Gauteng Province on progress in addressing challenges raised in AGSA COVID-19 Special Report ; Progress report on implementation of TKLA

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Cooperative Governance and Traditional Affairs

18 August 2021
Chairperson: Ms F Muthambi (ANC)
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Meeting Summary

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The Committee discussed at length the findings of the Auditor-General (AG) and the Special Investigating Unit (SIU) on the abuse of Covid-19 relief packages for municipalities and other organs of the state. The SIU had issued a special report dealing with over 50 Covid-19 related allegations of impropriety involving 189 state institutions and entities. The Committee was mandated to follow up with all nine provinces regarding consequence management in respect to those individuals implicated in unlawful self-enrichment through the misuse and abuse of the relief funds. This meeting was therefore part of a series of follow-up meetings the Committee intends to convene with the provincial governments.

The Committee was told that various findings had been made at six Gauteng municipalities. These ranged from non-compliance with the procurement process, the spending of COVID 19 funds for non-COVID-19 related activities, and weaknesses in controls over the procured goods and services. Recommendations had been communicated to the relevant municipalities on controls and, the Department of Cooperative Governance and Traditional Affairs (COGTA) would meet with the municipalities' leadership quarterly to assess if these recommendations were being implemented. 

Some Members expressed concern about the province's response to questions raised on preventive methods to deal with maladministration and financial mismanagement, in accordance with the findings of the AG, which they felt did not address the present situation. They said a response on urgent matters should be given immediately, and the Committee could not allow a situation where would be told that it would get a response in the future. The Chairperson was not impressed by the unconsolidated presentation from the province, as there were missing presentations from the Departments of Education, Social Development and Economic Development.  

The Committee was also briefed by the Gauteng Department of Cooperative Governance, Human Settlements and Traditional Affairs on the province's progress with the implementation of the Traditional and Khoisan Leadership Act of 2019. Most of the Members felt that the Department of Traditional Affairs (DTA) was not entirely clear on the process of implementing the Act. The discussion became heated when the DTA failed to present the Committee with the terms of reference and the timeframe of the Commission on Khoisan Matters. The Chairperson was concerned that based on the presentation given by the DTA, the implementation of the Act may never happen in their lifetime.

Meeting report

The Chairperson revisited the last meeting agenda, where the Portfolio Committee (PC) had discussed the government’s Covid-19 response plan for Gauteng. She indicated that the government had availed several pockets of funding for municipalities and other organs of state to implement the preventive and other intervention measures to deal with the effects of the Covid-19 pandemic. A few weeks after the initial meeting with the provinces, the Auditor-General of South Africa (AGSA) had released a press statement, noting government’s Covid-19 relief packages. The AG stated that the relief packages had landed in a weakly controlled environment, exposing them to abuse by certain individuals. Consequently, the President had tasked several agencies, including the Special Investigating Unit (SIU) and the office of the AG to investigate allegations and indications of abuse of the Covid-19 relief funds. As a result, the AG had released a series of special reports on the management of the government Covid-19 initiatives. The SIU had also issued a special report dealing with over 50 Covid-19 related allegations of impropriety involving 189 state institutions and entities.

It was in light of these allegations that the Committee had met with the AG and the SIU to discuss all their preliminary findings. In terms of the role and mandate of the Portfolio Committee, it was expected that it would follow up with all the nine provinces regarding consequence management in respect to those individuals implicated in unlawful self-enrichment through the misuse and abuse of the Covid-19 relief funds. Today's meeting was therefore part of a series of meetings the PC intended to convene with all the nine provincial governments as a follow-up on the matters raised by the AG and the SIU.

Later in the meeting, there would be a briefing from the Gauteng Department of Cooperative Governance, Human Settlement, and Traditional Affairs on its progress in the implementation of the Traditional and Khoisan Leadership Act 2019. The beauty about Gauteng was that there might be one or two traditional authorities. The Act had been promulgated in April this year, and during the course of the PC oversight work during the year it had been observed that there was insufficient awareness of this Act and its implications for the standing rules and orders of Municipal Councils. The presentation also indicated that the Department's Member of the Executive Council (MEC) had currently no record of the Amendment of Standing Rules and Orders by Municipalities. Those who had traditional councils had to accommodate the provisions of the new Khoisan Leadership Act. This needed to be corrected by ensuring that provinces undertake the necessary measures to improve awareness of this Act and its implications, especially among those tasked with the public office responsible at the municipal level.

Gauteng Department of Urban Planning, Cooperative Governance, and Traditional Affairs

Auditor-General’s special report on Covid-19 expenditure

Ms Nelisiwe Ntlhola, COGTA Director, made the presentation on behalf of Mr Lebogang Maile, Gauteng MEC of the Department. The AGSA had undertaken an audit of the COVID-19 expenditure based on the COVID Relief Fund provided by government as a response to the outbreak of the novel coronavirus.

Various findings had been made at six Gauteng municipalities:

  • City of Joburg Metro
  • City of Tshwane Metro
  • City of Ekurhuleni Metro
  • Sedibeng District Local Municipality
  • Emfuleni Local Municipality
  • Randwest City Local Municipality.

These findings ranged from non-compliance with the procurement process, spending of COVID 19 funds for non-COVID19 related activities, and weaknesses in controls over the procured goods and services.  Recommendations had been communicated to the relevant municipalities on controls, and the Department would meet with the municipal leadership quarterly to assess if these recommendations were being implemented. 

Gauteng Provincial Treasury (GPT) support to departments and entities

Ms Nombulelo Mbeki, Gauteng Provincial Treasury, said support had been provided to the Gauteng Provincial Government (GPG) institutions in various ways during the Covid-19 pandemic. Support on supply chain anagement (SCM) related matters included advice, tips, help, guidance and assistance. There was also provision of guidance on procurement of Covid-19 related goods and services through the issue of circulars and SCM instruction notes, to minimise supply chain irregularities.

