Video: Portfolio Committee on Justice and Correctional Services, 30 June 2020
Audio: Progress report on investigations by SIU into matters referred to it concerning DoJCD; Mechanisms to facilitate co-operation between SIU & NPA; Operationalisation of the Protection of Information Act
The Portfolio Committee on Justice and Correctional Services was briefed via a virtual meeting platform on progress made by the Special Investigating Unit (SIU) with its investigations into various entities of the Department of Justice, and the Unit’s proposed collaboration with other agencies. The proclamation declaring much of the Protection of Personal Information Act law as from 1 July necessitated a briefing by the Information Regulator.
The SIU briefed the Committee on progress made in key investigations into the Office of the State Attorney, the building of law courts, and corruption in the Master’s Offices. Substantive findings in the Office of the State attorney in the Eastern Cape showed that collusion between private attorneys and officials had resulted in erroneous judgments in court cases. The SIU had made applications for the recission of judgments in those cases.
Seven state officials in the Office of the State Attorney had been involved in collusion, and were being investigated. A life style audit was in progress. Proclamation R21 of 2018 had been amended by Proclamation R33 of 2019 because of the involvement of South African Police Service officials, especially in the Free State, where 237 cases involving a total of R15 million had been identified. The involvement of intermediaries in the procurement process was another aspect that was being investigated by the SIU, as there were strong indications of corruption. So far, one attorney had appeared in court following the collaboration between the SIU, the Hawks and the National Prosecuting Authority (NPA). The former Head of the Office of the State Attorney in Johannesburg had been removed from his position, and his case had been set down in court for a hearing.
There had been 100% overrun in the building of courts. Only four courts had been built, and the court in Polokwane was particularly badly built, The SIU was investigating both the Independent Development Trust and officials in the Department of Justice and Constitutional Development who were responsible for oversight of the project. Of the 181 matters reported in relation to the Master’s Office, 15 referrals had already been made to the NPA, including the most senior person in the Master’s Office.
Members asked for details on cases going back to 2005 that were indicated as unresolved on the SIU’s website. They wanted to know the status of charges against the attorneys being investigated. What was being done about the advocate who had promised to pay back his ill-gotten gains? Why were the advocates identified by letters of the alphabet, and not by name, as were other people being investigated for corruption? How long would the SIU take to finalise the matters? Was the state winning the war against corruption? Did the Unit have sufficient budget to do the job? How had all that corruption occurred when the Portfolio Committee on Justice and Correctional Services in the Fifth Parliament, and on which several current Members had sat, had been responsible for oversight over the processes? How was it possible that the Committee had been repeatedly misled about the overruns in the building of the courts project?
Both the SIU and the NPA had found it necessary, and far more efficient, to work more closely together. The two entities briefed the Committee on the mechanism developed to facilitate co-operation. The Directorate for Priority Crime Investigations (Hawks) would be invited to be part of the collaboration, as the SIU was obliged to hand criminal cases over to the NPA. However, the NPA was not an investigating agency and that work had to be done by the Hawks.
Members asked whether the two agencies had the capacity and resources to perform their tasks. How were the Hawks going to assist when they was under-resourced and under-capacitated? Members expressed concern about the impact of potential budget cuts on operations.
In response to whether the NPA was winning the war against corruption, the National Director of Public Prosecutions said she had to be candid and say that, at that point, the state was not winning the battle against corruption. The corruption across the state and the private sector was shocking, and the amount of work to be done was astronomical, but they had to keep moving forward and keep fighting.
The Information Regulator briefed the Committee on the preparations and budget required for the implementation of the Protection of Personal Information Act. The Promotion of Access to Information Act would remain with the South African Human Rights Commission until the Protection of Personal Information Act had been implemented.
The Chairperson greeted the Committee Members and the presenters. He apologised for the fact that he would have to leave for a meeting with the House Speaker at 12:00. The Special Investigating Unit (SIU) was requested to present first.
SIU: Progress on key investigations
Adv Andy Mothibi, Head: Special Investigating Unit (SIU), introduced his team and explained that he would present progress on the key investigations into the Office of the State Attorney, the building of courts and the Master’s Office. By law, the SIU had to present cases to the National Prosecuting Authority (NPA), but the SIU had interacted with state institutions to improve the way in which the agencies worked, and he would make systemic recommendations in that regard.
Office of the State Attorney
Collusion had been found in the cases under investigation. The SIU had brought in a tax expert on 29 May to verify the value of the matter in the case of each of the nine attorneys under investigation. The verification process would take approximately three months, after which referrals would be made. There were three focus areas.
The first was on legal practitioners in Gauteng and the Eastern Cape. Where there were findings of irregularities, matters would be referred to the Special Tribunal. Applications had been made for the recission of judgments in cases in which the identified attorneys had been involved. Substantive findings in the Office of the State Attorney in the Eastern Cape showed that the collusion had resulted in erroneous judgements. The third focus was on unlawful conduct by employees of the Office of the State Attorney in the Eastern Cape. Seven state officials in that Office had been involved in collusion and they were being investigated. A life style audit was in progress in respect of the officials. They would be referred to the respective Accounting Officers, and the SIU expected them to take action. Where appropriate, they would face criminal charges. In addition, there were other officials in the province, not from the Office of the State Attorney, who had been involved in collusion, including a nurse and an official of the high court. The SIU was focussing on the value that the state had been prejudiced by.
Adv Mothibi explained that Proclamation R21 of 2018 had been amended by Proclamation R33 of 2019 because of the involvement of South African Police Service (SAPS) officials, especially in the Free State. 237 cases involving a total of R15 million had been identified. The investigation team was still investigating. Allegations had also been received from the Northern Cape, Limpopo and the Eastern Cape.
The investigation of the Office of the State Attorney had also identified the involvement of intermediaries in the procurement process. One intermediary had cost the state R133 million from 2015 to 2018. State officials in the procurement office of the State Attorney had not operated correctly by paying intermediaries who did little, if anything, to earn the money. Investigation into the Eastern Cape medico-legal matter was progressing. One attorney had appeared in court following collaboration between the SIU, the Hawks and the NPA.
