Ease of Doing Business Bill: Committee Report; NW Provincial Departments on financial misconduct and progress with disciplinary cases; Establishment of Ethics & Disciplinary Unit; with Deputy Minister

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Meeting Summary

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Tabled Committee Reports

In this virtual meeting, the Office of the Premier (the Department) of the North West Provincial Government and its departments of Health and Education briefed the Committee on the financial misconduct and progress on the disciplinary cases from the 2019/20 to 2020/21 financial years.

The North West Premier said that he was concerned about the extent of the financial misconduct in the province. However, the Department was committed to ensuring that this was uprooted, as it was evident that the misconduct cases over the past few years heavily impacted on its efforts to alleviate poverty. The Premier’s Office then briefed the Committee elaborately on the financial misconduct cases for the 2019/20 and 2020/21 financial years for the North West provincial Departments of Education, Health, and Office of the Premier as well as on the progress updates with the associated disciplinary cases.

The Committee appreciated the naming and shaming of officials involved in financial misconduct cases, as it believed this would act as a deterrent for other officials. Members asked how long the Department take to conclude disciplinary cases in view of the merits of each case, on average. They raised concern about cases that were dragging for too long. Of the nine pending cases referred to on slide eight, how many cases of financial misconduct did the Department have in the 2019/20 and 2020/21 financial years? They were concerned that, in most cases, people were suspended with pay while other people were acting in their position, which costs the Department to lose a lot of money. Why do departments or government continue to pay persons that were suspended? Was it stipulated in the Constitution to pay these individuals until they were found guilty?

The Department of Public Service and Administration also briefed the Committee on the progress of the establishment of the Public Administration Ethics Integrity and Disciplinary Technical Assistance Unit (PAEIDTAU). The briefing focused on the Unit’s successes for the 2020/21 so far, in fighting corruption; implementing norms, standards and values; outlining and implementing the Anti-Corruption Task Team responsibilities; the challenges faced by the Unit; as well as the major plans for the 2021-2024 medium-term strategic framework.

Members claimed there were clear discrepancies in the Department’s report, as it omitted information on cases involving senior management, and it also indicated a complete lack of progress. They said the Department was inconsistent with its consequent management for different officials, as the money involved was irrelevant to the disciplinary actions taken against officials. Members proposed a form of guidelines to direct departments how it should address these matters.

The Committee welcomed the Department’s presentation and noted the challenges were a work in progress. It confirmed that it was committed to ensure that lifestyle audits are done.

It proposed that there should be a joint Portfolio Committee of the Legislature and the province to verify information, as not all provinces were represented in the Committee – which meant that Members could not rely on each other to validate information.

The Committee moved to adopt the report on the Ease of Doing Business Bill and noted the Democratic Alliance’s (DA) dissenting view. The Chairperson confirmed that the DA’s views would be captured in the minutes of this meeting. However, the Report would reflect that, overall, the majority of the Committee decided the Bill is undesirable and was accordingly adopted.

Meeting report

The Chairperson opened the virtual meeting, greeting the Members and welcoming all officials to the meeting. He noted the passing of Committee Member, Ms B Maluleke (ANC), during the recess and called all Members to observe a moment of silence in her honour.

He registered the apologies received from Minister of Public Service and Administration, Ms Ayanda Dlodlo, and apologies from Members: Ms R Komane (EFF), Ms C Motsepe (EFF), Inkosi R Cebekhulu (IFP), Dr M Gondwe (DA), Mr S Malatsi (DA), and Mr C Sibisi (NFP).

The Chairperson asked the Secretariat to confirm if this number of apologies may render the Committee inquorate.

The Secretariat said the Committee’s business of the day could proceed, as no decision would be taken, except for the last item on the agenda. He confirmed the Committee was quorate since six Members were in attendance; the report on the Ease of Doing Business Bill could be adopted.

The Chairperson noted the Secretariat’s response and commenced the meeting.

Opening Remarks by the Chairperson

The Chairperson said that, on 02 June 2021, the Committee received a presentation from the Public Service Commission (PSC) about the financial misconduct in the Public Service for the 2019/20 financial year. It then allowed Mr H Kruger (DA) to introduce his Private Member’s Bill, the Ease of Doing Business Bill, on the same day.

The PSC report flagged the State Security Agency (SSA) and the following Departments in the North West province: Office of the Premier, Education, and Health, for failing to submit records on financial misconduct. The Chairperson confirmed that the Committee wrote to the flagged departments, and the North West province submitted a consolidated presentation. However, the SSA wrote a letter to his attention, citing its reasons not to attend the meeting. He said the contents of the letter could be discussed at a later stage, as well as the merits of its arguments.

The Committee extended the invitation to the Department of Public Service and Administration (DPSA) on the progress made around the establishment of the Technical Assistant Unit, its successes, and failures.

For the last agenda item, the Committee would adopt the Committee report on the Bill proposed by Mr Kruger.

The Chairperson moved to the next agenda item and requested the North West Premier to make opening remarks before the presentations.

Premier’s Opening Remarks

Prof Job Mokgoro, North West Premier, thanked the Committee for the opportunity. He said the Office of the Premier (hereafter the Department) was concerned about the extent of the financial misconduct. However, it was committed to ensuring that this was uprooted, as it was evident that the misconduct cases over the past few years heavily impacted on its efforts to alleviate poverty. He said Members would have noted the efforts by law enforcement agencies over the past weeks and months at Provincial level.

