SIU Update on investigations relating to Office of the State Attorney; Master’s Office & Building of Courts; Deputy Public Protector Salary

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Justice and Correctional Services

26 February 2020
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Closure and Investigation the Masters’ Offices [03 Feb]
SIU Proclamation to investigate Master’s Office
SIU Proclamation to investigate Limpopo and Mpumalanga High Courts

The Portfolio Committee on Justice and Correctional Services received a progress report from the Special Investigating Unit on investigations relating to the Office of the State Attorney, the Master’s Office and the building of new courts.

The Special Investigating Unit explained that the investigation into the State Attorney’s Office had overlapped with the medico-legal investigation with which the Unit was involved in conjunction with the Eastern Cape Department of Health as the State Attorney’s Office had been involved in those cases.

The presentation contained lists of actions against legal practitioners in Gauteng and the Eastern Cape. The value of the matters that had been quantified ranged from thousands of rand to R34 million by a single legal practitioner. Names were not provided as the practitioners had not yet been charged but one advocate was being charged for criminal fraud in respect of over-reaching and overpayment of claims in the total amount of R34 million. Another advocate had already offered to pay back the money that he had fraudulently been paid. The details of the offences by all advocates were similar. The former head of the Office of the State Attorney for Johannesburg had been charged with collusion amounting to R26.5 million.

Only four out of a planned eight courts had been built because there had been an over-run of 100% of the budget. R3 billion had been allocated for eight courts but R6 billion had been spent in building only four courts. One of those courts, the Limpopo High Court, had been built on a spring so that the building flooded when it rained and the workmanship was so poor that the building might have to be demolished.

Members expressed shock and horror at the extent of fraud and corruption. How had it been allowed to happen? The amount of taxpayers’ money involved was enormous. How would the situation be explained to the SA public?

Had there been an update to the Executive so that Members of the Executive could take measures in the interim, such as ensuring checks and balances were in place against approvals and how those invoices were paid? Had the Special Investigating Unit communicated how easy it was to show compliance but act corruptly? Had National Treasury been informed? How was the Special Investigating Unit and the National Prosecuting Authority going to cope with the sheer number of cases? Did the Special Investigating Unit have the resources to deal with the amount of work that the proclamations entailed? Were other law enforcement agencies cooperating in the matter? Was a judge in the Eastern Cape implicated? What was SIU’s recommendation to go beyond the symptoms?

Members asked about the double over-run of budget and the Limpopo Court that did not work as plumbing, electric, lifts, and so on were all defective. Who had signed off on payments to people for the building? Who should have monitored construction and payments?

The Committee also discussed a letter addressed to the Committee. The Speaker requested advice on how to handle the issue of the remuneration and conditions of service of the Deputy Public Protector (DPP). The incoming DPP complained that she would earn less than the previous DPP who had earned R1.8 million and less than she had earned in her previous position in the Public Service at SMS level 16. The Chairperson stated that there was confusion because the salary had been determined under a different dispensation. In terms of the current dispensation, the Remuneration Commission made a recommendation to the President and the Members could only interact with it when the President sent the determination to the House for approval or rejection.

Meeting report

Opening Remarks

The Chairperson welcomed Members of the Committee and the Special Investigative Unit (SIU).

The Chairperson informed the SIU that the Committee Strategic Planning Lekgotla had determined that the manner of working in the Committee would change. Documents would be required one week before the meeting so that Members and Committee Researchers would have time to interrogate the documents. That timeframe was incumbent on the Committee informing the departments and the entities of the programme timeously. There would also be a time limit on the presentation and only the most critical issues should be presented as Members would have had time to read the documents beforehand. The SCOPA approach of a limited time for each Member to put questions would be adopted.

The Chairperson informed the SIU that he was alerting the Unit to the new approach which would take effect from the time of the budget presentations.

