Hate Crimes and Hate Speech Bill; State of Masters office: briefing by Department; with Deputy Minister
Justice and Correctional Services
18 August 2021
Chairperson: Mr G Magwanishe (ANC)
Qwelane v South African Human Rights Commission and Another (CCT 13/20)  ZACC 22 (20 July 2021)
The Committee received a briefing on the Hate Crimes and Hate Speech Bill and the Qwelane Constitutional Court judgment. This was followed by a briefing regarding the state of the office of the Master of the High Court.
The Department of Justice and Constitutional Development stated that the Prevention and Combating of Hate Crimes and Hate Speech Bill had been introduced in 2018. The Bill had been put on hold pending two Constitutional Court judgments, one of which (Qwelane) had been released the previous week.
In response to questions, the Deputy Minister said that it was effectively the same Bill that had been introduced in the previous Parliament. The Qwelane judgment would require a separate amendment to the Promotion of Equality and Prevention of Unfair Discrimination Act, but the Department believed that Parliament was free to proceed with its consideration of the Bill. Members asked about the impact of the deadline of 24 months set by the Court for Parliament to amend unconstitutional provisions. The Deputy Minister explained that this applied only to the Act, the Bill was completely separate. Members asked if hate speech on social media was mentioned in either the Act or Bill.
The Committee was dissatisfied with the briefing of the state of the office of the Master of the High Court. Members asked why the Department presented only plans and did not describe or account for outputs and performance, or non-performance. Several committee members expressed their dissatisfaction with the “lack of public service” at these offices country-wide. They asked why vacancies remained unfilled. Had the insolvency policy been submitted to the Minister and when could the Committee expect implementation of that policy? Had the three officials in the Tshwane office who accepted a bribe for issuing the letters of authority been arrested? Will the Department look into setting up a helpline for those who are left unattended by the Master’s Office? Following the briefing, the Chairperson said that the presentation created the impression that everything was normal in the office. Yet the Committee knew of the long queues and non-delivery of service to people. The onslaught in terms of lack of service delivery to South African people had been ongoing for many years. The Committee would be closely monitoring the outcome and impact of Departmental plans. It wanted to know the targets, which were met and which were not and why they were not met. It could not accept non-performance.
The Chairperson invited the Department to introduce its delegation. Mr John Jeffery, Deputy Minister of Justice and Constitutional Development said that Adv Doctor Mashabane, Director-General: Department of Justice and Constitutional Development (DoJ&CD), would be leading the delegation for the discussion on the Office of the Master of the High Court.
Mr S Swart (ACDP) said that he had to leave early for a Chief Whips’ Forum meeting, and apologised in advance.
The Chairperson said that his apology was noted the previous day for his needing to leave the meeting at 13:00 if the meeting was not yet concluded.
The Deputy Minister was accompanied by Mr Henk Du Preez, State Law Advisor: DoJ&CD. Mr Du Preez noted that some colleagues had returned to work after being ill. Ms Ross was still recuperating at the time of the meeting.
The Chairperson wished DoJ&CD colleagues a speedy recovery. It was not only the people who are infected who are affected, but also the people who are looking after them are directly or indirectly affected by the pandemic.
The Deputy Minister (DM) said that the Department would be giving a briefing on the Prevention and Combating of Hate Crimes and Hate Speech Bill. The Bill was introduced in 2018 [B9-2018], and created a category of hate crimes, as well as hate speech. It would give effect to the Republic of South Africa’s obligations in this aspect. The Bill would take into account prejudice towards the victim, based on age, gender, colour, etc., and will elevate less serious crimes such as assault. What the Act does is that it will elevate that to the status of a crime. The second thing it does is to create an offense of hate speech. That is effectively a “new crime”. There are some partial exemptions for hate speech—bona fide artistic expression, academic or scientific inquiry, fair or accurate reporting and a bona fide interpretation, or proselytizing, or espousing, of any religious tenet, belief, teaching, doctrine, or writings. Both of the crimes have to be instituted by the Director of Public Prosecutions or somebody that the Director has delegated. It is put up at a more senior level. This then makes provisions for things like victim impact statements, penalties and orders. The issues on directives and prevention of hate speech would be presented. The DM noted that hate crimes are becoming more and more prevalent in South Africa for different motives. One of the things that is very important with the Bill is to be able to get the police – and the National Prosecuting Authority (NPA) – to categorise those crimes, and to ensure effective monitoring of them. The Bill had been put on hold with regards to waiting for two Constitutional Court judgments. The first one, which dated back to 2017, or 2018, is the Masuku judgment, which still had not come out. He did not know what had happened to that. The Masuku case was about antisemitism. The Qwelane judgment is out, and that has effectively determined what the Constitutional Court has excluded from free speech. That case was about the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) which is a civil remedy. The Department drew on that Act’s provisions to some extent. The Court found that some changes had to be made. As far as this Bill was concerned, the Department was confident that apart from changing an “or” to an “and”, it will be constitutionally compliant. The Bill can be processed. The issue of hate speech was something that was quite contentious before. Hopefully now, because the Court has given the guidelines, it will be easier to process. The one aspect the Department left out of the Bill, which is also slightly contentious, is whether there should be provision for alternative sentences. Alternative sentences would be diversions such performing [community] services, etc. The Department was concerned that the purpose of the Bill is to make hate crimes a more serious crime, and if there is a general opening to the prosecution to mediate, then many of these crimes will get mediated when they possibly should not be. The presentation was in two parts. It comprised a brief on the Bill, and then details of the Qwelane judgment.
Prevention and Combating of Hate Crimes and Hate Speech Bill, 2018: Qwelane v South African Human Rights Commission and another Case CCT 13/20
Mr Du Preez outlined the presentation as follows:
• Prevention and Combating of Hate Crimes and hate Speech Bill, 2018 (Part I);
• Background information (Part II);
• Placing the Qwelane judgment in context (Part III);
• Judgment: PEPUDA read with Constitution (Part IV); and
• Conclusion (Part V).
Part I: The Bill
• Purpose of Bill:
• The Bill seeks to address the increasing number of incidents motivated by prejudices, in the form of hate crimes and hate speech, and to assist persons who are victims thereof; and
• creates the offences of hate crimes and hate speech and puts in place measures to prevent and combat these offences.
• Clause 1 contains self-explanatory definitions. “Court” excludes district courts from the application of the Bill. Only the High Court and regional courts, where there are more experienced officers, may deal with the adjudication of these offences.
• Clause 2 sets out the objects of the Bill, which are self-explanatory.
• Clause 3: Hate crimes
• If a person commits any recognised offence under any law, commonly referred to as the “base crime or offence”, and the commission of that offence is motivated by prejudice or intolerance on the basis of one or more characteristics or perceived characteristics of the victim as listed in the Bill, a family member of the victim or the victim’s association with or support for a group of persons who share the said characteristics.
• A prosecution in respect of a hate crime may only be instituted on the authorisation of the Director of Public Prosecutions having jurisdiction (Clause 4(3)).