The Chairperson interjected and asked the Premier to pause, as Ms R Lesoma (ANC) had a raised hand. He allowed Ms Lesoma to present her concerns.

Ms Lesoma said that she would rather wait for the discussions, as she did not want to disrupt the flow of the meeting.

The Chairperson allowed the Premier to continue.

On the recent gaps in compliance with making the necessary submissions, he said he highly regretted this. To date, the Department made the necessary corrections, and it would therefore be able to report on the three departments. The Office was especially concerned about the departments where large amounts were involved and recovery had not taken place to the extent that it should. The Premier said the Department continued to intensify its efforts both on recovery and where law enforcement agencies and consequence management were involved.

He requested the Director-General to provide details on the report.    

Office of the Premier Opening Remarks

Mr Mosweu Mogotlhe, Director-General (DG), Office of the Premier, greeted all Members and requested the presentation to be shared on screen. He indicated the presentation on the three Departments would be led by the Deputy Director-General.

Mr Mogotlhe apologised for the three Departments that did not appear in the PSC’s report. He explained this was mainly due to some technical difficulties between the officials, and that the information was always present.

He said that, after presenting to the Committee yesterday, 17 August 2021, management contacted the Committee Secretariat to check if the information received was sufficient in view of the letter that the Department received from the Committee’s Secretariat. The letter only referred to financial misconduct, but the Secretariat indicated on the day prior to this meeting that the Department should include additional information on financial disclosures and the suspensions. Mr Mogotlhe said that it had to gather that information swiftly and submit it to the Secretariat on the morning of this meeting, 18 August 2021. The supplementary information plus the presentation addressed matters of financial disclosure and suspensions within the province.

Mr Mogotlhe handed over to the Deputy Director-General (DDG) to take the Committee through the presentation.     

Briefing on the financial misconduct and progress on the disciplinary cases from 2019/20 to 2020/21 financial years

Mr Buti Chuma, DDG: Office of the Premier, greeted all Members and colleagues. He indicated that the presentation would include the financial misconduct cases for the 2019/20 and 2020/21 financial years for the North West provincial Departments of Education, Health, and Office of the Premier.

North West Education Department

The Department had five officials or cases of financial misconduct that were all at different levels of conclusion and involved different amounts of money.

On the supplementary information, Mr Chuma said he would take the Committee through the status of each case that involved large amounts of money and that should be recovered, particularly those that were concluded and the measures the Department was taking to ensure government could recover those monies.

He said that the cases were outlined in the presentation provided by the PSC. Where cases were still ongoing, this would be reflected in the “comments/reasons for no recovery” column. The supplementary information would provide further clarity on the progress of the identified officials that transgressed the law.

North West Health Department

Transgressors ranged from salary levels seven to sixteen; they were all at different levels and involved different amounts of monies. The templates in the presentation reflected the nature of the transgression and the findings where a case was concluded.

Of the 11 officials involved, three were found guilty. The processes were at different levels of recovering the money while others were still in process.

Between Education and Health, most of the cases were delayed in conclusions. For instance, this was mainly due to the chairperson of the hearing withdrawing at the time when the sitting must occur, or the transgressors were unavailable because of ill health.

Office of the Premier

This involved two cases that were both concluded. One official was dismissed; the other was found guilty and given one month suspension without pay, and was since back at work.

Supplementary information on recovering monies and financial disclosures

Mr Chuma clarified that these issues were not only limited to the recovery of monies of the cases, but it also involved information on the financial disclosure frameworks.

On the disclosures for the three departments in 2019/20, the Department and Education reported 100 percent of disclosures, while Health reported 96 percent. The 96 percent was because the appointed officials arrived when the system had already closed. However, a concession was requested, and it was granted. This was the reason Health also reported 100 percent in 2019/20 despite the system showing 96 percent, as this was in the system at the time. For 2020/21, all three Departments reported 100 percent of the disclosures.

With the financial disclosure framework, management considered it necessary for Departments to collaborate with the DPSA to provide annual training on workshops targeting ethics officers within provincial departments, before the commencement of the financial disclosure periods. Mr Chuma confirmed that management raised awareness across the province to all officials within provincial departments. Each provincial department had an ethics officer that enabled departments to collaborate to ensure the workshops on familiarising Senior Management Service (SMS) members with the disclosure system and the assistance happened as required.

There were challenges with disclosures on Middle Management Services (MMS) level, but this was being addressed. Currently, compliance was at 60 percent, but this was mainly because of the incapacity to engage freely with the e-disclosure and to assist at MMS level.   

The outcome of 2020/21 was not yet concluded as great progress was made to ensure workshops and interaction with MMS management was increased so that they could register 100 percent of the outcomes in the current financial year.

Supplementary information on recoveries of financial misconduct cases

Education

Mr Metswamere was found guilty of mismanagement of funds amounting to R52 300. He was currently paying back the money through salary deductions and the full amount was expected to be paid back by end of August 2021.

-A case was opened against Ms Botlhoko JML, with the Itsoseng Police Station, for financial mismanagement amounting to R1 244 734.48.

-Mr Morobe JM was currently undergoing disciplinary processes for a case of fraud and forgery amounting to R1 246 721.48.