Presentation by the Special Investigating Unit

Adv Any Mothibi, Head, SIU, introduced his team that he had brought along to assist him with details of the three projects to be discussed in the briefing: Leonard Lekgetho, Chief National Investigating Officer; Sagren Reddy, Project Manager; Bulumko Stemele, Programme Manager for the Investigation into the State Attorney; Natasha Naude, Project Manager Cape Town and the Investigation into the Masters Office; Tumelo Zwane, Chief Information Officer; Kaizer Kganyago, Head of Communications and Stakeholder Relations.

Adv Mothibi indicated that the presentation would provide an update on the State Attorney Investigation, address the building of courts generally and not only the Limpopo High Court, and finally provide an update on the Master’s Office. He indicated that the expected outcomes of an investigation were civil litigation, disciplinary action referrals to state institutions, prosecution referrals to the National Prosecuting Authority (NPA) and referrals to other regulatory authorities such as the South African Revenue Services (SARS) and the Financial Intelligence Centre (FIC), as well as systemic recommendations.

Investigation into the State Attorney’s Office

Adv Mothibi explained that there was an overlap between the medico-legal investigation and the investigation into the Office of the State Attorney. The medico-legal investigation had started in the Eastern Cape Department of Health in connection with claims of medical negligence. The proclamation required the SIU to investigate the legal services that were provided, or procured, by the office of the State Attorney in the performance of its functions on behalf of the Eastern Cape and Gauteng Departments of Health. The Office of the State Attorney investigation also arose from maladministration in relation to legal services provided to the South African Police Services (SAPS) in respect of wrongful arrest and irregular conduct by employees across the State attorney’s Office.

Mr Lekgetho was responsible for the investigation into the State Attorney’s Office. He continued the presentation which contained lists of actions against legal practitioners in Gauteng and the Eastern Cape. The value of the matters that had been quantified ranged from thousands of rand to R34 million by a single legal practitioner. Names were not provided as the practitioners had not yet been charged. Advocate “A” was being charged with criminal fraud in respect of over-reaching and overpayment of claims in the total amount of R34 million. The SIU was preparing criminal charges and the Advocate had been suspended from the Johannesburg Bar. The presentation listed the various cases against advocates. The details of the offences were similar.

Adv Mothibi explained that some of the advocates had indicated that they would be ready to repay the money that had been illicitly gained.

The Chairperson asked Members if they would prefer to deal with each item separately or receive a complete presentation before discussions.

Adv H Mohamed (ANC) apologised for being late but a young girl in his constituency had been shot in cross-fire. He noted that each segment was quite different in nature and he had difficulty asking questions after all presentations. He requested that the Committee discuss each item as it was presented.

The Chairperson agreed to discuss the matters item by item but the questions needed to be brief.

Adv Mothibi indicated that the State Attorney’s Office had been involved in decisions relating to medical claims in the Eastern Cape. The SIU was going to apply for rescission of the judgements. There had been unlawful conduct by employees in the State Attorney’s Office as well as by other state officials, such as a nurse and the registrar of the high court would be charged with fraud.

In addressing the claims against SAPS for wrongful arrest, assault and malicious prosecutions in Eastern Cape and Northern Cape, the SIU was starting with the highest paid settlements, those matters that had been undefended and police stations with the highest claims where people arranged to be wrongfully arrested so that they could claim against SAPS. Those matters in the Northern Cape added up to R15 million.

Adv Mothibi stated that investigations had shown that there was a use of intermediaries. Between the State Attorney’s Office and the service providers were companies, like brokers, that were irregularly appointed and overcharged. One intermediary had charged R123 million for services rendered despite the irregular appointment of the company. Invoices were vague and did not indicate the services provided. The mark-up by intermediaries was 100% of invoices which ran into millions of Rand, although the intermediaries had not done anything other than forward the invoice for payment. There were also many invoices that were submitted repeatedly, even though the invoice had been paid repeatedly.

Medico-legal claims had been made without the knowledge of those involved in the supposed claim. For example, a birth difficulty claim had not been made by the parent who name was on the claim form and the baby cited had suffered no harm whatsoever.

