsible for education and communication. Out of these seven positions, only six were funded at this stage. The executive responsible for education and communication could not be funded, and it was not yet job evaluated. Hence, six positions were filled. Out of the six positions, two had been advertised but suitable candidates could not be found and so the process had had to be restarted. The Regulator’s plan was to have all of the structure’s members developed and presented to the Minister of Finance for funding. Given the current challenges on the fiscus, Treasury had indicated that the Regulator could not realistically get the 400 positions. The Regulator had put together the whole organisational structure, but within this structure they were advised to come back with a phased-in approach. This meant that in each and every financial year the Regulator would have to go back and knock on the Treasury’s door, as the DOJ had told the Regulator that in terms of section 47(5), they were to approach Treasury for the funding of their organisational structure. This was a process that the Regulator had embarked upon, as they had started engaging with the DOJ in June and had made bid to the DOJ while showing how they would like to be assisted with funding over three years. The Regulator was then told that they needed to approach the Minister of Finance. Perhaps this would be an optimal time for the Regulator to plead with the Committee to assist in this process, because it had asked for R50 million, but it was uncertain what they would receive from National Treasury for 2021.
For the current financial year, it could be indicated that if things went as planned, there would probably be an overspending, as there was no budget for office accommodation in respect of the building that the Regulator was occupying. What was happening was that the Regulator was taking money from the current goods and services budget to pay for accommodation. The matter had been raised with the DOJ in June, and the Regulator had met with the Director-General on 25 September to advise that they were still facing a challenge with regard to an office accommodation budget.
This also addressed the question with regard to what the Regulator had asked for 2019/20. For the current year, the additional requested budget was mainly for office accommodation. The R4 million projected was not in the current budget. If the Regulator got this budget, they would be fine, but if they did not, it meant that all activities that the Regulator planned to embark on might have to be scaled down, as over-spending would occur. The Regulator would like to continue sharing with the Human Rights Commission, but the challenge was that the current contract or lease with the landlord was until 31 March 2021. From the PFMA point of view, if the Human Rights Commission moved out then the Regulator would not be able to remain, because they had not gone out on a competitive bidding process. The Regulator was thus a sub-tenant there, and had to start looking for accommodation. The Regulator was engaging with the Human Rights Commission and its wish would be to go with them, but the legal impediment was that if it was still operating under the DOJ, they would have to go with the Human Rights Commission as a sub-tenant under them. If the Regulator wanted to be a main tenant, they would have to go the Department of Public Works (DPW) route for accommodation. In the current week, the Regulator had had an engagement with DPW, and the DPW had wanted the Regulator to go and view buildings. The process had been started early last year as the process with DPW was very long, and they were coming back only now to talk about the process that had been started in 2018. These were the issues that the Regulator was currently sitting with. If the situation went like this, the Regulator might piggyback on the Human Rights Commission again, although they wished to have their own building. The reason why the Regulator had moved out of the building in Pretoria was because if one came up with an organisational structure that showed growth over the years and were given offices that accommodated only five staff members, this would not work.
On the breakdown of the budget, this was the budget that had been given by the DOJ. What was happening was that one did not know the actual breakdown or the itemised activities in the budget. Now, even if catering was needed, the team within the finance department would just move funds around. The minus figure in the financials thus reflected that there was no planned budget, as catering was not budgeted for. This was what the Regulator was correcting for the next MTEF period. It had worked on a credible budget, and had engaged with the Committee and the DOJ, looking at what was properly required, as well as considering the previous spending for 2017/18.
On the issue on the term of the members, as it stood now, the members were appointed in December 2016 and were just about halfway into their term of office, which would end in November 2021.