-Ms V Ntlatleng’s case was dragging, as she was on extended long sick leave. However, she resumed her duties, and her case was proceeding.

-The investigation of Ms MMM Mocumi’s case of financial mismanagement of R1 580 470.56 was still ongoing and expected to be concluded as soon as possible.

Health

Dr T Lekalakala, former Head of Department (HOD), was charged with fraud and financial mismanagement amounting to R30 million lost to Mediosa. He was now in a preservation of his pensions done by the Specialised Tribunal. The cases before the Special Investigating Unit (SIU) must proceed to determine how best to recover the monies owed to the State.

On the Director for Capital Planning, Mr D Tshobotlwane, no recovery was made yet, as the arbitration was partially heard. This matter was before the Public Health Social Development Sectoral Bargaining Council (PHSDSBC).

Ms B Molamu, Senior Provisioning and Administrative Officer, was dismissed. However, she lodged an appeal to the Executive Authority (EA). Pending the outcomes of this, the Department would decide on the recovery of State monies.

Office of the Premier and Concluding Remarks

On the Office of the Premier, the case of NEPO was before the Directorate of Priority Crime Investigations (DPCI) and the South African Police Service (SAPS). This outcome would guide the Department on the recoup of money owed to the State.

In instances where any department did not achieve 100 percent in financial disclosures, the Department raised such matters with relevant accounting officers to take the necessary actions. This was mainly to undertake consequence management.

Mr Chuma concluded the presentation and handed back to the Chairperson.

The Chairperson opened for discussion.

Discussion

Ms M Kibi (ANC) asked questions on Health. She noted that the presentation reflected a total of R45 million incurred on financial misconduct that may not be recovered. Why and how was this the case?

On average, how long does the Department take to conclude disciplinary cases in view of the merits of each case? She raised concern about cases that were dragging for too long. Of the nine pending cases referred to on slide eight, how many cases of financial misconduct did the Department have in the 2019/20 and 2020/21 financial years?

On the employee facing 96 counts of financial misconduct and currently declared medically indisposed, was this declared during or prior to the course of the disciplinary process? Was the official suspended with full pay or not? She explained that, in most cases, people were suspended with pay while other people were acting in their position, which costs the Department to lose a lot of money.

Why does the Department allow cases to drag for more than 90 days? She emphasised that cases were taking too long to be concluded.

Ms Lesoma started with the issues she wanted to raise earlier. For record purposes, she indicated that she represented the Committee at Ms Maluleke’s funeral, as Parliament paid for her travels. She noted the Chairperson’s oversight of the new Minister and Deputy Minister (DM), as this was the DM’s first meeting with the Committee.

The Committee undertook to ensure the provinces informed by the Auditor-General’s (AGs) and the Public Service report accounted and that it monitored progress in areas where maladministration that involved finances was considered. The Committee sought to ensure it assisted the country and government not to recycle officials that committed wrongdoings at all spheres of government, especially poor performing SMS members. Instead, this should be informed by robust departmental or sphere of government performance assessment.   

On the R45 million Ms Kibi referred to, she requested the Department to provide an overview or a survey on the standard of paying service providers within 30 days, particularly where it involved the officials in question. She noted that there might be no relationship between the two, which was a serious concern for her because this was damaging small companies that benefited from government tenders.

She extended her appreciation for the Department’s observation that the letter written through the Chairperson’s office did not cover most of the issues. However, its efforts to add additional points it considered to be of interest to the Committee was appreciated. The Committee was encouraged by the naming and shaming of officials, as it was certain this would act as a deterrent for other officials. While the PSC’s reports tended to be public information, she argued officials would repent since it was elevated it on this forum.    

Ms Lesoma supported the project of officials paying back the money to the State that they unduly benefited from so that it could be used to improve the standard of living of people.

Members were aware of the budget cuts and the re-direction of funds for Covid-19. If the gaps in this are not closed, this could potentially encourage officials to mismanage public funds.

The Committee was looking forward to assessing if the systems were geared towards discouraging offenders to reoffend, and if there was room for other officials to commit wrongdoings. It was encouraged to meet other departments and ascertain its progress on some of the issues.      

Mr J McGluwa (DA) said that the issues of the North West province were close to his heart, as he came from this province. While there had been several developments in the province, it was currently faced with various disciplinary hearings. He said that this was a sad day for both the community of the North West and the country, as it was presented with some of these cases from the Premier’s Office, who was not in good standing with his party and was also under discipline.

On the report, the developments, and the constitutional duty of the Premier, Mr McGluwa said the Premier should honour his constitutional duties. He explained that when the Premier was under suspension, one of the decisions taken was that the leader of business in government and the Chief Whip would give guidance on the operation.

He asked the Premier to respond to his core questions on the reports of the disciplinary hearings and cases. Did the factionalism within the province have any effect on the Departments, if the Premier was deployed to address the issues?

In Health, there was often an absenteeism of the chairperson or no chairperson at all, the country was in lockdown alert level five, and there was a break in the Department. Mr McGluwa said that he was in possession of a document that he would forward to the Chairperson. This was for the Committee to consider other departments and provinces and to request the Portfolio Committee to sit in, similarly to when the Premier’s Office was before the Committee.  

His concern was on the report table on matters of disciplinary cases. That report to the Portfolio Committee was tabled by the Member of the Executive Council (MEC), but there was no correlation with what was presented to the Committee today, 18 August 2021. Mr McGluwa said that there were discrepancies, and he wanted answers on this.