Action had been taken against Adv Kgosi Lekabe, the former Head of the Office of the State Attorney in Johannesburg. He had been removed from his position, and his case had been set down in court for a hearing.
The main risk was that of prescription (i.e. expiration of time to bring a case to court), so the SIU was pushing the Solicitor-General and the courts to move forward with the cases. Ten criminal cases had been referred in the matter of the Office of the State Attorney. Five cases had been referred to professional bodies, and two had been referred for blacklisting. The value of matters pending for civil litigation in court was R136 million.
The SIU team had a risk mitigation strategy. Covid-19 was a risk factor, in that it had caused delays.
Building of Courts
The budget had been R3 billion for eight courts, but there had been a 100% budget overrun. Poor project management and project oversight was evident. Poor workmanship had been certified. The Department of Justice and Constitutional Development (DoJ&CD) had used the Independent Development Trust (IDT) as the agent, but that had not absolved the Department of its responsibility of oversight, so the SIU was also working with the Acting Head of the DoJ&CD to identify the responsible officials. The Public Finance Management Act (PFMA) did not permit more than a 20% overrun. Such an overrun had to be authorised but had not been authorised, so there were issues relating to the fiduciary duty of the Accounting Officer who had since been made an Ambassador. A quantity surveyor was verifying the losses experienced by the state. Three courts had not been built, and therefore there were no losses in that regard, but it did mean that the courts were not available.
This was a new investigation, and since the Proclamation R7 of 2020, 181 matters had been reported and were under investigation. 15 referrals had been made to the NPA, including one against the most senior person in the Master’s Office, and that had been referred to the Accounting Officer. Most cases related to deceased estates, but there was a great deal of mistrust among officials, who were reporting each other. The system was not automated and therefore open to irregularities. Regulations had not been gazetted and there were too many discretionary powers available. The number of acting positions was another concern. Money handling processes were inadequate.
The Chairperson invited Members to ask questions and make comments.
Adv G Breytenbach (DA) raised additional issues. The investigations relating to the Department of Rural Development and Land Reform were outstanding and were quite old. Proclamations R18/2005; R5/2007; R8/2011; R53/2012; R8/2012; R7/2014; R599/2015; R24/2017; R32/2017 were all indicated as active on the SIU website. She would accept a written reply at a later stage, but she wished to know why cases had been permitted to drag on for so long.
What was the status of criminal charges against Adv Lekabe? Regarding the advocate who had offered to pay the money back, she suggested that Adv Mothibi discuss the matter with the NPA.
Adv Breytenbach asked about the impact on the SIU offices that had been closed due to Covid-19 and what the mitigation plan was. There were loopholes in the procurement process in the State Attorney’s Office. Was the SIU sure that no further abuse was going on in respect of procurement while the investigation in the Office of the State Attorney was ongoing? Had the quantity surveyor been appointed to the case of the building of courts, and had he finalised his work? What had happened to the funds for the courts not built? Had the SIU appointed additional forensic officials to address the SIU’s extreme shortage of forensic expertise, and add to its capacity? Was it yielding results? Was the SIU able to examine the masses of computer files seized from the offices?
Ms N Maseko-Jele (ANC) asked about the names of the accused advocates. Why were they labelled A, B, etc. and not identified by name? Everyone involved in corruption had been named, so why had those people not been named? Those people were watching the Committee, and could see that their names were being hidden. Other people, even the President and high officials, were named during investigations. People should be treated the same. The public wanted to know who the people were. If someone had done something wrong, their names should be public knowledge. The officials had not been named, and she did not even know who they were, even when doing oversight visits. How long did the SIU take to finalise matters? She needed to know so that the Committee could monitor progress.
She commented that some advocates had been reported to the Bar Council, and asked if they were still working in their offices. Adv Mothibi had referred to the regional representatives -- what were the recommendations arising from those meetings?
Ms Maseko-Jele wanted a report on the letter of engagement with the Department of Justice and Constitutional Development (DoJ&CD). A lot of money had gone to the intermediaries. It was very stressful to her. She asked if the state was winning. The results were minimal, and it did not seem that the SIU was winning. In respect of the Master’s Office in Pretoria, she said that the community in Pretoria had long complained that many properties had been captured by foreigners, and now they were charging money. There were many properties that should be government properties. People should be arrested, charged and go to jail.
She asked about the compliance certificates that the SIU was talking about, and had been talking about for a long time. How long did it take the SIU to get a certificate? What about the whistle blowers? How safe were they?
Mr S Swart (ACDP) thanked Adv Mothibi for the incredible work that the SIU was doing under difficult circumstances. He appealed to the SIU to never give up. He had raised the issue about the timing of proclamations and the capacity in the SIU with the President during question time in the House of Assembly. The President had assured him that the proclamations would be expedited, and Mr Swart asked that Adv Mothibi inform him if this was the case. The capacity problem was enormous, given the 78% increase in proclamations in the last quarter. How could the Committee assist the SIU?
He was pleased with the progress of the SIU and its collaboration with the NPA and other law enforcement agencies under very difficult circumstances. He was horrified and very sad that officers of the court were involved in the corruption. He had believed that the Justice Department would have set the standard. The involvement of the State Attorney’s Office and the other advocates was absolutely disgraceful, given that they were officers of the court. The State Attorney’s Office should have set the example.
He was pleased that the SIU had worked with the Tribunal, and a preservation order had been granted to attach Mr Lekabe’s pension of R4 million. He was also pleased with the support and cooperation of the South African Revenue Service (SARS), but besides the criminal investigations, the recovery of stolen money was key. When the SIU did a lifestyle audit, SARS could immediately access and attach every bank account where SARS found involvement in corruption. That was vital, or the money would be gone by the time the people were brought to book. The looming sovereign debt crisis was critical, so every cent had to be claimed. The funds spent had to be recovered and that which was currently being spent also had to be recovered.