• Clause 4(1): Hate speech
• 4(1)(a): Any person who intentionally publishes, propagates or advocates anything or communicates to one or more persons in a manner that could reasonably construed to demonstrate a clear intention to be harmful or to incite harm or to promote or propagate hatred based on age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality or migrant or refugee status, race, religion, sex, which includes intersex or sexual orientation, is guilty of the offence of hate speech.
• 4(1)(b): creates an offence when hate speech material is intentionally distributed or made available in cyber space.
• 4(1)(c): any person who intentionally displays any material or makes available any material which constitutes hate speech, which is accessible by or directed at a specific person who can be considered to be a victim of hate speech, is guilty of an offence.
Mr Du Preez added that the term “harmful” had been highlighted in the presentation, and that he would expand on that term in the context of the Qwelane judgment.
• Clause 4(2): Exemptions to criminal liability
• 4(2)(a) to (c): Confirm the right of freedom of expression as enshrined in section 16(1) of the Constitution, which includes, freedom of the press and other media, freedom to receive or impart information or ideas, freedom of artistic creativity and academic freedom and freedom of scientific research. These provisions exclude from hate speech anything done in good faith in the course of engagement in any bona fide artistic creativity, performance or other form of expression, academic or scientific inquiry or fair and accurate reporting or commentary, in the public interest.
• 4(2)(d): excludes from hate speech any bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings. Artistic creativity or performance or espousal of religious doctrine will not qualify for exemption from hate speech if it advocates hatred that constitutes incitement to cause harm based on any protected grounds.
• Clause 5:
• Sets out what a victim impact statement is, namely a sworn statement by the victim which reflects the physical, psychological, social, economic or any other consequences of a hate crime or hate speech on a victim. The contents of the victim impact statement will be admissible as evidence in court, unless good cause to the contrary is shown.
• Clause 6: Penalties and orders
• provides that a person who is convicted of a hate crime is subject to the penalties set out in section 276 or 297 of the Criminal Procedure Act, 1977, subject to the penal jurisdiction of that court, (whether it be the High Court or the regional court); and
• alternatives to fines and imprisonment: Restorative Justice Approach: presiding officers can, in terms of existing legislation, among others, section 297 of the Criminal Procedure Act, 1977, impose creative sentences which keep convicted persons out of prison, for instance suspended sentences and the postponement of sentences, with appropriate conditions.
• Clauses 7 and 8: Directives and reporting
• Clause 7: the NDPP, after consultation with DG: Justice and Constitutional Development and the National Commissioner of the South African Police Service (SAPS), to issue directives on relevant matters and these directives must be complied with by prosecutors in the execution of their functions under the Bill.
• Clause 8: requires the Minister, after consultation with the Minister responsible for SAPS and the NDPP, to make regulations on the information to be collected and collated by the SAPS and the NPA, respectively. The information obtained must be made available to Parliament and to the Chairpersons of the South African Human Rights Commission, the Commission for Gender Equality and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.
• Clauses 9 and 10: Prevention of hate crimes and hate speech and regulations
• Clause 9: deals with the prevention of hate crimes and hate speech and requires the State to promote awareness of the prohibition against these offences, aimed at the prevention and combating thereof. Training programmes, including social context training programmes, must be developed by the State and the South African Judicial Education Institute on the prohibition, prevention and combating of hate crimes and hate speech.
• Clause 10: empowers the Minister to make certain regulations in order to achieve the objects of the Bill.
• Clause 11: read with the Schedule to the Bill
• sets out the consequential amendments of other Acts of Parliament, required by the Bill, namely amendments to the Criminal Procedure Act,1977, the Criminal Law Amendment Act, 1997 (dealing with compulsory minimum sentences), and the Child Justice Act, 2008. The amendments in the Schedule to the Bill only relate to hate crimes and not to hate speech.
• The hate crimes to be included in Schedules 5 and 6 to the Criminal Procedure Act, relating to bail, in Parts I and II to the Criminal Law Amendment Act, 1997, relating to compulsory minimum sentences and in Schedule 3 to the Child Justice Act, 2008, relating to the most serious offences committed by children, constitute the most serious offences known in our law.
• They are all characterised by the most violent infringements of the right to the security of the person or serious damage to property.
Part II: Background information
• Facts of case: Mr Qwelane published an article in a Sunday newspaper on 20 July 2008 which was found to be offensive towards members of the LGBT+ community [commonly understood to refer to the “Lesbian, Gay, Bisexual, Transgender, Queer or Questioning and Intersex” community];
• Matter eventually came before the Constitutional Court (CC) at the instance of the South African Human Rights Commission (SAHRC) which received complaints from, among others, members of the LGBT+ community;
• Essence of case before the CC:
• Sections 10 and 12 of PEPUDA, read with sections 9 and 16 of the Constitution;
• Balancing the rights of freedom of expression, equality and dignity
Part III: Placing the Qwelane judgment in perspective
• Judgment primarily deals with provisions of PEPUDA, read with sections 9 and 16 of the Constitution;
• PEPUDA: prohibited grounds stipulated in section 10, read with definition of “prohibited grounds” in section 1 of PEPUDA.
Part IV: Judgment: PEPUDA read with Constitution
• Section 1: “prohibited grounds” are—
• (a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth and HIV/AIDS status; or
• (b) any other ground where discrimination based on that other ground—
(i) causes or perpetuates systemic disadvantage;
(ii) undermines human dignity; or
(iii) adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a).
• Prohibition of hate speech: S 10(1):
• Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to—
(a) be hurtful;
(b) be harmful or to incite harm;
(c) promote or propagate hatred.
Mr Du Preez added that earlier in the presentation, the Department had highlighted the term “harm”, and in this section on PEPUDA, it highlighted “hurtful”, because it was one of the crucial aspects that was discussed in the Qwelane judgment. The Committee would have noted that in the quoted part of section 10, in paragraphs (a), (b) and (c), there is no “or” or “and”. This was one of the other aspects that was highlighted in the judgment itself.
• Prohibition of dissemination and publication of information that unfairly discriminates: S 12:
• No person may—
(a) disseminate or broadcast any information;
(b) publish or display any advertisement or notice,
that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person: Provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not precluded by this section.
• Questions before CC (in Qwelane matter):
• whether s10 entails a subjective or objective test;
• whether s10(1)(a) to (c) should be read disjunctively or conjunctively;
• is the provision impermissibly vague; and
• whether the provision leads to an unjustifiable limitation of section 16 of the Constitution.
• Does s10 entails a subjective or objective test?
• With reference to the phrase “that could reasonably could be construed to demonstrate a clear intention” the Court found that it is plainly an objective standard that requires a reasonable person test.
• Whether s10(1)(a) to (c) should be read disjunctively or conjunctively?
• The CC found that on a disjunctive reading (if one could have read an “or” in paragraphs (b) and (c), section 10 would prohibit mere private communication which could reasonably be construed to demonstrate a clear intention to be hurtful – the CC found that this would be an overly extensive and impermissible infringement of freedom of expression — the provision should be read conjunctively (as if there was an “and” in paragraphs (b) and (c)).
• Is the provision (“hurtful”) impermissibly vague?
• “Hurtful” on a conjunctive reading of the provision is redundant and contributes to the lack of clarity of the provision. The term “hurtful” is vague and breaches the rule of law.