On officials who were redeployed, the report lacked consistency and indicated a complete lack of progress. He questioned how an official who was found guilty and owed R52 000 could be back in office with the money deducted from their salary, while all the other cases involved dismissal. He emphasised that the amount of money was irrelevant, and that the Premier’s Office should address this inconsistency. He proposed a form of guidelines to outline how departments should act in this manner.

The November 2020 report indicated disciplinary action was taken against Mr B Redelinghys and was redeployed within the same department. However, the report presented to the Committee did not indicate that he had been disciplined but rather that the matter was ongoing. Mr McGluwa claimed someone either misrepresented the report to the Premier’s Office or to the Committee, or towards Parliament. On the relocation of cadres within the organisation, he said this was difficult and created more problems for the Committee to address, as it required clarity on this issue as well as on Mr Redelinghys’ case.

On Dr Lekalakala’s case in Health, Mr McGluwa said that, at the time, he was a member of the North West Provincial Legislature, which sat the entire day until 05h00 in the morning; it called in the Police, and former chairperson of Standing Committee on Public Accounts (SCOPA). He confirmed that there was a case on this matter, and questioned why there was no reporting from the Premier’s Office on Dr Lekalakala’s case.

Mr McGluwa questioned why there was no criminal case against Mr B Setswambung in the Premier’s Office. The redeployment and factionalism within the organisation were detrimental to the province. How could the Department not go to the Police to open a case? How did the financial department, which is directly under the Premier, not manage to do this, as this was a serious offence?

He said he was willing to send the report. There were cases where a marathon of managers was suspended on one day in Health, but it did not reflect in this report. There were also hearings for the manager of the pharmaceutical services, the Chief Director of tertiary specialised hospitals, the Deputy Director of pharmaceutical services, and the Director of Capital Planning, but this was not presented to the Committee.

On the study groups and correlation between various parties in different spheres of government, Mr McGluwa said that this happened under the Democratic Alliance (DA). He explained this was the reason he presented the information, and that he was willing to send it to the Committee to revisit what was tabled before it. He emphasised what was tabled before the Committee at the time was not the same as what was currently tabled before it.          

Ms M Ntuli (ANC) questioned why the recouping was not moving forward. At what point would a person who misappropriated government funds be fired? She questioned if there was a policy or guide that instructed departments to recoup, or if departments had the scope to determine when to recoup rather than to dismiss the individual.

On cases being prolonged: what guided the Departments when a case was lodged? Does it have a deadline, or could it continue as long as possible? Were there policies in place for large cases to guide departments on the timeline to conclude? She reckoned that prolonging cases disrupted the work of government.

Why do departments or government continue to pay persons that were suspended? Was it stipulated in the Constitution to pay these individuals until they were found guilty?

On the vetting: do departments vet employees whenever there is a post? She said that this would clarify what Ms Lesoma alluded to on the recycling of employees. The vetting process would indicate if an employee committed wrongdoings in other departments, during the appointment phase. What measures were taken for individuals to undergo vetting before they are employed?

The Chairperson welcomed the Deputy Minister (DM) of Public Service and Administration, Dr Chana Pilane-Majake, to the meeting.

The DM thanked the Chairperson for the introduction and greeted all Members on the virtual platform.

The Chairperson allowed the Premier to respond to Members’ questions.

Premier’s Responses

Prof Mokgoro responded to the question on recycling of officials. This was something the Department was trying its best to ensure does not happen. He confirmed that it happened in the past, but he urged the DG to ensure any further recycling that might be happening to be treated accordingly. He said these matters should be reflected in the Department’s monthly and quarterly reports.

On the payment of service providers, he said that this matter was reported on monthly. While the National Policy is 30 days, over the years, the Department tended to make this less than 30 days and its performance has been good.

On the reduction of funds, the Premier said that he was not able to respond with the required details. However, because of COVID-19 over the past year, the Department underwent two budget adjustments in an unprecedented manner. These results would be reflected in the 2020/21 audit report, as the audit process was currently underway.  

On matters of party discipline of the Premier, he said that those matters were sub-judice and were best handled at party levels.

Prof Mokgoro said that the matter on constitutional duties was unclear to him. However, this matter was certainly recognised. It was inconceivable to see and expect any official, whether political or administrative, especially political officials, not to comply with constitutional duties.

He noted the Chairperson’s question about Health and confirmed the State’s legislative arm of government was addressing this matter.

On the question of no correlation of the disciplinary cases, Prof Mokgoro requested the DG to respond to the issue that there was no consistency as some officials were paid, some could repay, and others were dismissed. He said it would be useful to ascertain the arrangements in place between the DG and the administrator around section 100, because the accounting officer was essentially still the administrator and the number of issues raised in this meeting could be clarified further.

He asked the DG to respond to the issue of Mr Redelinghys.

On the Dr Lekalakala matter, Prof Mokgoro said that this was common cause, and the Department does report on this. The necessary actions were taken, as Dr Lekalakala was charged with fraud and financial mismanagement. The measure to recover the R30 million lost to Mediosa was the preservation of his pension, undertaken by the Specialised Tribunal. Summonses were issued to recover these monies, and from the deliberations by the Department with SIU, investigations must proceed to ascertain what other assets, besides pensions, could be obtained for additional recovery of the lost State funds.