Challenges encountered included:

  • Lack of demand plans for COVID-19 procurement.
  • The imbalance between the stock ordered and goods received. More items were ordered yet the department was not receiving enough deliveries. It was noted that, at the beginning of the COVID-19 lockdown period, the Department of Health (GDoH) had appointed service providers based strictly on stock availability, without price determination.
  • Using suppliers not registered on the National Treasury’s central supplier database (CSD).
  • Using suppliers whose tax matters were not in order.
  • Usage of commitment letters by the Department of Health emanating from a non-compliant SCM process.
  • Non-reporting of emergency procurement and price deviations for transactions.
  • Non-usage of local content standard bidding document (SBD) forms for uniform and textiles commodities -- personal protective equipment (PPE).
  • Misallocation of COVID-19 transactions, using wrong budget allocations and wrong material numbers/ items when procuring COVID-19 goods and services.

GDoH on COVID-19 budget and expenditure -- July 2021

Dr Thembi Mokgethi, MEC, GDoH, referred to the over-spending, and said that the entity had already started implementing the AG’s findings on corrective action. The recommendations of the SIU on consequence management were also being implemented. The SIU was still in the process of investigating the PPE saga that had occurred in the previous financial year in the Department.

Key Issues

Ms Lerato Madyo, Chief Financial Officer (CFO), City of Johannesburg, reported that the Department's spending on COVID-19 had amounted to R1 billion as at the end of July 2021. This translated to 38.1% of the total allocation. The over-expenditure from the target norm was due to payment of accruals from the previous financial year. Funds would be reprioritised during the adjustment budget process, subject to budget availability. The Department had incurred an amount of R600 million on COVID-19 measures during 2020/21, which had been included in the accrual balance as at the year-end. Budget adjustments from goods and services to the compensation of employees (CoE) amounting to R127 million had been made through the Provincial Treasury. This was for the continuous recruitment of personnel, as the Department was in the process of increasing the number of vaccine roll-out sites. The Department was projecting to spend 100% of the budget by year-end.

The AG findings included:

  • PPE items not ordered at prices regarded by National Treasury as market-related. Seven of the nine provinces had ordered PPE items from suppliers at prices in excess of the maximum prices prescribed by the National Treasury.
  • Specifications not indicated on awards and submissions. When the entity assessed the awards, submissions and delivery notes in relation to goods delivered, it was noticed that no mention was made of the actual specifications that had to be complied with for the goods to be delivered, as required by instruction note 8 of 2019-20, paragraph 3.7.6.
  • Goods were received and paid for by the departments that were not the same as the ones specified in the original order documents.

Progress made

The finding on the PPE items had been reported in the annual financial statement (AFS) for the year 2020/21. The balance reported was subject to audit review. The Department had already started recovering on overpayments made.

The Department had commenced with a review of stock delivered at warehouses, and reconciliations on stock procured, delivered and paid for were conducted on a monthly basis. It was in the process of improving on its record keeping, which would then ensure submission of documents for audit purposes.

Discussion

The Chairperson raised concerns on the briefing from the Department, because the PC had been expecting a consolidated briefing from all the departments of the province. She could not find the reports of the Departments of Education, Social Development report or Economic Development in the whole Treasury report. She said the detailed report was the Department of Health one, which had just been presented by the CFO, which had also gives a spreadsheet on the consequence management in terms of the findings. She suggested that the colleagues refer to it, because the letter sent out was very specific on the briefing. It was supposed to be a consolidated briefing.

The Chairperson appreciated the presentation of COGTA, but could not find the human settlements part of it, neither was there anything on education, social development, economic development, agriculture or environmental affairs. The meeting had been scheduled until 1 pm to accommodate a consolidated briefing.

Ms Nomantu Nkomo-Ralehoko, Gauteng MEC for Finance and eGovernment, requested that the Head of Department, Ms Ncumisa Mnyani, speak on the recommendations from Treasury to help guide Members, when they ask questions, to include questions on this part of the AG's report. She said the letter had not been clear on the other reports, because the Provincial Treasury had a consolidated report. The MEC said she would ask the Deputy Director- General to look into the overall report while the HOD spoke on the recommendations, so it could be summarised after the HOD had spoken. She thought each Department had been supposed to account for itself at the PC.

The Chairperson said the contents of the letter had mentioned all the departments of the province, starting from the Office of the Premier up to the Department of Economic Development. She was under the impression that the Premier's Office would have compiled consolidated reports for the province. This would have given the PC a good picture of what was happening. The PC's interest was in the money that was meant to assist the vulnerable during the pandemic. She insisted that the PC be given written outstanding reports. She appreciated the report from COGTA, as it showed the work that was being done at the municipalities, but the issue of the Department itself needs to be understood.

Ms Myani said the report that had been presented by COGTA on the issues of the municipalities had touched on both COGTA and Gauteng Provincial Treasury (GPT) support. This was the part presented by Ms Nelisiwe Ntlhola. The other part that was done by Ms Mbeki was on interventions done at the departmental level and the entities. The presentations were a combination of what was being done by both COGTA and the Treasury. The municipal side was covered because the interest was to see if the entity’s interventions and initiatives were addressing issues raised in the AG's findings. Because the Treasury was not part of the audits in terms of the reports issued by the AG, the approach was to look at what role the entity was playing in supporting the audits that were audited by the AG.

The Chairperson commended the work of both COGTA and Treasury, as it showed that the two entities were working together to support the municipalities. She supported the last recommendation that had been flagged by the HOD and was noted by the PC.

Implementation of Traditional and Khoisan Leadership Act

The Chairperson asked Mr Lebogang Maile: Gauteng MEC for Human Settlements, Urban Planning and Cooperative Governance, to refresh the Members’ memory about the number of traditional leaders in the Gauteng Province.