Adv Mothibi referred to Nonxuba Incorporated Attorneys which had made eight claims for R15.093 million in the Eastern Cape. He was also involved in fraud in Gauteng. The Attorney was named as he had already been criminally charged.

Mr A G Lekabe, the former Head of the State Attorney’s Office, had been charged with collusion amounting to R26.5 million. His pension had been attached.

Discussion

Adv Mohamed said that the information was shocking. He understood that the investigations were not complete but he asked if the professional bodies had been informed and the management of departments, where applicable. Although there were ongoing investigations, the authorities needed to be aware of the issues.

Adv Mohamed understood that the amendment of the proclamation in July 2019 had extended the timeframe, but he asked whether or not the proclamation limited the scope of the investigation. What happened with information that the SIU found that did not link directly to the proclamation? Had there been an update to the Executive so that Members of the Executive could take measures in the interim, such as ensuring checks and balances were in place to monitor approvals and payments of invoices? Had the SIU communicated how easy it was to show compliance but act corruptly? He hoped that a range of directives had gone out communicating how such situations arose. Had National Treasury been informed?

Adv G Breytenbach (DA) was horrified. The information was breathtaking and disappointing. There had been complaints about the State Attorney’s Office by the Committee, attorneys, civil society and the judiciary for years but nothing had been done. In 2014 Judge Bertelsmann had expressed the hope that something would be done, but, of course, nothing had been done. Had the Public Service Commission (PSC) recommendations of 2016 ever been implemented? If not, was the SIU looking at why they had not been implemented?

She noted that Mr Nonxuba and Mr Lekabe each had a case to answer. Had criminal charges been laid against the two men? If not, why not? Had the matters been communicated to the professional bodies? Were the professional bodies doing anything about it? Surely the people should be taken out of action. The amount of taxpayers’ money involved was enormous. She was not sure how they would explain to the SA public how it had happened.

Adv Breytenbach noted that it was a huge amount of work. How was the SIU going to cope? Just those three matters could keep the SIU busy but there were many other matters that the Unit was attending to. Did the SIU have the resources to cope with the volume of work? The SIU could not deal with it on its own. It needed cross-cutting support from South African Revenue Services (SARS), National Prosecuting Authority (NPA), Asset Forfeiture Unit, etc. Adv Mothibi had to tell the Committee how his office was going to manage as it was not adequately resourced. She knew that the SIU could not do it because of the lack of resources. SIU should tell the Committee how it could be handled and how the Committee could assist. Did the SIU have forensic and cyber capabilities? She understood the amount of work involved and could not see how the SIU was going to be able to cope. It could not be dealt with in the conventional way and the Committee needed Adv Mothibi to suggest ways in which it could be managed or it would simply become overwhelming and the projects would never be completed. How was the SIU going to cover the costs? The state’s resources were inadequate to deal with the situation.

She was concerned about the ability of the state machinery to deal with the issues in respect of resources. How was the NPA going to cope with the amount of cases? There was too much work with all the other issues at hand. It was frightening stuff.

Ms N Maseko-Jele (ANC) echoed the concern expressed by her colleague. She did not want to mention her name or she would think that she had copied from her. The problems were deeper than one could imagine. She supported the request to know about the implementation of the PSA recommendations. SIU would make referrals to NPA. She wondered how much work had been done and whether the SIU would complete the work by the deadline of 30 August 2020. Could the SIU meet the deadline? What was the Unit’s relationship with SAPS? Was SAPS assisting?

Ms Maseko-Jele noted that Adv “C” had admitted that he was guilty. Why did the SIU have to negotiate with someone who had done something wrong? He should just go to jail. If he had not been found, he would not have said that he would pay back the money. At what level were the officials who were involved in the scams? Was it happening at cleaner level? She was concerned that the level of corruption was deep. If an advocate could be so corrupt, the community was in trouble.

She was concerned about the fact that only senior officials reported to the Committee so the Members never got to see those involved in corruption. Corruption started small and the actual officials who never reported to the Committee would continue to do wrong.