He explained that Mr Setswambung was subjected to a disciplinary process that extended over a three-year period. He was eventually found not guilty and consequently resumed his duties.

Prof Mokgoro asked the DG to respond to the issue on the marathon of managers suspended in Health. The DG would also provide more details about why the Department was stuck with recouping.

On the prolonging of cases, one example was Mr Setwanbung’s case, which took about three years. Incidentally, the case of another senior official that was similarly charged around the ICT matters concluded, and he was dismissed.

He said that the question of payment during suspension was a legal matter that related to both the Constitution and the Labour Relations Act. However, it would be useful for the DG to respond to this.

The vetting process became more robust based on the Department’s experiences in the past. In this process, the recycling of officials was handled very effectively.

Prof Mokgoro concluded his responses and requested the DG to fill in the gaps.      

DG’s responses

Mr Mogotlhe said that if the presentation did not meet Members’ expectations, this should be understood within the context of the letter received from the Committee, as the presentation focused on financial misconduct. The Department adopted the process and format as prescribed by the PSC, and the information that was not included in the report was influenced by the initial understanding of the Committee’s letter. He explained that this was the reason the Department endeavoured to provide supplementary information to fill the gaps in the report, after discussing with the Secretariat, and the reason why the report was limited. Going forward, the Department would improve to ensure effective communication between itself, the Committee Secretariat and the Committee Chairperson to determine if the presentation would meet the Committee’s expectations.  

On the issue of recovery, this happens based on going to court. The recoveries often involved an employee and a third party. For instance, if it was a supply chain management issue where an employee was overpaid or was granted a tender that was not supposed to be granted to that individual, the Department would then go to court. If the SIU was engaged, it would refer the matter to the Tribunal. Once that process commenced, it would then be then outside the purview of the accounting officer, as it would involve the judges and magistrates within the judiciary. The timeline of that process, in compliance with its own procedures, would be beyond the control of the accounting officers. This was the main reason for the prolongation, as it must follow the judicial processes beyond the accounting officers.

He assured Members that, where financial misconduct was involved, the AG would identify it and classify it either as irregular or wasteful expenditure. That amount would remain in the Department’s annual report and financial statements until a satisfactory explanation could be made on the recovery. Mr Mogotlhe clarified that it was therefore not lost to government, as the AG sought to assure that everything was done by accounting officers and departments to recover the amounts recorded as irregular or wasteful expenditure. These mechanisms would satisfy Member; processes for recoveries were in place with the audit process and the annual reports of departments. The Public Finance Management Act (PFMA) and National Treasury (Treasury) regulations are also quite clear about the necessary actions to be taken for irregular, wasteful, or fruitless expenditure.

On the reasons for departments taking long to finalise disciplinary cases, Mr Mogotlhe explained that, once a presiding officer and a prosecutor are appointed, it is another process beyond the accounting officer, as they could merely remind and make follow-ups to ensure the relevant individuals expedited the cases. If the accounting officer becomes too involved in the matter, it could compromise the case, because principles of fairness and equity become operative in disciplinary hearings. For instance, a typical case was mentioned in the presentation, where an individual becomes ill during the disciplinary proceedings for an unreasonable period and the process therefore cannot be completed. The Department was concerned about these delays and deliberated to reintroduce creating capacity for the provincial administration. This would be in the form of appointing people within the relevant departments, being specifically designated to address this matter. The Department was looking into this, as it would hopefully make a positive impact on the turnaround time to complete disciplinary proceedings.

He noted that the Premier addressed the issue of suspensions that must be with pay. At the monthly meeting with all the HODs in June 2021, a decision was taken that, once disciplinary proceedings commenced, HODs must consider recalling those people back to work. This was because the investigation would be expected to be completed and the evidence secured. If they cannot resume their previous positions, they should be placed in other positions where they could be effectively used by the department in the meantime. Each case would depend on its own merits, and the perceptions of the public should be considered. For instance, if someone was accused of stealing R2 million, suspended for 60 days, and back at work, the perception could easily be created that government condoned corruption.

Vetting happened at two levels – on appointment or criminal records; a person can only be appointed if it is positive. For senior management, an additional second level is used to vet people through the SSA to ensure management has comprehensive knowledge about the reliability of the employee and potential vulnerabilities they may have in conduct, and so forth. This would ensure knowledge about what they may or may not access in the Public Service. Mr Mogotlhe indicated that a policy on this was being implemented.

On the issue of payment of service providers within 30 days, the Department endeavoured to do its best in this. However, the invoices submitted to government were often not genuine from service providers. For instance, when a contract is being implemented, payments happened at various stages. Sometimes, services providers try to take chances by claiming what was not due to them. As a result, a dispute would often arise between the service provider and the Department. Once this happens, the 30 days cannot be counted. The 30 days was only counted from the day the invoice was certified to be correct and in accordance with the contract. Where a valid and certified invoice is received, the Department ensured that it was paid within 30 days, but there are instances where it would take longer than this.

Mr Mogotlhe said that the DDGs could respond to the other specific matters.

As a province, there were many matters that could be recorded. He said that it could possibly provide the Committee with another supplementary report with the criminal cases that were opened at the SAPS – including the case numbers where it was before court.