• Whether the provision leads to an unjustifiable limitation of section 16 of the Constitution?
• The limitation of “hurtful” speech goes beyond the justified limitation of hate speech and is therefore unconstitutional.
Part V: Conclusion
• The Bill does not use the term “hurtful” when it comes to hate speech, but the CC found that the expansion of the listed grounds to include analogous grounds, does not render the definition of prohibited grounds unconstitutional. The extended prohibited grounds are narrowly crafted to fulfil the purpose of the hate speech prohibition. Accordingly, the CC concluded that the limitation is proportionate in an open and democratic society. The challenge based on a limitation of section 16 of the Constitution did not succeed.
• Clause 4(1)(a)(i) and (ii), in the Bill as introduced is disjunctive. Careful consideration must be given to the provisions of this clause to ensure its constitutional compliance as per the Qwelane judgment. The judgment expressed (at para 104) that “Furthermore, and critically, a disjunctive reading would render the impugned provision unconstitutional, since merely hurtful speech, with no element of hatred or incitement, could for example constitute hate speech. This would be an impermissible infringement on the freedom of expression as it would bar speech that disturbs, offends and shocks.”
• Clause 4(1)(a)(aa) to (oo) of the introduced Bill lists the specified grounds upon which hate speech may be premised. The Qwelane judgment dealt only with hate speech against the LGBT+ community. The judgment specifically noted the “broadness of the prohibited grounds, but undertook no further analysis.” The judgment states, at para 128, that this analysis is best left with Parliament to deal with. Parliament must therefore delve deeper into this clause of the introduced Bill.
• The Department published amendments to PEPUDA, and comments are currently being evaluated. The Qwelane judgment, while providing a reading-in to address the constitutionally invalid clause, gave Parliament 24 months to cure the defect. In reviewing the PEPUDA amendments, an amendment to address the order of the CC, will be drafted.
The Chairperson asked the DM if it meant that the Department still had to draft a Bill that will take into account the judgment of the CC, before public comments can be invited by Parliament.
The DM said no; the CC judgment was about PEPUDA. Thus, the Department needs to amend PEPUDA. There are already some amendments that were published for public comment by the Department. For the PEPUDA Amendment Bill, the Department will be including those provisions in that bill. There is nothing more that needs to be done for the Hate Crimes and Hate Speech Bill. The Department believes that it is consistent with the CC judgment. The only issue is changing an “or” or an “and” in one section so that the Bill is read conjunctively. The Committee should then be able to proceed with the Bill to advertise it for public comment. The Bill was advertised for public comment by the previous Parliament, but the DM imagined that the Committee would want to advertise it again because so much time has passed since then. It is effectively the same Bill that was introduced in the previous Parliament. In short, there is nothing more that the Department feels it needs to do. It believes that Parliament is free to proceed with its consideration of the Bill.
Mr S Swart (ACDP) said that given the fact that this Bill is before a new Parliament, he would support the view that there should be public comment, particularly in view of the judgment and the possible amending of words here and there. Parliament had received a lot of input, and one needs to look carefully (at that input). He added that he did not want to “express too many views at this stage”. The Committee will need to study the Qwelane judgment, and study the proposed amendments. Once it has heard all the public comments, it would then consider the impact of this Bill. As the DM pointed out, the hate crime aspect is not too contentious; the hate speech aspect is the more contentious side of things. With the issue of how the Qwelane judgment relates to PEPUDA, there are still concerns with that, but that is not before the Committee; it is still with the Department. There might be aspects which overlap which might have to be considered. He summarised his comment by saying that the Committee needs the relevant information, and that he would support advertising for public comment, so that the Committee can then take the process forward.
Ms N Maseko-Jele (ANC) agreed with Mr Swart on the proposal to put the Bill out for public comment, and taking into consideration all that the DM mentioned in terms of PEPUDA, etc. She made a request that Mr Du Preez summarise the content of clauses when he referred to them. When the Committee comes back to discuss the Bill, there are references that he normally does; for example, he would say “as section 12” or “section 10”, this is what it contains. If it is possible, where Mr Du Preez is going to mention section 12, can he give the Committee a summary of that? The Committee is still learning about this Bill. There could be a scenario where the Committee thinks that a section is saying a particular thing, and one can make mistakes. Then, the input that one might make would not, by then, be in line with what is a good input. She agreed with her colleagues on putting the Bill out for public comment.
The Chairperson said that Ms Maseko-Jele might have to repeat her instructions when the Committee is processing the Bill, so that at the time the Committee is dealing with the Bill, it would be interested to have those instructions, so that it can take those as Committee instructions to the Department.
Ms W Newhoudt-Druchen (ANC) agreed with Ms Maseko-Jele. Some of the Committee Members were new. If this Bill was brought to it in a Word document with a column to explain where this is coming from and why it is being amended, that would be helpful for the Committee to see the wording, what the suggested changes are, and for what reason. When was the deadline given by the CC to Parliament to complete this process. The Cyber Crimes Bill was recently passed. She asked if hate speech on social media was mentioned in either the Act or Bill, because that is something that is on the increase, particularly on social media. Was that something that can be included in this Bill, or was it something that needed to be added to the Cyber Crimes Act?
The Chairperson asked Members not to jump into discussions of the Bill before it is published. He said that the Committee would have an opportunity to engage with the Bill. The Court gave Parliament 24 months from the date of judgment to complete the process. Because of the interest in this issue, the Committee must not wait for the 24 months. The Committee needs to deal with this Bill “as of yesterday”. Parliament will publish the Bill for public comments urgently. Then the Committee will start processing Bill. The challenge the Committee has had is that when it waits until, for example, four months before the deadline set by the Court, it is compromising the National Council of Provinces (NCOP) and the President. After the NCOP processes a bill, it still has to go to the President for assent, and the President would often have to go through the bill and check its constitutionality before he assents to the bill. It is important that when Bills with Constitutional Court deadlines arrive, they must be treated expeditiously, so that the Committee allows the other houses and the Presidency to do their constitutional duty. South Africans expect that most of these bills will be dealt with expeditiously. Parliament has always been ready to process the Bill, but it could not do so because it was awaiting the judgment of the Constitutional Court. If it had proceeded and published a bill only for it to be declared unconstitutional, it would have been reckless on Parliament’s part. Parliament will publish the Bill and invite comments as soon as possible, then process the Bill as soon as it could.
The Chairperson asked Ms Portia Serote if she was a Member of Parliament. She replied that she was an activist at ground level. The Chairperson said that the Committee had not yet reached that stage. When Parliament has published a bill for public comments, then the Committee does public hearings. During public hearings, the Committee interacts with activists and every interested member of society. He thanked Ms Serote for her understanding. He then said that Members were in agreement that Parliament has to publish the Bill for public comments urgently, and then it will invite members of the public to make comments.
The DM said the Hate Crimes and Hate Speech Bill was a bill on its own. The CC was considering provisions of PEPUDA, so the deadline of 24 months is for PEPUDA to be amended. That would be a separate amendment that the Department will bring; there will be other aspects that have been worked on and have already been put out for public comment. The Hate Crimes and Hate Speech Bill is on its own. The Department feels that the judgment has made it easier for the Committee, because it has set the boundaries of hate speech.