Mr Q Dyantyi (ANC) started with the horror show that adv Breytenbach had raised. He appreciated the work done by the SIU. He suggested that the SIU had to share with the Committee the current backlogs. He understood that the SIU had already gone beyond the Annual Performance targets. The work was increasing because they were dealing with a sick society. One would have thought that the State Capture Commission would be a deterrent but it had not been.

He noted that Mr Kaizer Kganyago had become a celebrity as a spokesperson at the SIU, even more so than he had been as spokesperson at the SABC. There was so much work that the pressure would soon start building on the SIU because nothing was happening, and he admitted that the Committee would be the first to apply pressure. Before that happened SIU should take the Committee on a journey of the work. Adv Mothibi should provide clarity about what was needed. An extraordinary collaboration with SAPS and NPA was needed.

Mr Dyantyi asked for the SIU’s own risk register. The risk could be a capacity risk or other role players that were not supportive. Everyone had belief in the SIU.  Some people had declared 2020 the “year of orange overall” and the SIU was critical in that space. He requested a projected conclusion of the cases at the SIU level. At what point could Adv Mothibi say that SIU had concluded an investigation.

Mr Dyantyi noted that the findings showed the pattern of a syndicate. Adv Nonxuba was so comfortable in what he was doing that he had invoiced for R15.09 million each time.

Mr Dyantyi was interested in those involved beyond the ones listed, especially the masters by omission or commission. How long had it been going on before it had been detected? It went to leadership in the Administrative authority and the Executive authority. It was not only about the advocates. What would happen to the official in the Department who should have monitored those payments? In the Committee Strategic Plan, the issue of litigation was a focus area. The Committee had discussed syndicates with another entity and the Committee had decided that it needed to demand litigation.

Mr Dyantyi asked what the failure was in the system. What was SIU’s recommendation to go beyond the symptoms? One could not allow the same things to happen again.

The Chairperson was stressed by the involvement of the profession. He had watched a programme about how attorneys had syphoned off money. It was a trend. The Committee needed to look at it because some of the law firms might have also been syphoning money from the private sector.

He thought that he had seen something about the implication of a judge in the Eastern Cape. Was the Chief Justice aware of it?

Response by the SIU

Adv Mothibi stated that referrals to professional bodies happened on an on-going basis. As the investigation progressed, the evidence was presented to the professional bodies. But he took the recommendation of the Committee that he should request the professional bodies to suspend membership even while the investigation was in progress. There was merit in notifying the professional bodies and recommending a suspension even while the SIU was investigating.

He informed the Members that the proclamation had actually widened the scope of the investigation. The SIU had to focus on issues in other provinces and other factors and the proclamation had enabled that. There had been referrals to the Accounting Authorities and sometimes to the Executive. Referral to the professional legal services had been undertaken.

He explained that there had been no procurement processes in place in the State Attorney’s Office. The SIU had informed the Department of Justice and Constitutional Development (DoJ&CD) and the Department had already acted to regularise the situation and it had put some processes in place that had to be followed in cases of procurement, such as requiring a quotation and other processes.

The SIU had not yet engaged with National Treasury but would formally engage with National Treasury in terms of what the SIU had found so that those observations and experiences of the lack of adequate, or any, controls relating to procurement processes could provide input into the Procurement Framework that National Treasury was currently developing.

In response to Adv Breytenbach’s questions, the SIU had not looked at the PSC report and recommendations but would do so immediately. The SIU usually engaged with the PSC but had missed that report.

The observations in respect of the lack of capacity at the SIU were accurate. If the SIU did not deal with lack of resources, there would be non-performance. The previous year SIU had determined that there was a need for additional resources. It was the job of management to foresee the needs of the Unit. There had been a 78% increase in proclamations in the last quarter. The SIU had proposed that MTEF resources from the outer years be moved forward. That would have budgetary implications but Adv Mothibi believed that the Unit would get more resources and the Unit could then recruit. The SIU had also put together a panel of service providers who could provide services where there was a dire need of specialised skills and even project managers. He added that Transnet was the only investigation where the SIU had needed to beef up resources.