On the case in the Department, concerning another Chief Director who was dismissed, the Department went to court. It terminated the contract through the High Court and obtained an order, and the company involved appealed to the Supreme Court of Appeal. The Department was awaiting the outcome of this case, but it does undertake follow-ups on these matters. It was, however, unable to provide some of these details because of the specific request for the presentation. This information could be provided with a supplementary report to indicate the case numbers and the stage of each matter in the recoveries.

In terms of the PFMA and the Treasury Regulations, the Department was obliged to recovery government money spent when it was not due.

Mr Mogotlhe concluded his responses and requested the DDG to fill in the gaps.           

The DDG said that the Premier and the DG’s responses covered the questions, and handed back to the Chairperson.

The Chairperson moved to the next item on the agenda. He invited the DM to make opening remarks before the presentation.

Deputy Minister’s Remarks

The DM said that she was happy to be part of this team again and appreciated the work the Committee was doing.

She indicated the DG of the DPSA requested her to submit her apology, as she had to leave the virtual platform to attend another meeting with Treasury at 11h00.

The presentation would outline the progress made on the establishment of the Public Administration Ethics Integrity and Disciplinary Technical Assistant Unit. The DM handed over to Dr Salomon Hoogenraad-Vermaak, Chief Director: Public Administration Ethics, Integrity and Disciplinary Technical Assistance Unit (hereafter ‘the Unit’), to lead the presentation.

Briefing by the DPSA on the progress made on the establishment of the Unit and its success

Overview 

Dr Salomon Hoogenraad-Vermaak, Chief Director: Public Administration Ethics, Integrity and Disciplinary Technical Assistance Unit, DPSA, provided an overview and the aim of the presentation.

The Unit does not have a mandate to conduct any investigations but, through the cooperation with other investigations, it has scope to assist with investigations as required. In terms of the regulations to the Protected Disclosures Act, the Unit is one of the entities that a protected disclosure could be made.

The Unit provides support to law enforcement agencies that have the investigative mandate; it assists them by identifying the Public Service individuals in cases, monitoring if a disciplinary case was opened at the departments. If a case is a criminal case, the Unit follows up on that.  

Successes: 2020-21

Corruption

The Unit focused on fighting corruption – particularly public servants involved in corruption. It focused on strengthening oversight, cooperating with the institutions that have the mandate to investigate. It adopted policies between 2014 to 2019. This included outing Public Service employees involved in doing business with the State.

Via the Fusion Centre, which is under the Anti-Corruption Task Team, the Unit actively focused on specific reported cases to address them in a collaborative manner. The Unit verifies the appointment of individuals to ensure they are Public Service employees as the Personal and Salary System (PERSAL) was not always updated.

The Unit was currently looking at a list of 10 100 employees involved in Unemployment Insurance Fund (UIF) and Social Relief of Distress Grant (SRD) fraud. It is in the process of liaising with about 120 departments involved to indicate the people involved and to ensure disciplinary steps are taken while the corruption charges were investigated. 

When the Unit started, there were initially almost 10 000 Public Service employees identified as conducting business with the State. This dropped from 490 in September 2020 to 96 in June 2021 when it confirmed that the information on the Central Supplier Database with the data contained on PERSAL. It discovered that most of these people moved to target loopholes in the beneficial ownership section where they commit criminalities through the name of a family member or spouse.

Norms, standards, and values

The Unit focused on norms, standards, and values to reinstall professionalisation in the DPSA. This was done through strengthening the internal mechanisms to address ethics and corruption. It provided technical assistance in this area by setting norms and standards, capacity building, and monitoring and evaluation. It also developed various guides to direct departments, and especially ethics officers, to be skilled to do the work that would impact on fighting corruption, and to build an ethical environment.  

The Unit was finalising a range of online courses that would form one training activity where ethics officers could access it online and regularly refer to it to retrain themselves. The first course would be rolled out Friday 27 August 2021 and the rest would thereafter be rolled out to the ethics officers.

It conducted various Ethics Officer Forums that would be available in September 2021 under the Public Service Month Special Dedicated Ethics Officer Forum, where it would specifically look at discipline management, lifestyle audits, and conflicts of interest.

Training programmes were being developed on the Guide on Discipline Management.to strengthen discipline management through precautionary suspensions and to address the cost of this and unnecessary discipline management action.  

Anti-Corruption Task Team Responsibilities

The Unit is a member of this Task Team where it has specific responsibilities, the most prominent being coordinating international work, especially that required for international anti-corruption instruments and conventions. It played a role to support the National Anti-Corruption Strategy where it was represented on the Steering Committee.

Challenges

The completion of the macro-restructuring of the DPSA took longer than expected and impacted on the establishment of the Unit.

The proposed structure of the Unit was not approved by Treasury, and due to further budget cuts, posts of the Unit were terminated. The remaining posts were filled, and it would fill a total of 12 posts for this Unit.

Poor information management – departments do not capture data on PERSAL, so all information must be verified and analysed by hand. This is time-consuming and impacts on the Unit’s ability to respond quickly. Electronic databases are being developed, with the focus on developing a central information system for the Unit to cross reference data and identify trends, weaknesses and assistance needs. However, this was also budget intensive and time-consuming.

No formal cooperation mechanisms existed between the Unit and role-players in the ethics and anti-corruption field. Agreements and Memorandum of Understanding (MOUs) were concluded or are in the process of being concluded with various entities.