The DM responded to Ms Newhoudt-Druchen’s question. There was a provision in the Bill relating to electronic communications (he thought it was 4(1)(b)), so that was covered. In the hate crimes section of the Bill, there is a list of categories where if one is prejudiced because of a person’s belonging to any of these groups, and shows intolerance of a victim, then it is a hate crime. Those categories go from (a) to (q). Under hate speech, there is a similar list of categories, but two of them are not listed under hate speech. These two are occupation or trade. A person commits a hate crime if they attack hawkers, truck drivers, sex workers etc. It is a hate crime if a person commits a crime against someone because of their political affiliation. If one attacks someone because they are in the ANC, DA, EFF, etc., that can be a hate crime. Those two provisions are not the categories for hate speech, because the Department thought that it would be limiting free speech too much. One may not be able to criticise politicians, or members of other parties, if occupation or trade was there. The listed grounds in section 16, are race or ethnicity, gender or religion, etc. The CC in the Qwelane judgment said that sexual orientation could be added. The Department believes that the CC would agree to the list from (a) to (o) under the hate speech provisions. He hoped that the Committee could proceed speedily with the Bill, and hopefully the judgment would make it easier to finalise what the provisions of hate speech as a crime should be.
State of the Office of the Master of the High Court
Adv Mashabane was accompanied by Adv Martin Mafojane, Chief Master of High Court, DoJ&CD, and the senior managers in the Office of the Master. He said the broad thrust of the presentation would look at the mandate of the Master, and then deal briefly with the specific legislation and provisions that govern the work of the Master’s Office. It would also look at the efforts to automate processes within the broader strategic framework of the Department.
Adv Mafojane said the presentation contained the following headings:
1. Mandate of the Master
i. Master’s footprint
ii. Staff compliment
iii. Applicable legislation
2. Sections within the Master’s Office
i. Deceased Estates: Deceased automation
ii. Trusts: Trust automation
iii. Insolvencies & Liquidation: Insolvency & Liquidation automation
iv. Guardian’s Fund: Guardian’s Fund automation
3. General automation
4. Automation progress
5. Master’s Branch working groups
6. Key priorities
7. Risks & Challenges
9. Key Risk indicators
Mandate of the Master
(See pages three to four of the presentation for the full details, including key legislation applicable to the Master of the High Court.)
Masters Offices Locations
2) Cape Town;
11) Johannesburg (only established February 2004);
12) Polokwane (established in 2003);
13) Durban (established in 2003);
14) Port Elizabeth (established in 2003); and
15) Nelspruit (established in 2012).
402 Magistrate’s Courts are also Service Points of the Master (with limited jurisdiction) and the Paperless Estate Administration System (PEAS) has also been rolled out to 290 Service Points, linking them directly electronically with the relevant Master’s Office.
Adv Mashabane said that from the definition of its long name, the Office of the Master of the High Court was initially at or near the seat of the High Court. Currently there were 15 Master’s Offices countrywide. Due to the demand in Mpumalanga, and there being a local division in Middelburg, the Master’s Office was considering starting an office there. It hopes to get funding and capacity for the Master’s Office in Middelburg. It does not want it to be a service point; it wants it to be a fully-fledged Master’s Office. It was granted space and has since July started to deploy an Assistant Master there, and it is rotating Assistant Masters from a variety of its offices countrywide.
a) Approved structure – 1,285
b) Funded structure – 1,123
c) Suppressed posts – 162
d) Current warm bodies – 1,025
Current vacancy rate: 9% of funded positions.
The Office of the Chief Master is currently in the recruitment process to fill 64 posts.
Adv Mashabane added that senior management was “thinly spread out” at the top of the branch management. It comprised the Chief Master and two Chief Directors, and the other Chief Director is an Acting Chief Director. The Acting Chief Director is busy with interviews for the Office Manager in the Office of the Chief Master. One of the Chief Directors is testing the online registration system, and she is attending to that project.
(See the table on pages eight to nine of the presentation on the sections within the Master’s Office and their applicable legislation.)
• The duties and powers in these Acts can only lawfully be done by the Master, Deputy Master or Assistant Master of the relevant Master’s Office.
• Failure to execute these statutory obligations by the Master will result in high litigation against government and unhappy citizens due lack of service delivery and quality of services.
(See pages ten to 11 of the presentation for the full details.)
Adv Mafojane said that overseeing the administration of the estate is an area that the Master’s Office will need to monitor in the long-term, and ensure that it is better managed, since it has seen some estate processes go on for years.
Adv Mafojane said the PEAS was developed around 2013 to 2014. This older system differs to what the Master’s Office is doing now. The aim was to ensure that when people come and report an estate, the documents are put into the system. The online registration that the Office is currently dealing with is where people would remotely submit their documentation, and the reporting documents would then be entered into the system. The Master’s Office took a longer time to move from the PEAS to what it is developing currently.
a) The Paperless Estates Administration System (PEAS)
(i) computerises the administration process related to deceased estates
(ii) has successfully rolled out and is being used by all 15 Masters’ Offices countrywide, as well as approximately 290 service points in total, to date.
(iii) Rolling out to Service Points enables the Service Points to be linked with the relevant Masters’ offices, who then are able to oversee the appointment process in the Service Points, and thus ensuring that the whole country receives the same service and are able to access the same quality of services provided directly at Master’s Offices, without the need to travel long distances to the 15 Master’s Offices countrywide.
(iv) Estates can be reported at a Service Point if less than R125 000 and no will (Linked service points – R250 000)
(b) Deceased estates online
• Masters are currently working on a Deceased Estates Online project.
It is envisaged that this online service will be implemented in this financial year. This will streamline and expedite the deceased registration process and assist in curbing fraud as applicants will be able to lodge their applications and scanned documents online, assisting with the workload of the Deceased Sections as most information will be captured and scanned in by the applicants, freeing the Masters’ hands to apply their minds thoroughly to the lodged documents and other walk-in clients.
Adv Mafojane said that when a person reports an estate, having sourced the documents from the Master’s Office website, and completed, scanned and submitted them, that then ensures that the record upon which the Master relied had been submitted remotely. This record would then not have been submitted in connivance with some official, and it would not disappear. It is available and in the system, and is a record that would show what the Master had relied on to do this. The Master’s Office believes that this is an important move that will reduce people having to queue at the various Offices of the Master. Most importantly, the records will never be missing that relate to informing the appointment.
There are two types of trusts:
• An inter-vivos trust is created between living persons and
• A testamentary trust derives from a valid will of a deceased.
• All trusts must be registered with the Master and a registration fee of R250 is payable into the Justice Vote account.
• On receipt of all the required documents, the Master may issue the nominated trustees with Letters of Authority, to administer the trust.
• No trustee may act as such without the written authority of the Master.
• The Master does not oversee the administration of Trusts.
• A Paperless Estate Administration for Trusts (PEAST) has also been developed and has been successfully implemented in all 15 offices. This enables members of the public to register trusts quicker and more efficiently.
• Trust online
• Masters are currently working on a Master’s Trusts Online project.