Mr Swart asked why the practice of using intermediaries was allowed. He could not understand what purpose it served. The practice incurred a lot of unnecessary expenditure. It had been stopped in some offices, but it had to be stopped across the state in all offices. There had to be action. The Committee had to look at state litigation generally, and exercise its oversight. Every year, the Office of the State Attorney, the Master’s Office and the Department of Justice and Constitutional Development had presented reports to the Committee and everything seemed fine, but the Committee should not just accept everything at face value. The Committee was not exercising proper oversight because it was evident that rampant corruption had been going on. Adv Mothibi had said that the corruption involved billions of Rands of contingent liabilities in the Department of Justice and the South African Police Service (SAPS). The Committee needed to exercise effective oversight over state litigation and the other issues.
Mr Swart added that, with the Master’s Office, he fully supported the recommendation of some time-frequency auditing. He would also like to see the Covid-19 spending protected with real-time auditing by the Auditor-General’s Office, and had said so in the Finance Committee. Parliamentarians had to be good stewards of the finances being spent at that time. He wanted more speedy action when it came to disciplinary actions of the courts. He asked about the additional budget of R225 million for the SIU. Was it sufficient? He would oppose any reduction of the funding for the SIU or the NPA, which had been given an additional R1.2 billion in February. The Minister of Finance had said that he had heard the ACDP’s call for funding for the SIU and NPA, as they would be able to collect billions of rands that had been stolen from the state. He asked about the progress in respect of the matters enrolled with the Special Tribunal. On 16 May, Adv Mothibi had stated that 20 matters had been enrolled and there was a possible recovery of R21 billion.
The Chairperson indicated that he was concerned about time, as the sitting in Parliament started at 14:00.
Mr W Horn (DA) referred to the intermediaries, and asked about the possibility of claiming money from them, as someone had claimed R10 million for work previously done. It was fraud and grand scale corruption. The report for the President was due only in August, but the case of the intermediaries called for immediate criminal action, if not in common law, at least in terms of the Prevention of Corrupt Activities Act. What, if anything, had the SIU done in respect of criminal action when it had discovered the matter of the intermediaries?
He referred to the matter of the court buildings and the necessity for oversight, as mentioned by Mr Swart. He had served on the Justice and Correctional Services Portfolio Committee during the Fifth Parliament, and recalled that meetings had been held with the Department specifically to maintain oversight of the build programme. The Committee had repeatedly been informed that there were challenges, but had been assured that things would be sorted out and that the overrun would be minimal. The Department had been confident that things would be sorted out, but now the Committee had learnt that the matter was the subject of an SIU investigation. That was in stark contrast to the presentations by the Department that stated that the overrun costs would be minimal. Now the Committee had found that the costs had doubled.
He commented that the SIU presentation had referred specifically to the fiduciary duty of the Accounting Officer. However, the previous DG had been “rewarded” or appointed as an ambassador. Had the SIU reported to the President that the previous DG could well be responsible for neglecting his fiduciary duties? In terms of the PFMA, it was the responsibility of the investigating agency to report the matter to the President. The negligence of fiduciary duties could not be the responsibility of the Acting DG.
Regarding the report on the Office of the State Attorney, Mr Horn understood that the SIU had stepped into the shoes of the Office of the State Attorney to ensure that certain judgments be rescinded. That would be highly problematic, as the Minister had assured the Committee that the State Attorney’s Office had been restored to a state of functionality. He asked for clarity as to who played what role in the matter of rescinding judgments that should not have been made.
Ms J Mofokeng (ANC) appreciated the improvement by the SIU from the previous presentation. Regarding the State Attorney matter, what was going to happen to the timeframes in the light of Covid-19? She noted the dates of July and August -- would the SIU be able to meet those deadlines? Regarding the matter of SAPS, she noted that in the Free State, the SIU had been given 2 571 cases, but had identified only 227 cases for investigation. Why had so few cases been taken up? In other provinces, the SIU had followed up on about 70% to 80% of the cases. Was it a matter of a lack of capacity? She asked the SIU to indicate its ability to meet the reporting deadlines. She had seen the date of August for reporting, but originally the date had been in 2021.
Ms Mofokeng asked about the recommendations regarding the Premier of Gauteng? How did the SIU monitor the application of the recommendations? The Committee was tired of hearing that someone had been investigated but then everything went quiet and it seemed as if nothing had been done. The SIU and the NPA had to ensure that the public was informed when action was taken, otherwise it would seem that the team was not effective. As Adv Breytenbach had stated, the Committee required a report on Adv Kgosi Lekabe, a former head of the state attorney’s office in Johannesburg. Was he being criminally prosecuted? For many years, people had suffered under the Master’s Office, where documents went missing and so on. What about cold cases before 2014, if the investigation was only from 2014? People and families had suffered under that office. It needed attention. Did the SIU have the capacity? It had only one expert in the matter of the Master’s Office. Was that sufficient?
Ms Mofokeng asked what the SIU would do with cold cases. She noted that according to Adv Breytenbach, the SIU had outstanding cases from 2005? What were the timeframes for managing cases?
Adv Mothibi assured Adv Breytenbach that he would send a written report on all the investigations that she had raised. The new strategy was to expedite all cases, and he thought that the cases should have been finalised, as he had asked the officials to ramp up those cases. He would also ensure that the website reflected the correct status. He could submit the information within seven days.
Adv Breytenbach thanked him, and assured him that the timeframe was acceptable.
Adv Mothibi said Adv Lekabe had not yet been charged, but the investigation was ongoing and he would update the Committee when he was charged or the matter resolved. Regarding the advocate who had offered to pay for the amount that he had incurred, he said the SIU would not accept the offer and would work with the NPA on the matter, especially in engaging the Asset Forfeiture Unit. It might be that there were additional matters of corruption that had not yet been uncovered.