Major plans for 2021-2024

The Unit will focus on addressing corruption through the measures in place and to look at building the departments to bolster against corruption of Public Service employees.

It will look at Technical Assistance to address the professionalisation of the Public Service through improved implementation of its policy – such as conducting business with the State, performing of other remunerative work, discipline management in particular, and implementing lifestyle audits.

Improvement of discipline management: especially around capacity building, addressing outstanding precautionary suspensions and the costs associated with it.

Corruption: to refer cases reported to the DPSA and to ensure departments followed through with disciplinary measures. To address all identified policy loopholes, especially on concluding investigations. It will liaise with the SIU and other agencies to identify how it could address the policy gaps, particularly in view of beneficial ownership.

To synchronise all three levels of Public Administration – national, provincial, and local government – to establish norms and standards on ethics, anti-corruption, and discipline management in the implementation thereof.

Dr Hoogenraad-Vermaak concluded the presentation and handed back to the Chairperson.

The Chairperson opened the floor for discussion.

Discussion

Ms Lesoma welcomed the presentation. She said it was very encouraging, as it was linked to the first item the Committee dealt with.

There has been a case in 2021 with eThekwini Municipality, for lifestyle audits of employees. A court determination was made, which suggested that it did not have a legal standing. She was unsure if this was only at the municipality level or not, but the Committee asked the department to look at it and the implications on the Committee’s area of operation. However, she emphasised the Committee was still committed to do the lifestyle audit.

Besides the need of institutionalising the professional Code of Ethics in the Public Service, has the Code, itself, been established that it could be shared with the Committee?

The Committee was eagerly awaiting to do oversight in its area of operation on the State-Owned Enterprises (SOEs) and other government entities. Are the employees appointed as Board Members to entities only those who represent the specific EA in their capacity as shareholders in government entities? Or are employees appointed in their private capacity and not representing government? In view of the lifestyle audit, she was aware that they would have received a written submission from the EA for them to moonlight. If they were appointed in their private capacity, their main employment would not be affected as the EAs would check this to ensure close performance monitoring.

On the ethics, what are the checks and balances to ensure people do not ask their subordinates to do their executive functions as board members and government employees?    

What strategies are in place to ensure full compliance with the financial disclosure over the Medium Term? She said this could be linked to her example of the eThekwini Municipality court case.

Has any employee been subjected to disciplinary procedures by the Unit thus far, where the case has been referred to the law enforcement agencies for dismissal or recoveries of money involved?

On the ethics officers: how many are appointed in each department? Or does it depend on the size of the department?

The Chairperson thanked Ms Lesoma for her questions and handed back to the DPSA to respond to her questions.  

DPSA Responses

Dr Hoogenraad-Vermaak responded to Ms Lesoma’s comment on the eThekwini Municipality versus the departments. The DPSA was aware of the newspaper article and it has looked at the issue. The issue addressed in that article was on municipalities. As to the municipalities, he said he was not aware of any legislation that allowed lifestyle audits. However, with National and Provincial departments, the legislation is in the Public Service Regulations. He explained that regulation 22 provided that the HOD can, through its risk management process, introduce lifestyle audits. This was consistent with the Protection of Personal Information Act (POPIA). Section 2 (a)(i) of POPIA gives effect to section 36 of the Constitution to provide that the right to the protection of personal information is subject to justifiable limitations. Section 6 (1)(c)(ii) provides that POPIA is not applicable in instances where personal information is required by a public body for the purposes of the detection, prevent, investigation, and prosecution of criminal offenses, and so forth. He confirmed that the DPSA looked at the legality of lifestyle audits and, with the Public Service Regulations, it was a legal process for National and Provincial level, as it is a tool to assess wrongdoing. The DPSA will look at the municipal level to ascertain if there is information or legislation that would allow lifestyle audits in municipalities.   

On the establishment of the Code of Conduct, Dr Hoogenraad-Vermaak said that there is a Code for public servants in the entire Chapter 2 of the 2016 Public Service Regulations, which he could share it with the Committee. It was reviewed in 2016, and the DPSA was currently in the process of reviewing it again, as there were still many loopholes around the use of media such as Facebook and Twitter that were still not covered in the Code.

On employees appointed as board members, Dr Hoogenraad-Vermaak explained that, in regulation 13 (c), members of the Public Service were allowed to be board nembers if they represented government but not if they were representing themselves or their own benefits. If they want to represent themselves, they need to request permission to do other remunerative work. However, the provision is then that they are not allowed to conduct business with the State – the entity that they sit on the Board, as it would be a criminal offense.

There are strategies in place to ensure full compliance, especially for MMS members to the financial disclosures. It took almost seven years for senior management to move from a very low level of compliance up to 96-97 percent. With the MMS, it was currently in the second year and standing at 60 percent, which is quite good but still not what it should be. The DPSA should focus on identifying the departments that have low MMS level compliance and to engage it on a direct basis to provide them with the necessary skills to comply. This could be done through compliance programmes in the departments and advocacy and awareness.

On the disciplinary procedures, this Unit has not been involved in any disciplinary proceedings against other departments or units to date. The DPSA has availed some members of its pool to become presiding officers, but it was not involved in managing the process.