It is envisaged that Trust online services will be implemented in this financial year. This will streamline the Trust registration process and assist in curbing fraud as applicants will be able to lodge their applications online, assisting with the workload of the Trust Sections as most information will be captured and scanned in by the applicants, freeing the Masters’ hands to apply their minds thoroughly to the lodged documents and other clients.
Adv Mafojane said that previously the processes required physical attendance at the Office of the Master, bringing the documents and requesting the registration. Now, that registration and exercise can happen remotely.
Insolvencies and Liquidations
• The liquidation/insolvency process is started by:
- A natural person, trust or partnership;
- A creditor of a natural person, trust or partnership;
- A creditor of a Company / Close Corporation; and
- The Company / Close Corporation themselves,
• This application is also lodged with the Master in whose jurisdiction the insolvent / company exists
• The insolvent is then sequestrated by the Court OR the company is liquidated by the Court
• Master appoints the Trustee / Liquidator
• Master oversees administration process
Insolvency and Liquidation Automation
An Integrated Case Management System (ICMS) [for] Insolvency [was] implemented during the 2019/20 financial year. This development follows the PEAS and PEAST developments of previous years and allows for insolvency matters to be done on the system.
• The Guardian's Fund is a statutory Trust established in terms of Chapter V of the Administration of Estates Act, 1965 (Act 66 of 1965).
• There are 6 separate funds for different areas, namely
d) Cape Town;
e) Grahamstown (also responsible for Bisho and Umtata); and
f) Pretoria (also responsible for Thohoyandou and Mmabatho).
Purpose of the Guardian’s Fund
The purpose of the Guardian’s Fund is to protect the funds of minors; persons lacking legal competence and capacity, known or unknown, absent and untraceable heirs, out of deceased estates.
(See page 19 of the presentation for the full details.)
Adv Mafojane said that what has been an abuse of the funds within the Guardian’s Fund would be where in liquidation matters, the liquidators would want to say that they cannot trace the beneficiaries or former employees, and then they want to deposit that money in terms of relying on this section. The Master’s Office’s point has been that if the unions were represented in the process, these beneficiaries could be traceable. In the last ten years, the Guardian’s Fund has had a good audit report, and it has never “dropped the ball”.
• MOVIT (Master’s Own Verification Information System
• MOVIT has been implemented and used in all 15 Masters Offices as well as at 292 Magistrates Offices to date.
• Completed applications for funds can be lodged directly at these mentioned Offices, instead of needing to travel long distances to the Master’s Office where their funds are being administrated to lodge same. The Magistrate’s Office then couriers the completed application to the correct Master’s Office, who in turn processes the application and pays the beneficiary by way of Electronic Funds Transfer (EFT). The vulnerable are now better served through a safer and quicker means of payment.
Guardian’s Fund Automation
A new administration system and financial system for the Guardian’s Fund is being developed together with the IT section management (ISM).
- The tender process has been done in the 2020/21 financial year
- It is envisaged that development will be finalized and the system rolled out in the 2022/2023 financial year.
- System development is currently underway.
The new system will be a full financial system which will ensure accurate financial statements and management. The move to a fully financial system will guarantee accurate records and reports while simplifying processes of the Master’s office in Guardian’s Fund matters.
Supervision in estates of minors and mentally challenged persons in South Africa.
• The Curatorship Section assists a huge variety of people from all walks of life, i.e. minors, persons incapable of managing their own affairs – such as people with brain injuries, i.e. a motor vehicle accident or a stroke; intellectual disabilities; mental illness, dementia; Alzheimer decease etc.
• This section supervises the administration of estates in which applications are lodged to appoint a Curator Bonis; Curator Personae; and Administrators in terms of the Mental Health Care Act; Tutors for minors, as well as Curator Bonis in Asset Forfeiture Matters.
General Automation – Master’s Branch
Internet – Website
The Master’s Branch has provided information on the internet on several areas of its activities, such as
• the Forms to be used by public,
• contact details of all offices and officials
• Chief Master’s Directives
• information regarding the unclaimed funds in the Guardian’s Fund,
• list of Liquidators and
• further operational information, such as Liquidation and Distribution accounts received etc.
There is also a self-help aspect available on the Master’s Portal where public can obtain certain basic information themselves without needing to contact the relevant Masters Office.
Automation – Progress Against the Schedule (*Updated Schedule)
(See the table on page 24 of the presentation for the full details.)
(See the tables on pages 25 to 26 of the presentation.)
The risks outlined are those related to the information on the automation process. The Master’s Office is fairly confident that it will ensure that piloting and roll-out should take place in the proposed time during September. It wants to close quarter two having commenced, and if possible closed, the piloting, and starting to prepare for the roll-out.
(See the table on page 27 of the presentation.)
The issues relate to the modernization process, and the people that the Office needs to get assistance from.
Master’s Branch Working Groups
(See the table on page 28 of the presentation.)
The table outlined an intervention that, in line with the new management approach in the Department, tries to ensure that it includes and ensures that senior managers from levels 13, 14 and 15 do lead and manage in various situations. The working groups are:
- the Insolvency and Insurance Bond Working Group;
- Trust, Curatorship and Guardians Funds Working Group (where the table was meant to say Sec 96 (2));
- Automation and Deceased Estates Working Group; and
- Human Resource/Capacity and Training Working Group.
Adv Mafojane said that he would leave out the outcomes of the working groups in order to save time.
i) Developing and rolling out of Trust online
ii) Developing and rolling out Deceased online
iii) Guardian’s Fund
i) System enhancements and development of Financial System
iv) Amendment of key Acts
i) Trust Property Control Act
ii) Administration of Estates Act
Risks and Challenges
1. Unstable or unreliable network
• High influence on performance as many functions are system dependent, such as the usage of ICMS PEAS, ICMS PEAST, ICMS Insolvencies, Guardian’s Fund (GF) System, Application Tracker and ABSA Cashfocus for EFT payments
• When the network is working well, these functions are being dealt with effortlessly, but then there are also months where system issues causes delays and underperformance in some offices.
2. Cybercrime on GF
• the recent cyber-security breach at the Master’s office in Pietermaritzburg
• result of the breach, the Department had to shut down the electronic payment system and revert back to manual payment
3. Resurgence of national/international disaster/pandemic
• The COVID - 19 pandemic negatively impacted on service delivery
• as a result of intermittent office closures and high absenteeism due to COVID – 19 positive cases as well as other officials working remotely due to comorbidities and other factors.
• closures are congruent to the prevalence of infections.
• matters have fallen into the “backlog” category and as such lead to public dissatisfaction due to delays in finalising matters.
• Staffing shortages due to non-filling of vacancies creates difficulties to maintain efficient services to the public as well as roll out to more Magistrate Courts with the view to provide easy access to our services for rural people and/or previously marginalised people.
• Budgets constraints hamper the Branch’s intention to capacitate and fill vacant posts in the Master’s Offices.
• High staff turnover
• Demoralised employees due to increasing workload and insufficient resources.
• Medical liability / Road Accident Fund (RAF) payments
• Creation of trusts in court orders to the detriment of the patients
• In discussion with Special Investigating Unit (SIU), RAF, Law Society, State Attorney, Judge Presidents etc.