Regarding the impact of Covid-19, he said that SIU had not been identified as an essential service under Lockdown Level 5, but it had engaged with the Department of Justice and Constitutional Development and since Level 4, it had been mentioned in the regulations as a permitted service. Even during Level 5, the SIU had received a few allegations regarding corrupt expenditure of Covid-19 funds, and it had assisted the Department of Public Works (DPW) with the matter of the border fence close to the Beit Bridge border post, and had engaged with the Director-General of Gauteng to investigate the matter of information technology (IT) procurement in Gauteng. It had completed the latter investigation and had been in contact with the DG and the Head of Communications in Gauteng, and had been informed that the Premier was managing the matter and would communicate his decision.
Adv Mothibi addressed the question of the loopholes in the State Attorney’s Office. The SIU had made the finding in the early days of the investigation, and had met with the then Minister of Justice and Correctional Services, Mr Michael Masutha, and the Deputy Minister of Justice, Mr John Jeffery. The SIU had found that there were no procurement processes in place to engage legal services. The State Attorney’s Office had since implemented processes for the appointment of legal practitioners, including going out on a tender process, and other processes had been remedied, although the SIU would engage with the Office again.
Concerning capacity problems, Adv Mothibi explained that if he did not attend to the quantity surveyor issue, the investigations would be delayed. He had kick-started the process to appoint forensic staff using the additional funds allocated to the SIU. The advertisement for staff would be published in the next few days. He had appointed a panel of service providers through the supply chain management (SCM) process to bring in consultants, such as the quantity surveyor, who had been appointed on 11 June. There were also engineers on the panel. Their charges were high, and those costs suggested that the SIU should appoint, where appropriate, as many of such people as possible. However, professionals such as engineers would stay on the panel, as they were not frequently used and it was not cost-effective to employ such people on a full-time basis.
He explained that in the case of the senior official, information had come from the computers that had been imaged and analysed by IT forensic experts, but the investigators had also conducted interviews with witnesses. The new approach was that the investigators would lead the investigations in the cases related to the computer evidence, scope the area and determine what analysis was needed so that the IT technicians knew exactly what to look for and did not have to examine endless quantities of material.
Adv Mothibi informed Ms Jele that the names of the attorneys currently identified by letters of the alphabet would ultimately be made available to the Committee and to the public so that those people knew that they were accountable. As soon as the matter appeared in court, it would become public knowledge, and the SIU could name the suspects without any legal risk to the SIU. Likewise with criminal cases and disciplinary processes, the names would be revealed at the time that action was taken. The SIU had a principled position of not naming people before evidence was found to be conclusive and the matter was handed over to court. Similarly, in terms of the criminal processes, once the suspect was arrested and had appeared in court, his or her name would be revealed. The same principle would apply in terms of the departmental disciplinary processes. When the person was suspended, the name would be revealed. The SIU agreed that ultimately the names of those involved in corruption should be made public.
How long did a case take? He said that as soon as a matter showed that there was criminality involved, it was referred to the NPA, together with an investigation pack. The SIU did not wait for a Presidential report to take action. A unit in the SIU focused on ensuring that all matters were referred as soon as possible. It was part of the new value chain. In the past, the SIU did not follow up on cases referred to other state institutions. The SIU would now continue to follow those processes and would report to the Committee. Referrals to the Bar Council were followed up. In at least one case, an advocate’s membership had already been suspended. The SIU expected the same to apply to all attorneys involved in the cases.
Regarding the loss of money to intermediaries, Adv Mothibi assured the Committee that it had been pointed out to the Acting DG that the practice should be stopped and that the SIU would follow up, as it was unnecessary to pay intermediaries.
Were they winning the fight against corruption? In the past, there had been a state of inaction on the part of the law enforcement agencies, but the various bodies were now geared up to produce the results that the public wished to see. Part of the strategy was for the agencies to work together on the Anti-Corruption Task Team, and all agreed that where impunity was condoned, it fuelled acts of corruption and certain criminal acts. The SIU had to be seen not to condone impunity, to show that people could not get away with corruption. The SIU would not allow a state of impunity in any field. The new strategy was that the impact of the SIU had to be felt, and it was being felt.
Adv Mothibi assured Ms Maseko-Jele that the SIU would follow up on the properties that she had mentioned in connection with the Master’s Office in Pretoria. There were various legs to the investigation in a number of provinces.
He commented that the investigation into the building of courts had revealed poor workmanship on the part of the IDT as an agent and the Department, which was not absolved. The investigation would be speeded up. He had been informed that there had been conflict over a contract between the IDT and Metrofile which had caused some documents to be delayed, but that matter had been resolved and the SIU would be receiving the documents.
He assured Mr Swart that the SIU would continue to do its best to fight corruption and to assist the Committee. He appreciated the support. In 2016, the SIU had identified that the proclamation process took a long time, and there were no timeframes for DoJ&CD or the Presidency. The SIU had entered into an agreement with both DoJ&CD and the Presidency in which they had agreed on timeframes, and that agreement had been adhered to. He had spoken to the Acting DG of DoJ&CD during a review a couple of weeks earlier, and there had been a further improvement in respect of timeframes, and the Minister’s Office had also accelerated the process.
He addressed the matter of the budget of the SIU. The Chief Financial Officer (CFO) had informed him that the SIU had been approached by Treasury, and the indication was a cut of R10 million for the year. He would have preferred no cuts, but the Unit could manage a R10 million cut. It had continued with its recruitment process because there had been an upsurge in the number of proclamations.
He told Mr Swart that the SIU had engaged with the Acting DG regarding the building of the courts, and the officials would be identified. He had indicated in the presentation that the SIU had interacted with SARS and other agencies and regulators. The SIU had a memorandum of understanding (MOU) with SARS, and there was a dedicated unit to assist the SIU. He added that the Asset Forfeiture Unit in the NPA had assisted in an improved manner.
Regarding oversight, the SIU was willing to engage with the Committee. He understood that speedy action had to be taken. He agreed with Mr Horn regarding the intermediaries. The intermediaries were not necessary, and they would be pursued criminally. The SIU would assist the Committee in determining where to focus oversight. It would meet the August reporting deadline, as it was an interim report to indicate where the Unit was and what had been done. Where an investigation was likely to exceed one year, an interim report was issued, although he was considering a reduction of that timeline. The final report was always done as speedily as possible, without compromising the investigation. He agreed with Mr Horn that the rescission of judgments should not be the job of the SIU, but there had been a measure of inaction on the part of the State Attorney in those particular matters, so if the SIU had not acted by engaging with the Solicitor-General, nothing would have happened and the public interest would have been prejudiced.