On the ethics officers, he said that this depended on the size of the departments. There were about 340 ethics officers. However, these members were not appointed but rather designated. They therefore have other work in addition to the work of an ethics officer. This is why the DPSA focused on making the work of ethics officers a lot easier by providing them with guides, posters, and material to use for advocacy and awareness. This would be the focus in the Public Service in September 2021 where the DPSA would support ethics officers and provide them with communication details on the challenges in departments.

Dr Hoogenraad-Vermaak concluded his responses and noted he missed one of Ms Lesoma’s questions on systems, as he could not recall what it was.  

The Chairperson asked Ms Lesoma to repeat her question.

Ms Lesoma said that some of the questions were indirectly answered during the presentation. Her question was if it was embedded within the normal workings of the system. However, she said Dr Hoogenraad-Vermaak’s last response covered it, as he mentioned the ethics officers had their substantive jobs they were employed to do, and that the ethics officer was an additional one. This meant they would not neglect their substantive jobs and that it would balance. She clarified her question was to inquire if there were any systems to check that balance so that those officers do not neglect their substantive jobs.

Follow-up Discussion

The Chairperson allowed Ms Lesoma to raise her concerns from earlier.

Ms Lesoma said that her hand was raised earlier, as she had sought to make a recommendation before the North West issues were concluded. The Committee might need to have a standing meeting with law enforcement agencies.

When the Committee invites Premiers’ Offices, it should consider if it would be ideal to have a joint Portfolio Committee of the Legislature and the province to verify the information. She explained that this did not imply that the Premier’s Office and the provincial departments might deliberately mislead the Committee. She believed that this could work, as not all provinces were represented in the Committee, and Members therefore could not necessarily rely on each other to verify the information. Members could even be wrong themselves, and since there is nobody to support and confirm what was said, it might be taken as the whole truth.

She proposed that the Committee should henceforth apply its mind to consider how it could achieve this. She was aware that the Department of Cooperative Governance and Traditional Affairs (CoGTA) has joint Portfolio Committees of the Legislature as well as with this Committee.

The Chairperson interjected as Ms Lesoma’s network was disconnecting.

Ms Lesoma said that, since the Committee oversights on the Department of Planning, Monitoring and Evaluation’s (DPME) work, it might be beneficial to the Committee to suggest mitigating factors because of the laws. The question of where it could go wrong is an issue of training that the National School of Government (NSG) could address.  

The Chairperson invited the DM to respond.    

Deputy Minister’s Closing Remarks

As a country and government, it managed to successfully deal with corruption. Most importantly, the DPSA finally has a fully capacitated unit to fulfil its mandate. It has a lot of work to do, beginning with the training awareness of managers, and mainstreaming this mandate across government. Besides mainstreaming, it was also about developing tools to be utilised for monitoring, as it must have an impact towards clean governance that would lead to clean audits. This would require a big role from law enforcement offices and the AG in the kinds of tools that would need to be utilised to ensure clear and proper monitoring. The way these tools would be responded to would be of utmost importance for the DPSA not to find itself in a situation where it continued to do work that did not show any results.

Ultimately, it is important to deal with corruption that was depleting a lot of State money meant to develop and advance the lives of South Africans. Once the DPSA could be successful in this, it would really assist the country to move forward.

The Chairperson thanked the DM for her comments and moved to the last agenda item.      

Consideration and Adoption of the Committee Report on Ease of Doing Business Bill

The Committee Secretary shared the Report on screen. The report had been sent to Members on the previous Friday, 13 August 2021.

The Chairperson asked Members to move for the adoption of the Report.

Ms Lesoma proposed an amendment to point eight in the last sentence “Furthermore, the Bill objects seek to address red tape experienced by small business…” She proposed that the word “business” be pluralised to ‘businesses’, as there were many that could be addressed by the relevant committee.   

Ms Kibi moved for the adoption of the Report with Ms Lesoma’s corrections.

Ms V Malomane (ANC) seconded the proposed amendments.

Ms Ntuli moved for the adoption.

Dr L Schreiber (DA) asked for one addition to be made in the final section. It should be noted that the DA supported the desirability of the Bill.

The Chairperson said that it would be noted.

Ms Lesoma said she was unsure if Dr Schreiber’s addition that the DA reserved its right would be captured or included. She said it was a Committee Report, hence it would be a majority report. She questioned if this was correct, so that the Committee could comply with the protocol of writing such reports.

The Secretariat clarified Dr Schreiber’s comments would be captured in the minutes of this meeting. However, the Report would remain as is, stating that the Committee decided that the Bill is undesirable.  

The Chairperson agreed. He said that it was his understanding too.

Dr Schreiber confirmed the Report could easily state that the majority view of the Committee is that the Bill is undesirable, while still noting the minority position. He said this was standard practice in all the other reports that the Committee submits, and he questioned why this space could not be made available. He did not appreciate the idea that the voices of minority or dissenting views were being muzzled by Ms Lesoma’s comments. He emphasised the DA held a different view from the rest of the Committee, and it could be captured as such without changing the Committee’s decision.  

Ms Ntuli said that was the presentation of the Report on the Committee’s deliberations, but it was not deliberating in this meeting. She agreed with the Secretariat that the minutes of this meeting would reflect what Dr Schreiber referred to.   

The Chairperson agreed. The minutes would reflect that overall, the Report was adopted by the Committee.

He thanked Members for their contributions.

The meeting was adjourned.

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