Adv Mothibi informed the Committee that the report due in August 2020 was an interim report and if there was more to be done, the proclamation could be revised. The revised resourcing plan had been submitted. The required resources included forensic investigators, forensic accountants, etc. SIU had only three forensic accountants and that was not enough. The Hawks, SIU, etc. were expected to trace the money, so they needed forensic accountants. The three forensic accountants were doing their best, but that resource would be complemented. With the investigations into the SoEs, it was the forensic accountants who traced the money.

 

Regarding interaction with other agencies, he indicated that a forum under the Anti-Corruption Task Team (ACCT) umbrella worked well. The Eskom investigation had shown that the model worked. SIU signed up referrals to NPA on a weekly basis and a backlog was building up but he had engaged with the Director of the NPA and she had promised that the matters would be prioritised. In various projects, the NPA provided the investigating team with a public prosecutor. The NPA was currently resourcing and so he hoped that would be possible for his teams to be allocated public prosecutors. He had engaged with SARS leadership and that relationship was improving.

Adv Mothibi agreed with Ms Maseko-Jele that the problem was deep. He assured her that the SIU did make recommendations to the departmental managers on an ongoing basis regarding what should be done to improve controls.

He informed Mr Dyantyi that he had asked the team to project when the matters would go for prosecution. There was an extensive checking and quality assurance process but he had told his managers to aim at getting the matters to prosecution as soon as possible. Some people were quick to offer payment so that other processes would be circumvented, but SIU was determined that there had to be consequences even for those people.

He had requested project risk assessments from his managers and he would send the risk assessments to the Committee for its information. SIU contributed to consequence management and that supported the theme of “the year of the yellow overalls”. SIU had a Letter of Engagement with DoJ&CD which had timelines and he would send that through to the Committee. He agreed that there were patterns of syndicates or gangs. The SIU was currently working with the Hawks on those matters. The ‘and commissions” would be followed up once evidence had been collected and the investigators were able to pick up on “who did not do what”. There had been a concern that the “big fishes” were being allowed to go scot free while law enforcement agencies focused on the “small fish”. Investigators had been instructed to look up and down the hierarchy to see who was responsible for those actions, starting with the DG or CFO. In one case, the SIU had taken action against board members of an entity. The proclamation had timelines for the focus of the investigation but there was evidence that the corrupt actions preceded the timeframe in the proclamation. If need be, the proclamation could be amended.

Adv Mothibi assured the Committee that the SIU also wanted to beef up the litigation processes. That was the SIU niche and it had end-to-end control of that space. The SIU was going to maximise the use of the Special Tribunal where his staff could appear in the tribunal without representation. That would speed things up and state agencies needed to use that facility. The Special Tribunal could only deal with a case that had been investigated by the SIU. He had been concerned about the civil leg of some the criminal cases investigated by other law agencies because they went to the state institution, which itself was responsible for the irregular tender. There was consequently a strong possibility of inaction, so he was trying to find another way of dealing with the civil litigation using the Special Tribunal with the involvement of the SIU.

The SIU provided comprehensive recommendations but he wanted to step up those recommendations. The investigation had revealed several inefficiencies which the SIU would recommend that the authorities in departments and entities address immediately so that there were changes. As DoJ&CD built up the State Attorney’s Office, it would have to take into account inefficiencies observed in the investigation. The involvement of the legal profession was deplorable, especially the scale of involvement but other professions were also involved, e.g. doctors, and all needed to be attended to.

In the Eastern Cape, the investigation had identified certain officials, such as a Registrar. There was an indication that a judicial officer might be involved but Adv Mothibi required more evidence before engaging the Chief Justice and the Judicial Services Commission. The Executive Authority had already been informed.

Adv Mothibi reiterated that the August 2020 report would probably be an interim report so that the SIU could show progress to the Committee and the Executive Authority.