• Community trusts
• Undetermined beneficiaries
• Trustees enriching themselves
• No control
(See pages 34 to 36 of the presentation for the full details.)
Such mitigations included sensitivity training of officials; addressing network issues; prioritizing the pilot and roll-out of the Deceased – and Trust Online projects; and legislation transformation.
Office of the Chief Master Key Risks Indicators
(See pages 37 to 38 of the presentation for the full details.)
Key risks included potential for fraud and corruption affecting Masters services; failure to meet service delivery targets in relations to issuing of letters of authority in trusts; unreliable, unstable and slow network system; and inadequate capacity within Masters Branch.
The Chairperson said that there was a request from various stakeholders that the presentation be shared with them. He asked if the Committee Secretary could facilitate that. He was not sure whether the DG and the Chief Master were aware that they were expected to manage an organisation in crisis.
The DG replied, “to an extent”.
Ms Maseko-Jele said that progress is “very little, but it is noted”. She was disappointed in the area of vacancies that the Department should have considered. The organisation (the Master’s Office) is in crisis. These are the areas that the Master’s Office must consider first, because there is “no way that we will see progress in many areas” if these vacancies are not filled. Recruitment is still being talked about. Next time, the Committee would like to get a report where these vacancies are filled, especially in Nelspruit, Thohoyandou, and the coastal operations. Those vacancies need to be filled, otherwise “we are not going anywhere … these problems will not be solved”. People on the ground do not have time. They have been waiting for these services for a long time. People cannot afford to be delayed anymore. The presenter was telling the Committee that the Master’s Office was going to do something on training, especially in middle management. “Training must be a thing of yesterday”. Training is not done, but when does the Master’s Office think it would be able to do that, and adhere to the promise to the Committee that there will be training? Those are the areas that need to be taken care of, and where the Master’s Office assists the Committee to go forward. She asked for more information on the issue of the GF. It was reported that there was a problem, particularly on the practitioners’ side; there were those who were deliberately avoiding legal processes when dealing with processing claims. She requested that the Master’s Office give the Committee progress on what is happening in that area. There was supposed to be submission of the insolvency policy on 30 March 2021 for the approval of the Minister. Had this been done? If so, when should the Committee expect implementation of that policy? In the offices in Tshwane, there were three officials who were involved in corruption. The Committee wanted to hear from the Department if those officials been arrested for taking a bribe on issuing the letters of authority. Can the Department give the Committee information on that? The Committee is not tolerating issues of corruption. That office had “always been in trouble”. Can the Committee make sure that issues of corruption are dealt with speedily? It was reported that there were files that were missing, and some were burned, [showing weakness in] the security and monitoring mechanisms of the branches. Was there any effort in recouping that data or finding out more about what happened? How exactly was that going to be done? The issue of security is very important in these branches in order to make sure that corruption and fraud are dealt with. Ms Maseko-Jele asked what the recommendations of the SIU were on investigations which took place. She wanted to find out about preliminary recommendations. Were the recommendations adhered to? Was there a final report from the SIU on those recommendations and on those issues? Was there a report, and if there were issues the Master’s Office was supposed to take care of, have they been taken care of in terms of the SIU recommendations? She asked for an update on the cyber security breach in the Master’s Offices, especially in Pietermaritzburg, which led to the Office’s system and payments being shut down. The services were disrupted in that area.
Mr R Dyantyi (ANC) said that the presentation was a summary showing planning improvements. The Master’s Office said how it was planning to improve this office going forward. He appreciated that. The request he wanted to make took that into account because the planning improvements were not adequate compared to the services expected of this office. He was not asking the Master’s Office to respond once he tabled that request. It was a request that he would share with the Committee Secretary, and would go to the Minister in the form of written questions. He was expecting a response from the Minister on these issues within ten days. He requested that the Committee ask the DG and his team from the Master’s Office that they come back to the Committee and present what he called a “success and performance chart”. He felt that there was something big missing from the presentation. He was interested in how this office was of service to those who need it. Was it of service to those phoning every day, etc? This chart could say in a given week, these are the kinds of registered needs and requests the Master’s Office gets in all categories and with the speed to which it responds to those, what are the delays and failures? It is only when one has a sense of how this office is performing that one can say what needs to be improved. As an oversight body, the Committee’s duty is about the impact public funds are having for those who need it, and those who are entitled to it. It is fine and good that the Master’s Office has to plan how it delivers that service. Today, that is what it presented. It was not planning from a vacuum; there are people and families who are in dire need of this service. That part was missing in the presentation. He asked the Master’s Office to quantify the amounts, tell the Committee the reasons for delay where there were delays, and reasons for complete failure where there was complete failure—covering issues of financial as well as non-financial performance of the Master’s Office. The important thing was to look into this service vis-à-vis these issues. He wanted the Committee to get that kind of full presentation. If he had to assess the register of risk and mitigation, he must compare it with how this office was performing in all 15 offices. Once the Master’s Office sends that information back to the Committee, it should be in a position to call it back, and have it answer on these specific issues. He had “run out of patience” for plans. To what extent was the Master’s Office performing what it is paid for? He would send those questions to the Minister and the Committee Secretary. The Department must then respond to a list of issues in all of those categories. He could only be in a position to pose questions when the Master’s Office indicates to the Committee where it fails, where it succeeds, where the problems are, and where it needs help. When there are budget cuts, to what extent is this fund affected by that? People would talk about savings – is this area providing that category of saving to certain things? And yet, there might be savings, but people are not getting what is due to them. People queue every day, every week, or every month in the Master’s Office. This presentation was not giving the Committee that picture. Mr Dyantyi was eager to get that picture. It was on the basis of that picture that the Committee would say that it is either happy or not happy with the performance of the Master’s Office. It was very abstract from where he was sitting that point in time.
Mr J Selfe (DA) said that Mr Dyantyi was alluding to systemic failure at many of the Master’s Offices. That was of such a nature that ordinary people are unable to either make contact with the official who should assist them, or in the event that they are in contact with their official, the assistance that people get is not necessarily forthcoming. People were typically sent from pillar to post, and email correspondence or attempts to make telephone contact were invariably unsuccessful. He liked the plan presented by the Chief Master; he thought that in due course, things would improve. While these issues were being addressed, a safety net should urgently be created that would enable people to report their need for assistance in a formal way, i.e. in such a way that there is a reasonable expectation that people will be assisted. In light of this, will the Department look into setting up a helpline for those who are left unattended by the Master’s Office? This helpline would be a central point at which this can be reported, and from where the Department and the Office of the Chief Master can ensure proper assistance. It would be very good if MPs were able to have a dedicated email address where they could send complaints to the Chief Master. The Master’s Office gets inundated with requests for assistance and there is no ready entry point into its offices. He knew that the Master was an established office within South Africa’s system, but it struck him as incongruent that it has a Master – what happens if a female person was appointed to the position? “Would that be a Mistress of the High Court?” He felt that in due course, “we should think about a new title for this office that is gender friendly”.