Adv Mothibi explained that in respect of the SAPS matters, various cases and allegations had been received and they had to be sifted through before the numbers could be finalised. The increase in capacity in the SIU would speed up the process. The SIU was following up with Directors General (DGs). The public had to receive proper communication, so the SIU would indicate when a case had been handed over and everyone would know that the involvement of the SIU had been concluded. Cold cases would be attended to.
The Special Tribunal had 24 cases before it to the value of R2.1 billion, and there were cases amounting to R14.7 billion in the ordinary courts. The SIU had engaged with the Judge President in that regard. The SIU was supporting the judges in terms of case management.
The Chairperson appreciated that work of Adv Mothibi and the SIU team, and hoped that under Lockdown Level 3, the SIU would speed up its work. He appreciated that Level 5 had had a negative impact on the speed that matters were dealt with. Corruption by officers of the court was unacceptable, and those people had to be brought to book, no matter what it took. Those people were supposed to be on the side of the people. The matter would be on the radar of the Committee, and it would require frequent reports. The NPA had to follow up on the matters presented by the SIU. One could not risk the possibility that such corrupt officials might one day become a judge or a magistrate after being involved in crimes against the state. The process was part of cleaning up the justice system and cleaning up corruption in the country. He welcomed the work done, and hoped that the work would be speeded up, finalised and hopefully most of those people would end up, as Ms Maseko-Jele had said, in orange overalls. There could not be a 100% overrun on the cost of the building of courts.
Mechanism to facilitate co-operation between NPA and SIU
Dr Jerome Wells, Chief Legal Counsel: SIU, referred to slides 63 to 68 of the presentation, and said one of the functions under the SIU Act was for the Unit to refer evidence regarding a criminal offence to the National Prosecuting Authority (NPA).
The SIU and the NPA had concluded an MoU on 28 August 2017. In the MoU, the parties had recorded the process of engagement, as well as the obligations of the respective parties in respect of referrals made by the SIU under section 4(1)(d) of the SIU Act. The evidence referred to the NPA pointed to the commission of offences such as maladministration, fraud, theft and corruption. The SIU considered SAPS an integral party to ensure increased outcomes of SIU referrals.
The SIU, NPA and SAPS were presently involved in the review and development of a tri-partite MoU which would define the obligations of the parties, more specifically the role and accountability of each party in the referral, and the investigation and prosecution of referrals made by the SIU. The review process was at an advanced stage, and would be finalised by the end of August 2020.
NPA on collaboration between SIU and NPA
Adv Shamila Batohi, National Director of Public Prosecutions, said that when she had taken over the NPA, the relationship between the NPA and the SIU had not been satisfactory. Over 600 referrals from the SIU had not been attended to by the NPA, so there had been a lot of engagements with law enforcement agencies, recognising that each agency on its own could not address the huge challenge in the country. There had been a re-look at the referral process. She had found that the SIU Act referred the matters to the NPA, but the NPA was not an investigative entity and so it was the Directorate for Priority Crime Investigation (DPCI, or the Hawks) that would investigate on the part of the NPA, and that was where things had got stuck. The tri-partite agreement should resolve some of those issues. The justice cluster was examining various ways for the law enforcement agencies to work together. The Anti-Corruption Task Team was one mechanism that would improve collaboration. The DoJ&CD had been engaged in the efforts.
Adv Batohi said she had to be candid and say that, at that point, the state was not winning the battle against corruption. They were discussing corruption only in the justice sector, but the corruption across the state and the private sector was shocking and the amount of work to be done was astronomical, but they had to keep moving forward and keep fighting. She was very grateful for the additional budget given to the NPA. However, although the additional budget would enable it to address the critical vacancies, it did not address all the vacancies. Nevertheless, it was a big improvement and had enabled the NPA to address matters of corruption. She hoped that the budget of the NPA would not be cut, and made a plea that the budget of the DPCI would also not be cut as the DPCI had an enormous amount of work to do for the NPA. Without a fully functional DPCI, the NPA would not be able to perform its function in respect of the matters relating to corruption.
Adv Rodney de Kock, Deputy National Director of Prosecutions, presented the details of the relationship with SIU. He agreed with the presentation made by Dr Wells, and said that action had to be taken against officials who had engaged in corruption, as it was unconscionable that officials in the courts could collude in corrupt actions with private attorneys. That meant that action in the courts was essential.
There was currently a time lag between matters being received at the NPA and the referral of matters to the DPCI. The NPA also wanted to include the investigative forces of the SAPS, specifically the detective branch, in the agreement so that there was a commitment to working together. There were laws to ensure that all agencies and departments worked together, but in those cases, there had to be specific MoUs to ensure the agents worked together rapidly and effectively. There would be a sharing of databases, and where the NPA did not feel that a case could go to court, there would be a discussion between the agencies about that decision, and further action could be taken. There would also be coordination mechanisms at national and regional levels. A project management approach would be adopted in order to manage timelines and to hold officials accountable. He was working on the nuts and bolts of making the system work. An attorney was in a special category of people who were supposed to assist the public. The cases involving attorneys would be prioritised.
Adv Batohi announced that Adv Ouma Rabaji had been appointed to head up the Asset Forfeiture Unit. She and Adv De Kock had brought to the management level a much needed ability and commitment to getting things working. The NPA would be working with the DPCI and the detectives. It should be much easier to finalise once the SIU had investigated. She wanted to see statutory offences brought to the courts even as the strategic matters of corruption progressed, so that there were consequences in regard to offences against the Acts governing finances in departments and other entities.
The Chairperson thanked the presenters, and congratulated all those who had recently been appointed.