Mr Lekgotho stated that he did not want to give away details of the levels of the officials involved as the SIU had not yet made the referrals. He found that most of the officials were in the Office of the State Attorney, particularly in the two projects that he was dealing with.

Adv Breytenbach asked about the average caseload per investigator.

Adv Mothibi replied that each investigator was allocated to two or three projects, but they might be involved in a number of investigations and focus areas in each project. They were stretched.

The Chairperson stated that the Committee needed to deliberate, but not in the meeting, on what it could do to support the SIU. It was very deep and the matter was very serious. They had not yet addressed other provinces, such as KwaZulu-Natal. He had noted in the report that an Advocate had been earning R66 000 per day, seven days a week for three years. The State could recoup a lot of money but the state needed to spend to recoup the money.

Adv Breytenbach agreed that the Committee should have a discussion but that all agencies should tell the Committee what they need. She would prefer that there be engagement rather than presentation of the remaining two projects, i.e. the Master’s Office and the building of courts.

She asked what support staff was being given. To be in charge of three proclamations that size would kill a person. A person would simply have a breakdown. She also knew that the cream of the crop had been headhunted from the SIU by private institutions. People simply could not continue to work under that pressure.

The Chairperson asked Adv Mothibi to present the final two reports very briefly.

The Building of Courts

Mr Lekgetho provided an update. He indicated that the investigation focused on six areas:

1To determine if the SCM processes were followed in the appointment of the implementing agent (IDT), the professional agent, service providers, procurement of furniture, goods or services.

2:  To investigate the construction of the eight courts and the acquisition of land for Mpumalanga High Court in terms of MoU and payments made.

3:  The malperformance and/or no performance by service providers, professional consultants , etc.

4:  Value for money received by the DoJ&CD and losses incurred.

5:   Profiling of officials and service providers.

6:   Conduct corruption investigation.

The preliminary investigation had revealed that the implementing agent - the Independent Development Trust (IDT), which was a division of the Department of Public Works - had outsourced services to an agent who was a former employee of IDT. R3 billion had been budgeted for the building of eight courts. The total spent to date was just over R6 billion. Only four courts of the eight had been built and the overrun was already almost 100%. Variation orders had been approved by IDT without the approval of DoJ&CD. R350 million was apparently irregularly transferred by DoJ&CD to pay for work on the project. Investigations were ongoing and the SIU had contracted a quantity surveyor. The Limpopo High Court had been built on a spring and was flooded when it rained; there was visible evidence of poor workmanship, and there was an issue about the general maintenance of the building.

Adv Mothibi stated that there had been poor project management and poor monitoring by IDC, but he asked about the role of DoJ&CD in monitoring. The investigation was ongoing and he would find out “who did not do what?”

Discussion

Adv Mohamed noted that timeframes were not indicated but he thought that it had been during the Fourth Administration, in 2012, that the IDT had first come on board. Had the amount of R350 000 been transferred in a single tranche? Was the amount of R6 billion the total amount for all courts built?

He stated that there were only two fundamentals: non-compliance which could have led to fruitless and wasteful expenditure or someone had received kickbacks somewhere. National Treasury could easily confirm the amounts because the amounts were for capital expenditure. When a court e\was to be built, normally a court would be requested at a district or local level on the basis of the volume of work. All requisitions were approved at national level. What had been requisitioned and what had been approved? He was surprised that IDC had approved a variation without DoJ&CD approval. Perhaps computers should be confiscated to investigate that.


Ms Maseko-Jele asked about the status of the new courts. Could the SIU provide details in respect of which department was responsible for the building of courts? Was Department of Public Works involved? Could the SIU make recommendations as to where the Unit thought the Committee could intervene or support the SIU? On the previous occasion when the SIU had briefed the Committee, some questions had not been answered on other issues had arisen. How would the Members get those answers?

The Chairperson assured Ms Maseko-Jele that the Committee would attend to the issue of the responses from the previous appearance of Adv Mothibi.