MEC Maile informed the PC that there were two traditional leaders in the province, and the Department was working well with them.  The Department had met with two groups of the Traditional Council of the Khoisan. There was a team that worked nationally, and one that was in the province. The Department had agreed with both teams that it would provide the necessary support. The issues that required the National Government's involvement would be raised through the bilateral with the Minister of COGTA.

The Chairperson asked about the municipality under which the two traditional councils fell.

MEC Maile said one fell under Tekana Municipality, and the other was the Ndebele one (he was not sure of the name), but both fell under Tshwane.

The Chairperson asked if there had been efforts by the Tshwane Municipality to amend their standing orders. What role was the Department playing?

MEC Maile said he was not sure, as he had not had an update yet. However, his Department was working well with the municipalities on the whole range of issues. He said Mr Tekane would know the specifics better.

The Chairperson asked who Mr Tekane was.

Mr Maile said Mr Tekane was in charge of the traditional affairs in the Province. He would check on the issue and revert to the PC with the correct answer.

He reiterated that the Department worked well with all the municipalities, even where there was no traditional leadership, because there had been claims made about the traditional leadership even in places like Alexander Township and Thembisa. That was why there would be a commission to probe further. Where there was no traditional leadership, the Department had to work with municipalities to ensure that these issues were dealt with in a transparent way going forward.

Progress on implementation of Traditional and Khoi-San Leadership Act (TKLA)

SALGA input

Mr Lance Joel, Executive Manager, South African Local Government Association (SALGA), said there would be no presentation from his entity, but he made two points. The first point was linked to the point made by the MEC Maile earlier that part of the process was unfolding from the fourth of the local government, into the fifth term. Work was being done, led by SALGA, to ensure that it was preparing the municipalities before, during and after the elections. Part of that work was what SALGA had agreed to with the municipalities in May, that the guidelines developed would be workshopped with all Speakers, Mayors and Municipal Managers. They would all be relevant in the transition processes before, during, and after the elections.

Part of the transition process dealt with reviewing the standing rules and orders of the Council so that it did two things. Firstly, it would introduce updates that would have been brought about by, for instance, the Structures Amendment Act that had been introduced by the President. The entity hoped that likewise, the Systems Amendment Bill that was currently being processed by Parliament would have an impact on the rules. In addition, there had also been other legislative changes, including the discussion that was unfolding around the implications of the Traditional Leadership and Khoisan Act, particularly in municipalities that had previously not been affected by traditional leaders recognised in the municipal areas. There was a chapter in the Revised Rules and Orders that would ensure that the participation of traditional leaders would be properly regulated. This was the first thing that had worked and progressed.

The second area to be reported to the PC was that what had been done in the past and what SALGA intended to do once more after the local government elections, was to conduct an extensive Council induction programme. This Council induction programme would be for all newly elected Councillors, and would also be extended to traditional leaders. In 2016, an induction programme was implemented for traditional leaders who would be participating in municipal processes, and because of their role within the Council, they should also benefit from that induction. As such, the induction to be conducted after the elections would cater for all traditional leaders that would have been recognised and formed part of that the Municipal Councils -- not only in Gauteng, but across municipalities throughout the country.

Mr Joel said that SALGA would like to engage with GOGTA in Gauteng to form a partnership to jointly engage municipalities, based on the Standing Rules and Orders. The municipalities could then, in anticipation of the elections, look at reviewing those so that they could be updated in line with the legislative provisions that find expression as they relate to traditional leadership and the implementation of the Act.

Gauteng Department of Traditional Affairs

 Ms Reshoketswe Mogaladi, Deputy Director-General: Traditional Affairs, GPG, said that in terms of the TKLA five year plan, the following were the priorities for the 2021/22 financial year:

  • Establishment of the Commission on Khoi-San matters.
  • Projects towards the legal constitution of traditional councils.
  • Workshops for provincial officials on the TKLA.
  • Capacity building for traditional leaders on the TKLA.  
  • National Regulations on the TKLA provisions on the recognition and withdrawal of leaders and communities and disputes and claims (to address the current challenges of traditional and Khoi-San leadership disputes).

Progress had been made in the following areas:

  • Some progress had been made towards the establishment of the Commission on Khoisan matters, including the finalisation of all the administrative processes. The Department had indicated that the Commission would commence from 1 September, and once it commenced it would develop a plan to undertake its roles and functions as prescribed in the Act.
  • The Formula for determining the number of members of traditional councils had been developed, and the Minister had consulted with the Premiers and Houses of Traditional and Khoi-San Leaders. Inputs on the formula were to have been submitted to the Minister by the Premiers and the Provincial Houses on 6 August. The Department was currently revising the formula based on the inputs received from the Premiers and Provincial Houses of Traditional and Khoi-San Leaders, and a programme for the application of the formula (computing the numbers in the formula) had also been developed.
  • The formula to determine the number of members of kingship, queenship and principal traditional councils had also been developed. The Minister had consulted with the Premiers and MECs for COGTA for inputs before consultation with the kings, queens, principal traditional leaders and their two forums. Relevant provinces had been requested to assist their kings, queens, and principal traditional leaders to establish their forums. The Department was currently facilitating the establishment of the two forums under each kingship, queenship and principal traditional leader for purposes of the Minister's consultation on the formula.

Gauteng COGTA presentation

Ms Jackie Obando, Acting Chief Director: Intergovernmental Relations and Traditional Institutional Management, gave a presentation addressing the questions directed to the province. It looked at the implementation of the TKLA, specifically what had been done from April to August, and the training and awareness programmes that had been done on the implementation of the Act. There was also municipal awareness of the amendment to S81 of the Structures Act, Act 117 of 1998, and the Amendment of the Standing Rules and Orders to accommodate the amendment to S81 of the Structures Act.