With regard to the bid adjudication and bid evaluation processes, the challenge was that it involved only members during the period under review. There would not even be an official from the Regulator sitting on those committees, as the Act was clear that members could not participate in any procurement. This was why the responsibility of Accounting Officer was given to the CEO. What the Regulator had started now was to deploy the CFO to sit as an observer in the bid adjudicating committee (BAC) of the DOJ for the purpose of assisting the Regulator. When the Regulator requested a bid to be advertised, the first step would be for the specifications committee to sit and come up with specifications, which would then go to the BAC for approval. The Regulator would know where there were problems when the bid was advertised. The Regulator did not know what actually happened with the previous bid because, surely, if the specifications were approved by the BAC, they could not have approved specifications that had gaps. At the time of bid evaluating now, the evaluator’s felt that that they could not recommend any appointments due to the gap in the specifications when it was reported to the BAC. Thus the bid had been cancelled. The Regulator had now engaged with the members, because this was previously a process of which had been done by the DOJ. The document used had been sourced and shared with members. The members had provided clear guidance in terms of what the Regulator was looking for. The product would now be owned by the Regulator, and supply chain management had just been liaised with to say that the Regulator was ready to convene a bid specifications committee to deal with the branding and communications strategy. The Regulator was waiting for the DOJ to confirm the names of the people who had to sit on the committee. These were the people sitting in the DOJ, and their assistance was sought to convince them to participate in the process.
On the issue concerning the research strategy, it had been indicated that this would involve strategies and plans that would require technocrats to produce those kinds of documents. However, the members ended up getting involved in the actual development of the policies, as there had been no technocrats. For example, for the recruitment policy, one would have expected the human resources manager or executive to develop it. However, Adv Johannes Collen Weapond, Full-time Member, South African Information Regulator (SAIR), ended up having to do the draft that the Committee had before them, alongside other members who also had to do certain parts. Now that there were officials who had come in, it had become better for the current financial year. He himself had started in June, the CFO had started in July, the executive for research started in August and the executive for corporate services started on 1 October 2019. The Regulator anticipated that the other executives for PAIA and POPIA would be starting in January, as they had re-advertised the positions. This was the kind of process where they still relied upon the DOJ to assist. The structure sat at 430 posts, which included the provincial offices that the Regulator planned to establish over the next three to five years.
Adv Lebogang Stroom-Nzama, Full-time Member, SAIR, responded to question on the complaints management system. The Regulator shared the same sentiment, that they needed to sit down and get assistance, especially if the Regulator could get the Ministers together and see where the issues were, because they also felt the need to operationalise the Regulator. One of her responsibilities as a member was that she chaired the Complaints and Investigations Committee, where she saw a number of complaints received daily, but nothing could be done at this point in time because the Act was not in operation, and there was no staff. It was difficult. What the Regulator was doing was priority compliance, but it did not remedy the situation. It was understood that there was a dire need to urgently operationalise the Regulator.
On the complaints management system, the service provider was appointed in December 2018, so they started doing their work in January. The service provider had their processes in place, as well as their standard operating procedures. During all of these processes, the service provider had been engaging the Regulator. This was the system that was envisaged for POPIA, with the intention that once PAIA came in they would meet up to discuss. These processes were aligned because at the end of the day, the Regulator had to take PAIA from the Human Rights Commission. The Regulator needed to sit down together with the service provider to pilot the complaints to see whether they were working. This was because there were time periods in the system, which was a process management system. This could be made available, but the Regulator needed to sit down and pilot it. The Regulator had been receiving a lot of complaints, and this was painful as they could not even assist the country and its citizens because their information had been heavily abused by the big organisations. The Regulator understood and shared their sentiments.
Adv Weapond responded on the issue raised with regard to the Hawks and the SSA. There was good news, in that the Regulator was leading when it came to data bridges and security compromises in the country. The Regulator understood that the Hawks were taking part in dealing with the lag in criminal investigations, while there could be attempts by the SSA to investigate issues that concern national security. The Regulator had asked why this should be approached on a piecemeal basis. The Regulator had said that because the institutions were government institutions, they would gather all of the institutions under one umbrella through what they would call a task team agreement. This agreement would then allow the Regulator to say that when they had information with regard to a data breach, they could share it with the Hawks and the SSA in terms of the task team agreement, because it was sensitive information that had to be treated with the necessary confidentiality. However, by so doing, and having this integrated approach, everyone achieved more, and everyone was on par with regard to how to approach and investigate a data breach or security compromise. This was good news, as the Regulator could then go overseas in terms of s72 of the Act, to address colleagues in other jurisdictions by explaining how South Africa approached data, so that they could learn from the South African Regulator. This was a good initiative that Members and the Chairperson had embarked upon. Where the Regulator was with regards to that specific approach, was that they had spoken to Mr Piet Pieterse, who was a high-ranking official at Hawks, and the Regulator was also making contact with the Director-General of the SSA. This was in order for the Regulator to finalise the agreement to share information on the same basis, and to convene quarterly meetings. This was with regards to data breaches, and where the Regulator wanted to move. He was of the opinion that this was of best practice and completely unique in the way that government departments interact, collaborate and integrate the approach to achieve the same goal.