Adv Breytenbach asked Adv Mothibi about the double over-run and the Limpopo Court that did not work because the plumbing, electric, lifts, etc. were all defective. Who had signed off on payments for the building? It would have to be demolished. It was dangerous. She did not believe that the Mpumalanga court would be any better. Who in DoJ&CD had signed off? How, after a double run-over, had the state ended up with a building that was falling over? Would someone be held accountable?

Mr Dyantyi stated that, despite many years of knowing of, or being involved with, IDT projects, he could not tell of a successful project that had been completed within budget and within time by the IDT. It could not build a toilet and he had personally been involved in a project where IDT had failed to build proper toilets. Who was carrying IDT? The organisation was known to use double the time and double the budget, so what did one expect from the IDT? Why was it being given work that it could not do? Why were people appointing IDT? That thing had to be fixed. That institution could not do anything so it outsourced all the work that it received. IDT had to be stopped. There was a bigger problem that needed to be attended to. He commented that there might well be another Portfolio Committee dealing with a similar problem with the IDT. He added that he was not joking when he had said that the IDT had been unable to build toilets.

Ms N Tafeni (EFF) asked about the follow-up investigation in Limpopo. She was shocked at the waste of time and money. What about the other investigations that had taken place into court buildings?

The Chairperson said that there would have to be a briefing on construction work by DoJ&CD but transferring R350 million without approval was problematic.

Response by SIU

Adv Mothibi explained that the proclamation covered from 2008 and was based on allegations received.

Mr Reddy confirmed that R350 million had been transferred for one court and National Treasury had confirmed that transfer.

Adv Mothibi said that the poor workmanship on Limpopo High Court was visible – it was a structural fault. A scientific investigation would uncover details of the defects. IDT was a department within DPW.  He explained to Ms Tefani that SIU needed to determine the contractual agreement and the roles of DoJ&CD and IDT. In the value chain there were roles and responsibilities and the Unit would find out who was responsible at each level. Adv Breytenbach’s question was relevant. The SIU would determine who had signed off. Regarding reports from the previous presentation, Adv Mothibi assured the Committee that he had submitted all requested reports.

He assured Adv Breytenbach that the SIU intended answering the question of who was responsible. The maintenance issues came from a misunderstanding between DoJ&CD, DPW and IDT. The SIU would spell out the costs in detail. The Investigation team would examine all documents and would determine how long the project should have taken from the programme signed by DoJ&CD. There should also be project plans at each level. Even where work was outsourced, a department or entity was not completely freed from monitoring. The SIU would determine exactly who played what role in the process.

Adv Mothibi noted that Adv Mohamed was worried about consequential management of those responsible for the maintenance of the four courts. DIU would find out if DPW had taken ownership of the buildings or whether DoJ&CD was maintaining them? If it was not DoJ&CD, he would have to engage with relevant Portfolio Committee.

The Chairperson asked Adv Mothibi where he needed the assistance of the Committee.

Adv Mothibi replied that the main risk was the issue of resources and some work had been done to mitigate that risk. He was engaging with the Executive Authority that cyber assistants, forensic accountants and forensic legal professionals and others be employed. The short-term the funding model that had to be revised. The SIU received a grant from National Treasury and charged fees for engagement, but the level of payment of state institutions was not satisfactory and it was not sustainable. The Auditor-General had started litigating against state institutions. That would assist with planning.

Adv Mothibi stated that the CIO was in attendance, but SIU needed the tools of work, e.g. for the analysis of work. 253 computers had been seized from the Master’s Office and imaged in four days, but the imaging had been outsourced to a service provider on the SIU list of service providers. Computer imaging was completed over the weekend and the computers taken back on the Monday, so that work in the Master’s Office had not been disrupted but now SIU needed warm bodies to do the analysis. The Unit had three people working in the cyber space. Analysing what was on the computers was not an automated process. SIU needed the tools of work and the personnel to do the work. The report would be sent to the Committee.

Adv Breytenbach agreed with Adv Mothibi that imaging was quick but the human resources were hopelessly inadequate.