Notable achievements include:

  • A Local House of Traditional Leaders (LHTL) must have at least five recognised traditional leaders, and in the City of Tshwane, there would be two senior traditional leaders and four headmen/women.  The project would run concurrently with the reconstitution of the National House of Traditional Leaders (NHTL), and would conclude in March 2022 to align with the term of office of the NHTL.  Headmen/women in Hammanskraal had been appointed on a five-year term which would conclude on 31 March 2022.  The process of re-appointing the 4 headmen and headwomen had commenced in Hammanskraal.
  • A concept note for the audit of headmen/womenship positions in Sokhulumi had been prepared and aligned to the legislative requirements.
  • The two traditional councils had been tasked to prepare a list of the current partnerships and agreements they had in place.
  • A concept note to host road shows in the five regions of Gauteng on the TKLA had been developed. 
  • The anticipated date of implementation was August, but the Commission had not yet been established by the Minister of COGTA.
  • The scope of the road shows would include the responsibilities of the Commission on Khoisan Matters, legislative requirements for recognition, and the application process for Khoi and San leaders.

Discussion

Ms S Buthelezi (IFP) asked the Department of Traditional Affairs about slide eight of their presentation, which indicated that all the administrative processes on the establishment of the Commission on Khoisan Matters had been established, and asked to be provided with these administrative processes in detail. On slide 11, which concerns the development of the national schedule for the legal constitution of the Traditional Council and Provinces, it was stated that they had been requested to submit their project plans in this regard -- which provinces had submitted thus far? Lastly, on slide13, which concerns the capacity building of the traditional leaders on the Act, it was stipulated that the effective implementation of the Act required that support be provided to the traditional leaders to be able to perform their legislative functions -- what specific support was being provided in this regard? With regard to slide five of the Gauteng Provincial Government presentation, what was the reason for the delay in the establishment of the Commission, which should have been done in August? In slide 11, which relates to meetings with the Khoisan leaders on the Act, what specific concerns had been raised by these traditional leaders? She said there were no details on these issues in the presentation.

Ms D Direko (ANC) said in the COGTA presentation, the issues that had been raised -- including non-compliance with laws and regulations, consequence management as recommendations, and problems with the financial statements -- were not new issues that had been raised with regard to the municipalities. What were the measures in place to prevent these situations from happening? What was the turn-around strategy to deal with these challenges? These were issues that kept happening in the municipalities, and it was not just because of the Covid-19 pandemic. The Provincial Department of Health had awarded a contract to the value of R125million to a service provider with no previous experience in delivering personal protective equipment (PPE) and had not run a background check to determine whether the service provider had the capacity to fulfil the obligations of the contract. What was the remedial action in this matter? Also, when the issue of Covid-19 came into the picture when the disaster was declared, had the Department prepared a system to accommodate the processes that would have been expected to be needed during this period?  Were there measures in place to deal with mismanagement or any elements of corruption regarding the processes that were supposed to be implemented during the pandemic?

The Chairperson said the DDG of Traditional Affairs had indicated there were process plans issues to which the Premier had not yet responded. She believed that the responsibilities of the Premier had also been given to the entity, to make sure that the Premier complied with what the Department required. What predicament could result from non-compliance? Would it not have an impact on the implementation of the Act if the Premier was not responding? The Premier's response would be based on the advice and support provided by the entity that his function had been assigned and delegated to, so could the Committee we get an indication as to what could be the issues that would make the Premier not respond?

The other issue was on the entire presentation. Although she was excited that there had been progress in terms of consequence management, there were issues she felt that MEC Nkomo-Ralehoko should account for. After reading the reports of the AG and the SIU, there were issues she needed the MEC to give clarity on.

There had been four emergency procurement items to the value of R6.9 million which were not reported to the Provincial Treasury in 30 days, in contradiction with Treasury instructions. Had the Department had now identified the cause of this, and the way that it intends to resolve it, if it was not yet resolved.

In the AG's report, the Provincial Health Department ordered 444 units of 5 litre sanitisers between March and April from one supplier at a price unit of R650, whereas the maximum calculated price was R552 per unit. This had resulted in a loss that was estimated at R43 512 for the Department. Had any attempt been made to recover these funds from the employees that were under investigation?

The Department had also awarded contracts of R862 million without providing sufficient appropriate evidence to the effect that the tax matters of these suppliers had been declared in order by the South African Revenue Service (SARS). This was in contravention of the Treasury Regulation 16a191d. What had the Department done about this to meet consequence management requirements?

The first audit report of the AG had found that the Provincial Department of Health had received and paid for goods and services that were not the same as the ones specified in the original order document. The Department had ordered three million face masks, 385 000 N95 masks, 100 000 FFP2 face masks, and 257 000 jumpsuits.  The supplier had instead delivered 300 000 disposable aprons to the value of R250 000, and the Department had accepted and paid for this. How did the Department justify this? What remedial and consequence management action had been taken?

The difficult issue was the one of the Department of Education in terms of the interaction with the SIU. It was a pity that the MEC for Education was not in the PC meeting to respond to her questions.

Response

Ms Mnyani agreed that the audit findings, especially those relating to the municipalities that had been highlighted, were not new findings as the Member correctly stated, and were not due to Covid-19. They were recurring issues, and some of them were findings on other kinds of expenditure. The entity was looking at transgressions as far as legislation was concerned. What the entity was recommending and doing was looking at empowering the MPAC to deal with the reports that were actually directed at the municipalities. The MPAC could then follow up if the municipalities did not implement consequence management. The entity was also conducting training and courses empowering the MPAC to implement its duties.