Adv Breytenbach said that the mechanism sounded marvellous and looked great on paper, and she was glad that the agencies were taking such steps to improve relationships between the law enforcement agencies. Who was going to do the prosecutions? Who was going to do the investigations? The DPCI simply did not have the capacity. How was that going to be addressed? The DPCI had fewer than five people capable of doing the work. How was that going to be fixed?
Ms Maseko-Jele congratulated the newly appointed members of the teams. She was also concerned about the capacity in the tri-partite relationship. She requested that the teams report regularly and report on the engagement between the tri-partite members. The questions that she had asked earlier about slides 6 and 7 were appropriate to that section.
Mr Swart congratulated the new appointees. He asked about the budget cuts that the two bodies might be subjected to. He thanked Adv Batohi for being frank about the ongoing battle, and hoped that they would continue that battle together. He agreed that statutory cases ought to be addressed. The Auditor-General now had additional powers in terms of the amendments to the Auditor-General Act, so it was an easy-win situation.
He recommended to the Chairperson that the Committee meet with the Portfolio Committee on Police to address the issues. He agreed that the Hawks should be involved in the agreement. Adv Breytenbach had referred to the lack of investigative capacity within the Hawks. He recalled that the SIU had presented a completed case on Bosasa to the Hawks, and they had had sat with it for 10 years. Could the SIU not present an almost case-ready case? The Hawks could open a docket, but why did the Hawks have to re-start the investigation? It was not necessary. They could just open a docket. Was the duplication necessary? Could the Hawks and the NPA not rely on the forensic investigation of the SIU?
Adv Mothibi appreciated the support, but he agreed with Adv Breytenbach that the plan had to be executed or it was not worth it. For that reason, monthly meetings to monitor progress had been included in the plan. The parties were seriously committed to achieving results. The relationship had come into being as a result of what Mr Swart had noted. The SIU evidence pack collated the evidence that pointed to the crime that had been indicated. The NPA had to apply its mind and determine whether the case was ready for prosecution. He agreed that the DPCI had been a problem, because dockets had to be opened as early as possible and that had not been happening, so there had been an engagement around what evidence was necessary from the SIU in order to eliminate the duplication. In the past there was a view that the SIU collected evidence only for civil litigation, but he believed that the Unit had shown that it could also put together adequate evidence for criminal cases. The SIU and NPA would have to agree that evidence was case-ready, and they would then look at ways of avoiding duplication.
He agreed with Ms Maseko-Jele that the investigative capacity had to be strengthened, but there was a need to agree on the evidentiary process. He agreed with the NPA that there had never been a demonstratable prosecution around the Public Finance Management Act and the Municipal Finance Act, and the SIU would support any effort in that regard.
Adv Batohi responded to Adv Breytenbach, and said her point about the capacity of the state to deal with the matter was the crux of the matter. It was about the capacity and capability of agencies to undertake the battle against corruption, and the government had to facilitate that. Members of the NPA were citizens of the country, as were the Members of the Committee, and they were outraged about the issues. They wanted to see the cases going to court. They recognised the challenges, but they were not going to give up. They were there to fight until the end, but capacity and capability was primary to their success. She agreed that the mechanisms were good, but one needed capacity.
She said that Lt Gen Godfrey Lebeya, Head of the DPCI, was an honourable man who wanted to address the issues. She was speaking on his behalf, as the DPCI was seriously under-capacitated. Everyone knew what had happened over the past ten years. The rebuilding of the country was only just starting, and capacity was essential to rebuild. Currently all law enforcements agencies were under-capacitated. Law enforcement agencies had to ask how the state should organise the prosecutions. The way that it was currently happening was not appropriate for addressing the issues facing the country. The country, and the Portfolio Committee on Justice and Correctional Services, and perhaps the Zondo Commission, had to look at how the agencies should be organised. Questions had to be asked as to whether Government had the ability to assist with capacity.
She assured the Committee that the NPA was fully committed to the fight against corruption, but new approaches were necessary. Government was spending billions of Rands on making forensic accounting firms rich, but the forensic reports were not suitable for taking the cases to court, and the state should look at whether it should be considering a state capacity to undertake those forensic services. The NPA would report the cases to the Portfolio Committee, and there would be an improvement because there were good people working on the matters, but she really thought that there was a need to look at the bigger picture of how the state addressed matters.
Adv Batohi understood that the NPA would not be having any budget cuts. The NPA, the DPCI and the SIU were looking at taking one or two test cases to court, but there were some challenges, and she did not want to discuss them publicly.
Adv De Kock said that the NPA would be working much more closely with the forensic investigators, and also with the Asset Forfeiture Unit (AFU). Once the forces were centralised and the agencies worked together cooperating on cases instead of working in silos, timeframes would be reduced and better products would be delivered. He was very sure that it was going to work. The best practices developed would be introduced in other environments. The NPA would be looking at short-circuiting some of the work of the DPCI which was making commitments around priority cases, but was struggling with resources. He indicated that the NPA was discussing the need for forensic accounting capacity within the state. The vacancies in the Specialised Commercial Crime Units (SCCUs) were being filled, sometimes with contract staff.
Adv Rabaji confirmed that she and the AFU would be working with Adv De Kock, and they would have one framework. She would be working on the same database as Adv De Kock on preservation or restraint orders, dependent on the cases. She had also begun working with the SIU, and the Fusion Centre matter was an example of their collaboration.
Adv Batohi added that the Financial Intelligence Centre was also involved in the processes.
The Chairperson said that the Committee would have briefings on the matter twice a year, and the DPCI would be included in the meeting. The Committee was taking the matter very seriously. He did not want people to think that there was no capacity to catch criminals, because that would encourage criminal activity. The Committee was very serious about fighting crime in the country. In future, it would dedicate a half day just to the matter of criminal prosecution.
He added that in China and other countries, every department was part of one republic. In SA, every entity and department saw itself as a different republic. The 42 departments in SA acted as 42 separate republics which led to many inefficiencies and inefficiencies, and this created a breeding ground for crime and corruption. He thanked Adv Mothibi and Adv Batohi and their teams for their work.