The Chairperson thanked Adv Mothibi for the presentation. He understood that it was work in progress but it was a depressing state of affairs. The Committee would attempt to help the SIU to deal with the matters that it wanted resolved. They could help one another to ensure that, at the end of five years, the state would be cleaner than it had been when the Committee and the SIU had started the process.

Committee Business – Letter from the Speaker regarding the Deputy Public Protector

The Chairperson stated that the Committee had received a letter from the Speaker, which had been circulated to Members. The Speaker had requested advice on how to handle the issue of the remuneration and conditions of service of the Deputy Public Protector (DPP).

The Committee was required to advise. The Chairperson and the Secretariat had prepared a draft response but the letter had been written to the Committee so the Committee had to agree on the response. The Chairperson would read the draft letter and then request input from the Members.

The gist of the response was as follows:

Until recently, section 5A(5) of the Public Protector Act had required that the National Assembly, on the advice of the Committee, make, from time to time, a determination on the remuneration and conditions of service of the Deputy Public Protector. However, on 1 April 2019, the remuneration of the DPP became the responsibility of the Independent Commission for the Remuneration of Public Office Bearers (ICRPOB), which would make recommendations to the President that would be approved by the National Assembly. The salary and conditions of service could not be reduced. ICRPOB had recommended an increase of 3% for all categories earning above R1.4 million and 4% for those earning below R1.5 million. The DPP’s salary would rise to R1.5 million. That meant that the DPP would earn less than previous DPP who had earned R1.8 million and less than she had earned in her previous position in the Public Service at SMS level 16. It was suggested that the Speaker approach the President to attend to the recommendations by ICRPOB without delay to ensure that there was no prejudice against the DPP.

The Chairperson explained that the matter was currently with the President. Adv Malunga had earned R1.8 but the recommended rate for the current DPP was R1.4 plus a 4% increment which would bring it up to R1.5 million. The letter suggested that the Speaker inform the President of the situation and deal with the matter expeditiously.

Mr Dyantyi supported the contents of the letter drafted in response to the Speaker’s letter. He said that he needed to look at the role of the Committee in the matter. The previous DPP had been paid R1.8 million. How had that happened? He needed to understand that as the process of salary adjustment had not gone through Parliament or the previous Committee. If it had been addressed by the previous Committee, there would have been a record. If that fact was known to the Committee, it was known to the people out there, including the incumbent who might feel prejudiced against. That was a side issue that had to be followed up. How had it happened that the DP’s salary was increased to such a level, and at what level had it happened?

Adv Mohamed confirmed that he supported the letter as read. The remuneration was determined by the ICRPOB and it was an opportune time for the matter to be settled as the Commission was currently debating salaries. Hence it was urgent that one engaged with the Commission. The letter had to be sent urgently. On the other processes, he noted that the Office of the Public Protector reported to the Committee and so the matter could be dealt with when she appeared before the Committee.

Ms Tafeni asked that the EFF be excluded from the Committee decision.

Ms Maseko-Jele added her voice to those of her ANC colleagues. Even if some excluded themselves, the entire Committee had been together in appointing the DPP and Members could not now want to be excluded. She did not know how it came about that the DPP had received a salary at that level but the Committee did not need to get involved in that.  She endorsed the letter.

The Chairperson stated that there was confusion because the salary had been determined under a different dispensation. In terms of the current dispensation, the Commission made a recommendation to the President and the Members could only interact with it when the President sent the determination to the House for approval or rejection. Did that satisfy Mr Dyantyi? The situation had changed since April 2019. The Committee could only engage with it when it was sent to Parliament. The letter suggested that the Speaker should ask the President to expedite the matter.

Mr Dyantyi asked how the previous DPP had been paid R1.8 million. He added that the Chairperson could answer not that.

The Chairperson stated the letter would be signed and forwarded to the Speaker. A follow-up would have to take place on the issue raised by Mr Dyantyi

The meeting was adjourned.

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