It was looking at the disciplinary committees that have been put in place in some municipalities. These had been assisted to set up proper disciplinary committee structures so that consequence management could be implemented in the municipalities. In certain instances, if it was possible to recover some of the wasteful expenditure that have been incurred, the entity deals with them through the MPAC and the disciplinary committees that needed to be put in place. The entity was strengthening its consequence management as well. It also needed to demonstrate that the proper processes, especially where the accounting officers had done their investigation, had identified the wrongdoers. The proper processes for disciplining those officials had been put in place. For example, when the Department needed to deal with irregular expenditure, it had to provide evidence to the Treasury that these processes had been implemented in the Department to investigate the causes, identify the wrongdoers, and that action had been taken by the accounting officials. It was looked at from both sides, particularly in dealing with irregular expenditure that resulted from not having followed the proper legislation and regulations that were in place.

The Chairperson wanted to know which municipalities did not have MPACs, and which ones had not implemented consequence management, to help with follow-ups.

Ms Itumeleng Mokate, DDG: Department of Provincial and Local Government, referred to the measures that were put in place to ensure that municipalities did not continue with non-compliance. The Department was implementing a programme that would focus specifically on supporting municipalities and monitoring their unauthorised, irregular, fruitless and wasteful expenditure. In the financial year, the entity was rolling it out in Rand West and the City of Tshwane, and in this regard, the entity would ensure that the MPACs were strong and stable and followed through, particularly on consequence management. It would also ensure that processes were in place to prevent such incidents from happening going forward. That was the work that the entity did with the national and provincial Treasury -- following up and providing technical assistance on their audit plans. It looks at the key issues that were coming out of the audits and whether they had put together sufficient plans to address those issues.

Municipalities had responded to some of the findings, but there were areas where it had been indicated that these matters needed to be referred to MPACs. The Department would continue to follow up and make sure the MPACs and the disciplinary boards were supported so they could fulfil their obligations. At the end of the day, it would still be the responsibility of the Council to ensure that whatever came out of those investigations, the resulting recommendations were followed through and implemented. She used the Department of Health as an example of consequence management. It was an area that the entity was really focusing on and paying particular attention to going forward, to ensure the prevention of repeated occurrences. However, whatever happened, the relevant consequence management would take care of it.

Mr Owen Witbooi, Chief Director, Gauteng Department of Finance, commented on two very important points regarding MPACs and disciplinary boards. On the audit findings and issues around unauthorised, irregular, fruitless and wasteful expenditure, those two particular structures were very important in dealing with the consequence management part of what the Chairperson had referred to. The MPACs had long been in existence, and they were functional on their municipalities.

Ms Obando responded to the question relating to the meetings that the Department had had with the Khoisan leaders, where some of the specific matters that were raised concerned the constitutionality of the Traditional Leaders Act (TLA). They had been specifically concerned about rectifying the injustices of the past regarding the recognition of the Khoisan communities. They were concerned about being excluded from nation building and the social cohesion programmes of the government. They were also concerned about the use of the term "coloured" within the administration of the departments.

On the Act specifically, they were concerned that it had taken so long for the Commission on Khoisan matters to be established, and their recognition. They were concerned about who sits on the Commission on Khoisan matters and whether there was any representation from the Khoisan communities on it. Another concern was that the TKLA was not filtered down to the municipalities enough. Some of them rejected the TKLA completely, and called for an amendment of the Act.

They were also concerned about the establishment of the National Khoisan Council, which had often been referred to as the representative body of the Khoisan communities. They argued that it did not fully represent all the Khoisan communities, and very often they did not express the concerns of all the Khoisan communities. It had provided no feedback when the bill was being consulted. They had explained some of the processes -- that from a provincial perspective it was not in a position to comment on the establishment of the Commission on Khoisan matters, as well as the NKC and what it was representing. The National Department of Traditional Affairs was responsible for the establishment of the Commission on Khoisan matters. On the anticipated date of the establishment of the Commission, the communication the entity had received from the national Department was that it would be established in August, but unfortunately that had not yet happened.  She said it was something that the Department of Traditional Affairs could answer more appropriately.

On non-compliance with the request for the implementation plan and comments on the formula, the entity had requested an engagement with the National Department of Traditional Affairs on what the formula was going to mean to the Gauteng Province, but there had not been an engagement yet.  The entity had anticipated that it was going to happen in the first week of August, but unfortunately, it could not take place. They had wanted an engagement because they wanted to know exactly what the formula would mean for some of the traditional communities. For instance, was it going to be establishing a traditional council? If the formula meant that only five people would be a part of that traditional council, the entity wanted to know that, so that it could manage expectations with the traditional council.

The entity also wanted to be able to manage its project plan as to how it would elect some of these traditional members. Thus, if it required only the election of two traditional council members to be part of the council, then it may not want to go the extensive route of having an external body appointed to run the elections. That was the major concern the entity had, but it would be having an engagement with the Department of Traditional Affairs in the next week or so.

The entity had responded to a request from the National Department to prepare the implementation plan.  At the first submission, it had not followed the format or template. It had prepared its template on how it saw the planning going ahead, but it had subsequently conformed to the implementation plan and communicated that to the National Department. However, it had been quite late after the closing date.

Ms Mogaladi responded to the question of providing the details on all the administrative processes towards the establishment of the Commission on Khoisan matters, saying when it came to the Act, the Minister should call for nominations from the members of the public. They should nominate someone to be the Commissioner of the Commission, and after that there would be a process of selection from the received nominations. Before the commencement of the Act, immediately after the Act was enacted in November, the Department had used the interpretation Act for the Minister to call for nominations from members of the public. Once the nominations were done and submitted, in terms of the Act, the Minister must appoint the selection panel, which should scrutinise, assess all the nominations, and draw up the whole selection process. After the recruitment process was done, the panel had to submit all the recommended candidates to the Minister for appointment. According to the Act, before making an appointment, the Minister must consult with the Minister of Finance on the conditions of service of the Commissioner. After the consultations, the Minister would appoint and check with the recommended candidates that had been appointed if they would accept the offer. Some would accept and some decline. In the latter case, the recruiting panel would selects those who were next in line of the recommended list of candidates. The gazetting was done only after candidates accepted the offer. The Department was now in the gazetting process, so the Commission would start on 1 September.