Adv Batohi concluded her participation, saying that it was a tough battle, but she was confident that the law enforcement agencies would win it.
Operationalisation of Protection of Personal Information Act
The Chairperson welcomed the Deputy Minister of Justice, Mr John Jeffery, who had earlier joined the meeting. His involvement had led to progress in respect of the Protection of Personal Information Act (POPIA). He also welcomed Adv Pansy Tlakula, the Information Regulator, and the SA Human Rights Commission.
He left to attend a meeting with the House Chairperson.
Mr H Mohamed (ANC) took over as Acting Chairperson. He said an announcement by the President on 17 June had stated that he had issued a proclamation that certain sections of the POPIA would come into effect on 1 July, and that the remainder would come into effect in June 2021. The Committee required a briefing on the readiness of the Information Regulator (IR) to proceed with the implementation. He invited the Deputy Minister to make the opening remarks.
Deputy Minister Jeffery stated that barring section 110 and section 114(4), which would come into effect on 30 June 2021, the Protection of Personal Information Act 4 of 2013 would come into effect on 1 July 2020. That proclamation had been made in agreement with the Information Regulator (IR).
Adv Tlakula introduced the topic and thanked the Deputy Minister for managing the process. It had been a long journey and had required a great deal of pushing. Section 47 (1) of POPIA provided for the establishment of the Regulator. She was pleased that the date for the proclamation of the remaining sections had already been indicated, so the processes would not need to be repeated in the following year. The period of time until June 2021 gave the IR sufficient time to prepare for full implementation of the Act. The effect of the Proclamation was that, although sections 2 to 38, 55 to 109, 111 and 114(1), (2) and (3) came into effect on 1 July 2020, in terms of section 114(1), public and private bodies would have up to 1 July 2021 to ensure compliance with POPIA. The amendment/ repeal of the laws contained in the schedule in POPIA would come into effect only on 1 July 2021.
Detailed readiness plans for the implementation of both POPIA and the Promotion of Access to Information Act (PAIA) were provided as separate documents.
Mr Marks Thibela, Chief Executive Officer (CEO): Information Regulator, said that the budget for the Regulator was based on an organisational structure growth of 378 employees within the next three years, requiring R84 957 000 in the 2021/22 financial year, R138 437 000 in 2022/23 and R306 374 000 in 2023/24. The figures included the cost of employees, goods and services, and machinery and equipment.
The IR had identified 378 positions at head office and regional level. The summary on slide 12 showed that in 2019/20 it had 13 positions. In phase 2 in 2020, 18 positions would be filled. Four positions had been filled to date, but the Regulator was in the process of filling six positions. Other positions would be re-advertised, as the response had not been good during lockdown. In 2021, four divisions and the majority of the 95 positions should be filled. Phase 4 was the final phase at head office. Phase 5 was about the posts in the regional offices. R45 million had been set aside to pay for the employees and commissioners in Phase 2, with 18 positions in 2020. There was a shortfall in the budget for the expansion required.
Adv Tlakula said that there was not sufficient time to present the detailed readiness plan. The plan had begun with an analysis of what needed to be done to ensure implementation. The Act provided that public and private bodies had to put in place adequate technical and organisational security measures. The IR would have to develop guidelines. The exclusion of bodies involved in national security was not defined, so the IR would have to develop a definition of national interest. Likewise, public interest was not defined. The right to privacy would also not apply in cases of journalistic or literary purposes, and those cases were linked to the public interest. The IR would have to determine where public interest would trump privacy. The Press Council had already provided the IR with a Code of Conduct for journalistic practice in the light of POPIA. The IR had received more than 600 comments, and it was looking at every one, and was obliged to give reasons where a suggestion or recommendation was not accepted.
There had to be a registration of information officers and the guidelines for that registration had been provided by the Regulator. Adv Tlakula did not believe that there would be time for a detailed presentation to the Committee, but she hoped that the Members had read through the very long document. Adv Lebogang Stroom-Nzama would present a summary of the operational plan for PAIA.
The Acting Chairperson said that the Committee had read the document, and there would be a few clarity seeking questions. One of his concerns was the idea of independence. The IR should not be taken to court, because it was still part of the DoJ&CD as a result of the budget issues. That was a structural issue, but there was also a need to address the matter of fees and for the IR to be able to conduct education and awareness campaigns.
PAIA implementation plan
Adv Stroom-Nzama presented an overview of the PAIA implementation plan. She said that the IR had a memorandum of understanding with the South African Human Rights Commission (SAHRC) regarding the hand-over of the PAIA functions.
The coming into effect of section 114(4) of POPIA on 30 June 2021 meant that the SAHRC would transfer the PAIA functions to the Regulator only as soon as reasonably possible after 30 June 2021. The SAHRC and the Regulator would jointly develop a plan of action (POA) to regulate the handing over of the PAIA function. The purpose of the readiness plan was to identify performance tasks and create deliverables throughout the implementation period, to ensure the operating environment was prepared to effectively promote and protect the right to privacy, as well as the right of access to information.
Adv Stroom-Nzama said that regulations would have to be developed, but the approach towards POPIA and PAIA was the same.
The Acting Chairperson said there were a number of issues. The human resource (HR) plan had five phases. Which phases had been approved by the Minister of Finance? He assumed that phases 1 and 2 had been approved, as the posts had been advertised. What was the status of phases 3 and 4? What was being done about the budget which was, at that point, located in the DoJ&CD? What was the situation with regard to the promotion of what was lawful in terms of the processing of personal information?
Ms Mofokeng said that she would have to leave to prepare for the next meeting. She requested that she be permitted to send the questions in writing. The Chairperson agreed to her proposal.
Mr Horn referred to the phasing in of filling of posts, and asked for a detailed breakdown of how many phase 3 posts were necessary to perform the functions for both PAIA and POPIA. Previously, Adv Tlakula had said that the commissioners and the executive would get involved in answering complaints, but the Committee wanted to know how many staff members were required to perform the functions. What was the bare minimum for performing the functions?