Ms Newhoudt-Druchen added to Mr Dyantyi’s comments to get answers on the services that are actually rendered to people. It was nice to read that are 402 service points, and that 290 service points will be rolled out. Members were seeing in the Zoom meeting chat box that this is not actually happening. Services are not actually going to the people. Emails and phone calls are left unanswered. The Committee would like to see, from the questions that Mr Dyantyi will be sending, that it will get the actual picture of what is going on in the Master’s Office. The presentation and plans were “lovely”, but what was actually happening out there was a problem. The late Ms J Mofokeng raised the issue with the Master’s Office very often. “For example, why must a child write to the President to ask for help because the Master’s Office did not assist that child? Are the service points of the Master’s Office fully equipped, and what do they need to be equipped with in order to render the services? Are the service points equipped to render the services completely? Are there any public awareness campaigns? Do people know the different work that the Master’s Office does, and the different services provided? Does it have public awareness campaigns?”
The DG said the Department had started a debate on the name of the Master’s Office, because this name is a relic of the colonial era. Countries worldwide, even Britain, no longer use the title of “Masters”. The female Masters of the High Court [in South Africa] are called Masters; they are not called “Mistress”.
The Department was working on a call centre. It would want to have a call centre that can work until 20:00 and start early in the morning, and make sure that there is a dedicated focus on Master’s Office services. Part of what the Department has done in the courts is that as one enters the court, one will see the name of the court manager, as well as the area court manager and the name of the regional head. It is working on having the same arrangement at the service points, namely that the details of the Chief Master, Masters of the High Court are provided. The details would include a mobile phone number as well as an email address. After this meeting, the Department would be setting up an email address along the lines of “Chief Master@justice.gov.za” so that members of the public who would want to escalate to the Chief Master could do so. He knew that it would not be easy. He did the same, and created firstname.lastname@example.org, and his inbox is flooded with members of the public every day, but the Department tries its best to attend to those concerns.
The DG linked vacancies to what Mr Dyantyi was saying. The planning part should be understood within the context of the directive that came from the Committee, to try and turn around the Department. The Chief Master was appointed last year in November, and the DG started in March. The Committee would be seeing more of planning, because the Department had a mandate from the Committee to turn around the Department, and to develop a turnaround plan, which it had done. That was why the Committee saw the Department projecting that this is what it is doing. He did take the point, and in ten days after the questions had been sent to the Minister, the Department would reflect on that. There are success stories. The Department does get emails from members of the public who thank it for the services being provided. It is “not all doom and gloom”. There is work that is being, but at the same time, the Department appreciates Members’ comments.
Responding to Ms Newhoudt-Druchen the DG said that public education was being ramped up. From the departmental medium term financial strategy (MTFS) five-year plan for the electoral period, public education had been elevated to be part of the ten strategic objectives. The DG had been in Kimberley on the previous weekend, and everywhere there the Department has outreach, to make sure that members of the public are educated about the work of the Master’s Office. It was just the beginning, and the Department specifically focused on public outreach, including awareness, around unclaimed funds, particularly from the Guardian Fund. He said that the Department had about R2 billion that is not claimed. It had agreed to embark on a campaign to let members of the public know that there was the Master’s Office, the Guardian Fund, and of these other services.
Action on insolvency was not only about the insolvency policy, but more broad. If one looked at the legislation that was governing the work of the Master’s Office, that legislation was mainly passed during the British colonial era. As part of that commitment to review, replace and repeal apartheid and colonial era legislation, the Department was looking at all of those, and part of it will be dependent on the legislative programme of the Committee.
Adv Mafojane said that the Master’s Office had suspended two of the three officials from the Master’s Office in Pretoria who were involved in corruption. It had completed a disciplinary hearing of one of those three. It was about to commence with the other disciplinary hearings; the notice was to be served by Human Resources (HR). It was taking action against those people. This went up to the level of a Deputy Master. It was disappointing to find [corruption] up to that level, that the Department had officials who can behave in this way. But it did not spare her (the former Deputy Master). The Department shares the view of Government that it will not tolerate corruption.
The Department had received preliminary recommendations from the SIU for corrective action, or disciplinary processes, against ten officials. This had been accepted and referred to the Master’s Office HR. Of the eight to be dealt with together arising from the Bosasa matter, one of the seniors among them had already been secured by appointment of counsel by the Master’s Office to deal with that matter. The Department was not sparing anyone once it has a recommendation and report. [Comments at 2:19 were not audible and have been omitted from this meeting report.]
Adv Mafojane said he came into the space in November 2020 when he dealt with the reports and progress on the SIU. In December and the beginning of January 2021, it was quite clear that trying to give effect to the suspension [of an official] would be late. He enquired as to what happened, and why that suspension was not effected at the time. It was received some few months later, which made it difficult to implement. There had not been a complaint from the SIU that it did not manage to continue with its investigation, [or that it had been] hampered by that particular person.
He agreed with the DG on the issue of the title. The Master’s Office was still using that title of Master, but it should be changed and given an appropriate title.
Dealing with Mr Dyantyi’s questions later would help in elaborating on the other reasons. He could not add that slide later, or present a different presentation from what he had shared. He did not present on the key things that the Master’s Office had done in that period. The next time when the Master’s Office gave its progress [report to the Committee], it would move from planning and indicate what has been done.
The Master’s Office needed to beef up way it publicized its services. With the whole host of information available on its web portal, if it did not make people aware of that portal, people would not know of that. With some of the basic enquiries that people are doing, that information was on the Master’s Office web portal. It takes guidance, and accepts that it will have to beef up publicity, and tell people the relevant link. The information on the portal goes beyond contact information of the relevant person; it goes to some of the questions that people want to ask.
The service points were not rendering full services. For now, the people serving from the service points are more from the general cluster in the courts that were assigned to deal with estates. Such people would not have capacity to issue those letters of appointment. Some of those at the service points are not legally qualified to be appointed to deal with estates; they are just serving as a link to receive the document, and forward it through the link that is there between them and the Master’s Office, so that that information can be attended to and the necessary appointment letter be done.
Ms Maseko-Jele said that she did not hear a response on the issue of security.
Adv Mafojane replied that the Master’s Office was trying to ensure that the IT section in the DoJ&CD works closely with it to prevent any cyber-attacks, such as the incident that was reported in Pietermaritzburg in September 2020 (where there was an attempt to steal R10 million). The processes and systems it put in place ensured that they found out about the attempt to take R10 million when they did the end of the day closing activities. The follow-up measures that the Master’s Office put in place ensured the quick recovery of a substantial amount. The only amount that could not be recovered was R36 000. A large part of that amount was protected.
The DM said that the Department cannot deny that there is a serious problem of service delivery in the Master’s Office. What was not in the presentation is how many services are currently rendered, what is the situation in each Master’s Office, etc. The DM and the Chief Master had a meeting scheduled with Gauteng attorneys the following week, where the Department will be engaging with the attorneys’ suggestions. More attention needs to be given, and will be given, to the issue of letters of executorship. There were a number of comments in the chat box regarding the amount of time taken for these letters, e.g. eight months. There is the problem of more people passing away. There is also the problem that due to COVID-19, most of the Master’s Offices have been at 50% of the people working there, so it is effectively half the people at work at any given time. People are working together in big offices, so they are not particularly geared to the COVID-19 situation. The Master’s Offices have to look at what to do in the current circumstances to speed up services. With the issues of the numbers of people being assisted, the DM knew that in Durban, the Master’s Office would focus more on the people walking in rather than attorneys who it thinks it can interact with electronically, but that interaction does not always happen. He had raised this issue with the Chief Master. The Department understands that there are serious problems there, and it will be working on ensuring that the Master’s Office does attend to them, and ensure that there is an improvement under the current COVID-19 circumstances. The DM said that some of the complaints in the chat box were about the Mbombela Master’s Office, such as phones not working and a lack of service delivery. The Chief Master had spent some time in Mbombela a month before. It was clear that more needs to be done if people were still complaining.