Regarding the comments made on the little progress around operationalisation of the Regulator, and the APP not being achieved, the history of the minutes indicated such. The comments made around the issues of progress and it not being tangible, the budget in review, the Committee using its powers to get the Treasury and the Minister together etc, had been a good assessment as there had been very slow progress. What the Regulator needed to do was to work within the constraints and the parameters of the legislation. Section 45 of the legislation stated that the Regulator must consult with the Minister of Finance. The Regulator had consulted with the officials at Treasury, so both during and after the interim budget, the Regulator would have its budget because it was less than the R50 million approved for phase 2. However, the Regulator needed to follow the process. What was good news for the Regulator was that they anticipated starting the process of the filling of vacant positions by the beginning of the new financial year. it was still slow, but the Regulator could ensure that they worked within the constraints and confines of legislation so that they did not find themselves in a compromised position of irregular expenditure being questioned by the Committee.
However, what the members had also agreed to was that to speed up the interventions, they needed to gather all of the stakeholders together under one roof and discuss how far they could get in ensuring that the committee felt comfortable. Indeed, it would ensure that all of the processes were speeded up so that a faster outcome could be achieved.
On the issue of the budget review, as the CEO had said, there was R25 million for the previous financial year, but as soon as DOJ had begun to be engaged, they had started to appreciate the Regulator position. In addition, as soon as the Regulator started to appreciate National Treasury, they had started to agree that they now needed to look at how they could allocate more funds to the Regulator in order to ensure that the Regulator capacitated itself and moved closer to operationalisation.
Mr Snail Ka Mtuze said when it came to stakeholders, the Regulator had taken a very serious position by saying that they worked with all stakeholders. Stakeholders meant all walks of life in South Africa, be it non-governmental organisations, educational institutions, ingozi, traditional leaders etc. The Regulator had really taken a wide decision regarding stakeholder engagements. The members themselves did the stakeholder engagements, as the Regulator did not send people to go and do it. Members prepared presentations and would go and spend the day working with the stakeholders, explaining what POPIA was about, what the expectations were etc. The Regulator had tried really hard to work with all of the stakeholders that were possibly there.
With regard to the comment on the litigation between the Public Protector and the President, since this was an overview of 2018/19, it had not been included in the report. The Committee could be advised that the Regulator had applied to be an amicus curiae in the matter. The Regulator had been admitted as an amicus, notwithstanding the fact that there was no budget to instruct legal council. However, the Regulator had found it prudent to get involved as it was a public interest matter. Some of the issues being discussed were very complex legal matters that did not affect only the President, but everyone, including the ordinary person in the street. The Regulator had not taken any side, but had decided to say that its mandate was the protection of personal information and access to information. The Regulator would be giving a further affidavit to the court to try and assist it in dealing with mattera relating to personal information that had allegedly been breached.
Regarding the sentiments shared by Mr Horn, these were sincere sentiments. There was nothing better than the truth. People always said that the truth hurt, but the truth in this particular instance was that the Regulator and members had been pushing very hard to try – within the limited resources and constraints.
Regarding the procurement of branding and communication, as the Regulator had been under the DOJ, it had heavily relied upon on their processes. Unfortunately, these processes were not in the hands of the Regulator. He asked whether the Portfolio Committee could bring all of the people together to make this initiative work, and use its powers to apply pressure. It could be recalled that the Committee had previously said if the Regulator needed help, they should say so, and it was once again saying that they would appreciate it if the Committee could assist them.
The Chairperson noted the comments and said that Committee would certainly follow the details of the types of instances raised so that everyone could speak on them and follow through.
Mr Dyanti commented that it looked as if the Regulator was the most destitute institute, so the Committee had to help them.
The Chairperson added that there were a number of intricacies involved.
The meeting was adjourned.
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