There had been some unforeseen delays when the entity was doing its plan, particularly with the processes after the selection panel had finalised and made recommendations to the Minister. She said these were unexpected delays, but she had to explain why there were delays in the appointment of the Commission on the Khoisan matters as requested by the Members.

On the question as to which provinces had submitted their project plans, she said Mpumalanga and Northern Cape had submitted their plans, and Gauteng was indicating now that it had submitted its plan. She would however double check with her colleagues on the Gauteng one, as it was not reflecting on her system; otherwise, it was those three provinces. The entity believed that the rest of the provinces would submit, because the project plan was expensive and it required many things, including the costing.

On the specific support that had been provided to traditional leaders for the implementation of the TKLA, the kind of support would be the training that the Department had alluded to, but the provinces provide a lot of support to their traditional leaders. For instance, they obviously provide technical support when they have their meetings as Councils,.

The Chairperson asked about Gauteng, where there were no Provincial Houses, and the traditional leaders belong to the National House. How was that support provided?

Ms Mogaladi said the support was provided to the National House members, and also to the two senior traditional leaders in Gauteng. Gauteng as a province also provided support, because these were their traditional leaders. The National House was comprised of members of all the Provincial Houses, so support was also provided to them to perform their rules and functions from the provinces from where they came. That support included capacity building and financial support when they performed certain functions. There would also be some of the tools of the trade that would be provided for them when they had to perform certain functions. However, because the National House was housed or was located within the DTA, and the DTA as the responsible department, it provided the laptops, for instance, which she supposed the other provinces were also providing to their traditional leaders in those houses. The entity also provided cell phones and cell phone allowances so that they could perform their work. When they had to travel and do work that was related to the National House, it paid for the accommodation and travelling, and provided transport. When they had the meetings of the House, catering was provided. Now, because of Covid-19, meetings were done virtually so the entity provides data, which was provided even before the pandemic. The entity still ensured that they have the tools of the trade to attend the virtual meetings, and also provides training. She said that was the kind of support the entity and the other provinces provide.   

The Chairperson asked about the issues that had been raised by Ms Obando, based on their meeting with the Khoisan community, where they had asked about leadership in their community. As the custodians of the Act, the Department needed to address this question. Who determined the Khoisan leadership? Did they have them on their database? How did they determine who was the legitimate leader, because there seemed to be a problem? How were they dealing with this problem? If it was not attended to, it may be problematic because even after the signing of the Act by the President, there had been a group that had stayed at the Union Buildings saying this Act must not come into law. Although they had been overtaken by a series of events because of the law making processes, this issue kept resurfacing. As the custodian of this policy and the actual Acts, there was a need to respond to this issue. How did the Department intend to resolve this to ensure a smooth implementation of this Act?

Ms Buthelezi asked about the concerns that had been raised by the transitional leaders of the Khoisan communities, where Ms Obando in her presentation had said it was not the province's responsibility, and that issue resided with the national Department. She wanted to get clarity on who was going to resolve that matter. Were those concerns being addressed, or were they going to be addressed by the relevant department which, according to Ms Obando, was the national department? She said it could not just be “it's not our responsibility, it resides with national and that is where it ends.” What would happen to those issues that were not their responsibility, but resided with the national Department? Ms Obando also said some of the leaders rejected the Act outright, so what was the way forward regarding that?

Mr K Ceza (EFF) said he was concerned because the province had responded as if they were responding in the future about preventive methods that he had raised on what the AG had found. The issues of maladministration and financial mismanagement had existed before the pandemic. What was the difference that would be seen in the preventive methods that were actually in place to ensure that there was no recurrence of the mismanagement, maladministration, and all the findings and observations of the Auditor General? What was the difference that would create an impact, because it was the same question that had been asked on section 139 of the Constitution regarding the provincial support that was given? The entity had mentioned section 139, section 152, and section 100, so he asked if they would be a difference. He did not want a situation where he was responded to as if his question was futuristic. It was not futuristic -- it was based on what the Auditor General had found, so he needed the answers now because he was not in the future. What needed to happen to prevent the fraud and errors that the AG had picked up in his Covid-19 findings, and so forth? His my argument was that one must not allow a situation where a response would be given in the future. They were not in the future, they were in the now.

Ms Mogaladi said the Khoisan were not like traditional leaders, so there were no legally recognised Khoisan communities. There were therefore no legally recognised Khoisan leaders. Chapter 12 of the Constitution recognised traditional leaders, so why was there the Khoisan Leadership Act? One of the objectives of the TKLA was to provide statutory or legal recognition of the Khoisan leaders and communities, because they had been left out when traditional leaders were legally recognised. The Act provided enabling legislation so that the entity could address that challenge, hence in the presentation she had said the priority was to give legal recognition to the Khoisan communities and their leadership, the same way it had been done with the traditional leaders.

With the traditional leaders, there was a commission called the Commission on Traditional Leadership, Disputes and Claims, which assessed the applications for traditional leadership. During that process, in the case of kingships and queenships, these were recognised by the President upon the recommendation of the Commission on Traditional Leadership, Disputes and Claims. This Commission had been established through the previous law that had been repealed by the TKLA. So, with the TKLA, the Commission which established the Khoisan matters was going to do the same thing that had been done by the Commission on Traditional Leadership, Disputes and Claims.