He added a question on the operational readiness plans. The plans seemed to have long term timelines, such as 2022 for educational programmes, and 2024 for other activities. That made him nervous about the IR’s ability to deal with complaints about POPIA. If the IR could not deal with matters, a perception might be formed that the IR was a paper tiger. The budget for the coming years was a big unknown at that stage. He insisted that the Committee needed a plan that would see the IR ready by 2021.
Ms W Newhoudt-Druchen (ANC) observed that the budget accommodated the compensation of staff, goods and services and machinery and equipment, but there was nothing for office accommodation. What was total budget for rental/office equipment? What was the impact of Covid-19 and the cost of dealing with that?
Adv Breytenbach said she would submit questions in writing.
The Acting Chairperson had a concern about timelines. He understood that the IR was dependent on other factors, but despite seeking independence, the sharing of resources did not impede on its independence. Other agencies had also utilised the accommodation and services of other departments in the early years of their existence. Even the NPA had initially shared accommodation.
Adv Tlakula said that the IR had a separation plan, because it had to separate from the DoJ&CD in order to be seen as independent. The plan focused mainly on financial independence. She had written to National Treasury to say that the IR had to separate, and she had prepared the necessary documentation. The IR would continue to share offices with the Human Sciences Research Council (HSRC) and would approach National Treasury for advice on how to manage joint procurement of office accommodation.
She informed Mr Horn that the IR had already prioritised the positions that had to be filled. After the proclamation, the posts had been further prioritised. She would have to approach the Minister of Finance. The Deputy Minister had been assisting her, and he had suggested that she meet with the Deputy Minister of Finance instead of waiting for an opportunity to meet with the Minister of Finance. She had looked at the ideal situation, but noting the financial constraints, the IR would be looking at essential matters.
The implementation plan was both short-term and long-term. There was already a complaints system in process, but it was manual and the IR needed an electronic system. One of the appointments to be finalised was for a senior executive for education. Once that person had been appointed, the IR could work on the education requirements. The officials at the IR were mostly lawyers, and they had done everything themselves except for the court cases that the IR had been engaged in. The IR had drafted its own regulations and guidelines. Although the IR would request assistance with health issues, the current staff would write the guidelines themselves, as they had done with everything else. The IR was engaged in direct online marketing to inform people of the Acts. It was currently dealing with personal information as it related to surveillance. The priority of work had been driven by the complaints received, as they had allowed the IR to see in which sectors there were issues with the processing of personal information.
She welcomed questions in writing.
Adv Collen Weapond, Member: Information Register, said that from stages 3, 4 and 5, the IR would be fully dependent on the budget allocated by National Treasury. He requested that the Committee assist in ensuring that sufficient budget be made available to employ the 378 members of staff required.
Mr Thibela said that phases 1 and 2 had been approved, and the IR was preparing to present phase 3 to the Minister of Finance. In the readiness plan, the dates of 2022, 2023, 2024 showed what would be done with the staff as required, but in the meantime, the readiness plan showed that the skeleton staff would undertake all the functions, including communication and awareness. The three to four year period showed timeframes for a fully funded entity.
He explained to Ms Newhoudt-Druchen that office accommodation expenses had been put under goods and services, because the plan was to share accommodation with the SAHRC, and the provincial offices would share state accommodation until there were additional funds available.
The impact of Covid-19 had been felt in April and May, mainly in procurement, but the staff had been in office since 1 June and had finalised six positions and had advertised seven other positions, so the IR was back on track in terms of spending.
The Deputy Minister indicated to the Chairperson that he had been well covered.
The Acting Chairperson said that further engagement was needed with the IR, especially in the preparation for phase 3 and the various sections that came into play as a result of the proclamation. The Committee wanted to go into more detail on the MoU with the SAHRC. It was a new area that affected all South Africans. Regulating personal information affected every South African. It was a daunting task, but a very important one. He thanked Adv Tlakula for her presentation and the hard work.
Human Rights Commission on the transfer of PAIA powers and functions
Adv Tseliso Thipanyane, CEO, SAHRC, said that the SAHRC would be handing over the functions, but it could do the Annual Report only at the end of September 2020, as the provincial reports had been received only at the end of May. The SAHRC had felt that it had to do the report itself. That meant that the SAHRC would continue with the work, cooperating with the IR.
When he had re-joined SAHRC in 2017, only one official had been managing PAIA, and he had been on contract. His contract would be extended so that he could “keep the baby alive, even if in ICU,” until the PAIA was handed over. He believed that the hand-over phase would be easier, as the SAHRC and IR were neighbours and were collaborating well.
In 2000, he had been Head of Research at the SAHRC and had taken over the process of developing PAIA, and now he was back again at the SAHRC to hand it over. He would have to address the challenges in respect of understanding by public bodies, etc. By July 2021, PAIA would be on a much better footing with regulations, etc.
The Acting Chair appreciated the plan for handing over the PAIA functions.
Ms Maseko-Jele noted that four minutes was an excellent time for the presentation.
The Acting Chair agreed that the slides were very clear, and appreciated that the SAHRC had been short and direct.
Adv Thipanyane thanked his staff, and the Information Regulator for her collaboration.
The Acting Chairperson thanked the support staff for facilitating the meeting. He said the next meeting would provide more time for the discussion of the matters.
The meeting was adjourned
- Media Statement: Justice Portfolio Committee Concerned about Corruption and Fraud
- IR Readiness Plan for Implementation of Promotion of Access to Information Act 2 of 2000 (PAIA), as Amended
- IR Readiness Plan for the Implementation of Protection Of Personal Information Act 4 of 2013 (POPIA) dated 24 June 2020
- IR presentation- Readiness Plans for Implementation of Protection of Personal Information Act 4 of 2013 & Takeover of Promotion of Access to Information Act 2 of 2000 as Amended
- NPA and SIU: Collaboration
- SAHRC - Transfer of PAIA powers and functions to the Information Regulator
- SIU - Investigations Relating to Office of the State Attorney, Master’s Office and Building of Courts
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