Adv Mafojane commented on his being in Mbombela. It was part of what he had said on some of the achievements that one would have done in the last ten months since taking office. In Nelspruit, there was a serious problem. There were rumours that the delays are meant to try and extort money from the people. That pained him. The Master’s Office had taken two officials to intervene and change the situation, and lead the team there. Those two officials would also be changing the nature and the culture of doing the work. It was satisfied with the interventions that those officials have brought since around 5 May. In the greater part of May and June, the officials were organising and understanding, and setting up the situation. There had been positive results. The morale of the staff was getting better. The Attorney’s Association was starting to interact, and had given feedback to say that this intervention team should not be a “hit-and-run”. It should try to keep it and stabilise things. The Master’s Office took the team there because there was no Head of Office in the Master’s Office in Nelspruit. The one who left, left under a cloud and was in jail. In the recruitment process, the Master’s Office needed a person who is not only competent but also ethical. After the first round, the position was re-advertised. The results did not yield a candidate, but there was a change in the Nelspruit office, and it had turned a corner. The Master’s Office believed that more positive feedback will come from that office.
The DG said that the Master’s Office will be ready to come back with a different presentation, and to provide answers to the questions that will be raised with the Minister. The Department is focused on working on the Master’s Office space, and it is trying to fill all of the strategic vacancies there. He met with the National Treasury the day before (17 August 2021). The economic and fiscal situation is not looking well, and so no additional money will be made available. Some of the posts, no matter how much the Department may have wanted to fill them, may not be filled. It will have to see what it can do with what it has. This is part of a bigger challenge that all government departments are facing. As much as the Department will try to improve capacity through filling vacancies, it may not be possible. With the officials it has, through many interventions and training, it will have to try its best and do more with less. As part of the turnaround that the Chief Master has mandated, the mandate is clear: Turn around the Master’s Office services and improve service delivery. The Department is currently refining its service delivery plan, which the DG hoped to share with the Committee at some point. The Master’s services are a key part of the Department’s service delivery. With the service delivery improvement plan, the Department is clear that what it wants to see in this financial year is the improvement of performance of up to 50%, and to increase performance to above 80% in the following year. In the outer years – the third year – it hopes to be at 100%.
The Chairperson said that if the DG had joined Parliament in 1994, like the Deputy Minister (who then joined the National Assembly in 1999), and joined the Committee in 1999 like the Chairperson and Mr Swart, then all of them had heard a lot of plans. Since then, Members have heard a lot of these plans, so he asked Members to be pardoned if they had fatigue with hearing plans. The challenge was that plans were good, and were necessary for the Department to verbalise what it is thinking and what it wants to implement. If nothing changes, then the plans were useless. The Members read the Department’s presentations the day before. What was clear was that it only takes action against people who have been corrupt. It was not clear if the Department takes action for non-performance. This was not clear from what the Committee had read, and from Government generally. “We seem to have a high tolerance for non-performance”. Generally, the Department would be able to prosecute [people] in the case of those who have stolen money. But he still needed to see people being taken out of the system for continuous non-performance, which was a “frontal attack on South Africans and our democracy”. The Committee would be interested to know that in the last ten years, for example, how many people have received bonuses in the State Attorney’s Office, and what was the basis for that bonus when the institution was collapsing? He said he was quite sure that there had been a lot of people who had received bonuses. He said to the DM that this organisation or branch (the Master’s Office) is one that is really an “irritation”. Even on the day he died, [a person] who was from the Master’s Office, was bitterly complaining about the chaos there. Ms Mofokeng said the same thing; she was bitterly complaining about the chaos there.
The Committee had a presentation that from page one up until around page 12 showed acts of Parliament that had been passed. The Committee knew what the Guardian’s Fund needs to do—it is in the Act and the Committee knows that. As managers who have been employed, the Committee is interested to know what the Department’s diagnosis of the problem is, and what it is doing about it. The Chairperson suggested that Members treat this branch as one that is “in the ICU”, and which must report to the Committee every six months on what the Master’s Office is doing. The Chairperson was interested in Mr Dyantyi’s list of questions. He suggested that the Committee should be working on the list of questions, so that every time the Master’s Office comes to present, the Committee wants to see progress on each issue Members applied their minds to. When the Committee listened to the presentation by the Master’s Office, which it had “generously” listened to since it “took a very long time”, it created an impression that everything is under control, and that generally everything is normal. “That branch is abnormal”. Anyone who was going to tolerate that abnormality “has no interest of South Africans at heart”, and the Committee would not be part of that. He said that the Committee wants to see the DG rooting out non-performance from the Department. The Committee was not considering the fact that the DG and the Chief Master have been there for a few months. The Department has been there for many years. This branch has been there for many years. The onslaught of lack of service delivery to people has been there for many years. The Committee would be interacting more closely with the Department on progress that has been made. The plans were important, but it would leave those aside in favour of the progress, outcomes and impacts. There would be no need to have Parliament if it was going to accept such non-performance as normal. “It cannot be”. He asked if there was a problem in the HR department. It was still unexplainable why the filling of vacancies, and even funded vacancies, was taking so long. Even Parliament was able to do interviews, and it was meeting its deadlines. It was appointing commissioners, even during this time of the COVID-19 pandemic. What was preventing the Department from filling vacancies that are funded? Sometimes, the National Treasury takes money because departments are not filling up vacancies. There are people who are in an acting position permanently. He hoped that when the Committee interacts with the Department in October, there will not be a vacancy rate of 20% while people are not being served. He was interested in what the Department’s HR is doing. There were a number of vacancies even at the level of Deputy Master. “It is a crisis”. The Committee would not accept a situation where people think it must be nice to them at the expense of service delivery.
[Ms Newhoudt-Druchen wrote in the chat box: Is HR outsourced?]
He encouraged Members to ask questions to the Executive on those issues. That is what people expect of the Committee. The Minister must explain why these issues are not being attended to in the Department. In the next six months when the Committee meets the Department, it will be expecting that the Department would have taken charge, and will be reporting progress. The Committee did not want any preambles; it just wanted progress. It wanted to know which targets have been met, which ones have not been met and why. It would also want to know what actions were being taken against those people who are not meeting targets. The Committee would also want to get information on the bonuses of the last 10 years.
On Friday 20 August, there would be a meeting of the Sub-Committee on Correctional Services.
The meeting was adjourned.
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Magwanishe, Mr GB
Dyantyi, Mr QR
Jeffery, Mr JH
Maseko-Jele, Ms NH
Newhoudt-Druchen, Ms WS
Nqola, Mr X
Selfe, Mr J
Swart, Mr SN
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