The statutory roles provided for in the Act for the Commission on Khoisan Matters, was that firstly, it would come up with an application form so that people who regarded themselves as Khoisan would apply to the Commission on Khoisan Matters as leaders of the Khoisan. The Commission would make an awareness of that Act and the application process, including the qualifying criteria stipulated in the Act, the deadlines and the positions to be applied for. They should also indicate that they were applying for the recognition of the Khoisan community.  The Commission would then assess all the applications, do their research, and hold public hearings. On application one, it would indicate that it qualified in terms of the research and the qualifying criteria, and then recommend to the Minister to recognise such a community or individual as either a senior Khoisan leader or a branch head. There was currently no legally recognised Khoisan leader of the community, because that process had not been finalised.

She hoped that the people who qualified, based on the qualifying criteria in the Act, should apply to the Commission and not reject the Act, because it had gone through all the processes of Parliament. It also went through consultations before it even went to Parliament. They could call themselves the Chief or whatever they chose, because that Act says the community may call each other by their customary titles. However, the process of the Khoisan Commission should commence and then recommend to the Minister the recognition of those who were legally qualified as senior leaders, branch heads or a Khoisan community.

The Chairperson asked what the timeline was for the process, because she observed an issue in this traditional leadership situation, as they could call each other kings and queens, but until they applied to the Commission there was no king or queen -- there was no traditional leadership for the Khoisan. Was that what you were saying? She said with the Traditional leadership it was normally about the disputes and even with the Nhlapo Commission those that were said to be King and queens then, was just a matter of confirmation but there was not process involved like in this one. She said in this one the entity was saying one needs to first apply to be recognised as a king, queen, senior leader, and branch leader or even a community. Was that what Ms Mogaladi was saying?

Ms Mogaladi said the Act provided for two positions for the Khoisan -- the senior Khoisan leader and branch leaders. However, before one could be a leader, one must be a leader of a legally recognised community because one could not be a leader without a community. There would be applications for legal recognition for the Khoisan communities and for Khoisan branches. The branches would fall under the main Khoisan community. In the Act, when one applies for the legal recognition of a community, one also applies for the recognition of a leader of that community. The processes would run in parallel.

Although in the Act there were only the two positions, it did not say that they could not call each other by their customary titles, but what was critical was the process of the Commission. The Commission on Traditional Leadership, Disputes and Claims, and the Nhlapo Commission -- which was a judiciary Commission -- had to look at the paramount leader at the time and see which one qualifies as a kingship and which one did not.  With the amendment of the Traditional Leadership and Governance Framework Act of 2003, the Commission on Traditional Leadership, Disputes and Claims was no longer a judicial commission, so it was taking all the applications, not only for kingships and queenships like the Nhlapo Commission had. The Commission was now recommending to the President for determination. The cases below kingship and queenship were referred to the Premier for recognition of that traditional leader or headman who had applied and qualified. That was why it was called the successor in law to the Nhlapo Commission.

The Chairperson said Houses of traditional leaders would in future be known as houses of traditional and Khoi-San with the inception of the Act. Were there people from the Khoisan community who were representing them in that structure? Given Ms Mogaladi's explanation, she would say everyone should just apply, or they have just changed the name, but the leadership was only traditional leadership and there was no representative for a Khoisan leader? If there was a Commission that had been established, what were its terms of reference and its timeline? The Chairperson said it was in the best interest of the Members that the legislation of Parliament should finally be implemented. Was there any change in the structure, or had they only changed the name from the National House of Traditional Leadership to the National House of Traditional and Khoisan Leadership?

Ms Mogaladi said the name had indeed changed as of 1 April with the coming into effect of the Act. All houses were referred to that at the local level. However, until the Commission completed its work, it did not have Khoisan leaders. The name had changed, but not the structure. As the Commission was doing its work and recognising the leaders, there were transitional provisions that stated that as they were recognised, they could be in the houses with observer status until the process was complete.

She said the Commission would not have the terms of reference, because these were the statutory roles listed in the Act. Section 50 of the Act outlined the functions of the Commission. They must have a plan, but it was unknown when they would finish their work because there was no indication of the number of applications that would be received. The Commission could indicate the timeframe and deadline for applications only when it resumed its work.

The Chairperson said the Commission, in terms of statutes, must have terms of reference and a timeframe. The Minister could not just appoint the Commission without a timeframe. Her concern was that the implementation of the Act may not happen in their lifetime. When commissions failed to finish their work within the prescribed timeframe, they applied for more time depending on the number of applications that were coming in. This was why she was interested in the terms of reference and timeframe for this Commission, and she still insisted that the entity share it. A Commissioner could not just be appointed without explaining what was expected of him. The way Ms Mogaladi was putting the situation across defeated the purpose and the intention of the Act. Based on her explanation, the implementation of this Act may not happen in their lifetime. The entity had now created a structure that sought to represent the people. If it was not regulated, people may come in numbers, all claiming to be community leaders.

She said that when the PC engaged the next province, the entity should be ready to tell Members all these things, because they could not dwell to long on the matter. It was in the Members’ interest to make sure that the legislation was implemented when enacted. The intention here was to include the Khoi community. She therefore had difficulty in comprehending that the Commission did not have a timeframe.

Ms Mogaladi said the Commission had been appointed for five years, so their term was for five years, and the terms of reference would be drafted and shared with the PC.

The Chairperson commented that if the Commission had been appointed for five years, then it would determine who would be the Khoisan leader only after five years.  That was why she was interested in ensuring that the processes the Commission were not like the House of Traditional Leaders, which had the time. The Commission needs to investigate and also recommend that the Act gets implemented. If the entity says the timeframe is five years, then the report would be produced after five years She had got a problem with that, because that meant that the Act would come into operation only after five years.

Mr Abram Sithole, Chairperson: National House of Traditional Leaders, explained the functions of the Commission as per the Act, and the timeframes. He said the functions of the Act were listed in Section 57 of the Act, and Section 58 indicated that within two weeks after the Commission had taken a decision, they must submit this decision to the Premier of the Province to look into. All of this was specific in the Sections of the Act, so the Commission would be informed by what the Act necessarily stated. They would go through section by Section of the Act that establishes and gives the functions of the Commission. It states that after the two weeks, within 60 days, the Commission must submit its recommendations to the Minister, so there was a lot of that process that must still take place.

The Chairperson said what Mr Sithole had said was much better, but needed to be broken down so that it would form the terms of reference, because there definitely were terms of references.

Dr Sibongile Zungu, Acting Head: Gauteng Health Department, referred to one area that talked to preventive measures that the Department was looking at. She said the Department had looked at the centralisation of the procurement processes, especially for Covid-19 related activities, and all the PPE procurement was now done centrally in the Department to ensure that there was sufficient agility to identify and follow the procedures that were there. If there were any areas which required assistance, the entity referred it to the provincial treasury.

Ms Madyo said there were issues that the Department would need to refer to in writing. On fruitless and wasteful expenditure as a result of overpricing, in the annual financial statements the entity had prepared for the year 2020, it had reported plus/minus R250 million on overpricing, and the entity had started recovering the amounts of money that had already been paid. There were cases where expenditure had accrued into the new financial year. The entity had now offset some of the invoices it was owing to the service providers in terms of payments, and had identified about R50 million of the R250 million that had been paid. This had required the Department to make follow-ups with the service providers, as there was no other business it was currently conducting with the Department itself. The Department had issued claim letters of demand for the R50 million balances that had already been paid, and was hoping to hear responses from the service providers. Some of them were not keen to talk about these issues but the entity was monitoring this closely to see if they were responding.

On irregular expenditure for the month of September 2020, there had not been any procurement that had not been from the transversal account in terms of the National Treasury tender. So far, what had been done was to review the material deposited and delivered at the warehousing so that before delivery at institutions for consumption purposes, the entity was certain that the material that had been delivered was of quality, and what had been procured for. Of course, some challenges had been encountered regarding deliveries, because some of the companies that were in the RT contract were based in KwaZulu-Natal (KZN), and due to the unrest that happened in the previous weeks, there had been challenges with deliveries. In this case, it became a bit of an issue to receive the goods ordered on time.

However, as the HOD had mentioned, the Department was in the process of resolving the challenges that were faced last year. Everything that had been procured at this current moment was from the RT contract in terms of the transversal account that the entity was making use of. Over and above that, it was also checking the quality to make sure that there was no irregularity in the procurement of resources.

Ms Madyo said the Department would be able to respond to other issues when it had received correspondence from the other offices.

Mr Witbooi said all the municipalities in Gauteng had municipal public accounts committees (MPACs) and disciplinary committees. One thing that had to be appreciated was that the disciplinary board was a later feature in the municipalities for dealing with financial misconduct. Although there were disciplinary boards in the municipalities, the main operative issue was their functionality The Provincial Treasury and working closely on building capacity within the disciplinary boards and providing training and technical assistance.  Over the last couple of months, the entity had focused extensively on unauthorised, irregular fruitless and wasteful (UIFW) expenditure and consequence management, particularly on the findings related to Covid-19, which falls within this particular umbrella. Over the last couple of weeks, the Department, with the National Treasury and Provincial COGTA, had focused at the technical level in engaging with the chief financial officers around the UIFW strategies. This was to establish what they were doing about reducing UIFW, obviously with Covid-19 now being a major feature. That would also form part of the focus areas in the municipalities. The Health MEC had met with the MEC of Finance and also with the National Finance Department and engaged extensively on the procurement, spending and audit findings within the municipalities. In collaboration with the colleagues in COGTA, it would look at the Covid-19 findings.

Mr Witbooi said the entity appreciates that the Covid-19 findings report had been released, and it would have to allow municipalities within this quarter to put the required action plans in place to address some of the findings. To ensure that the entity was proactive in this area, this was where the institution of the internal audit function in the municipalities became very important in terms of early detection. Within this workshop that had been planned, the entity was still going to identify and work on all those issues. It was hopeful that it could make some level of impact and that these findings and the matters related to this were also being mentioned. He suggested that the focus should be on internal controls, capacity building and training. The entity was aware that there was staff turnover in municipalities and that capacity could sometimes be a challenge, but it would certainly focus on that going forward in terms of the processes.

MEC Nkomo-Ralehoko said communication needed to be sent to all the departments on consequence management in connection with all the recommendations that came up. The HOD of her Department was away having one-on-ones just to look at all the audit outcomes and the issues, including the ones raised in the PC, which would be added. The complete report would be forwarded to the PC later. She said a message would also be sent to the office of the Premier and all the MECs to indicate that they should have been present in the meeting. She requested that another meeting be scheduled to allow for the outstanding presentations, because the message may not have been clear to them that they were supposed to be part of the meeting. She suggested that at the next meeting the Members should speak about the recommendations, the implementation of those recommendations, and what had been done as a province.  

The Gauteng Provincial Government would also be rolling out a dashboard that would assist in monitoring the irregular expenditure, especially around the issue of financial recovery plans. The dashboard had been rolled out for the province, including the municipalities for which it does oversight. There would also be a meeting again to tighten up its controls on the municipalities in the area of irregular expenditure.

MEC Nkomo-Ralehoko said that the entity had received a letter on Friday from the new Minister of Finance, Mr Enoch Godongwana, requesting the entity’s financial recovery plan, especially on the controls and consequence management. Consequence management had to be a priority for entity leaders.

In closing, she apologised to the Chairperson for failing the give the PC all the presentations requested, and promised to talk to her colleagues and provide them.

The Chairperson expressed her disappointment at the absence of the other departments, particularly the Economic Development team, considering that in the previous meeting everyone had made it. She was not sure what had happened, considering this was a follow-up meeting. Luckily, the majority of the Members were travelling, which was why they were not in the meeting and not asking questions. There were travelling to Cape Town for the election of the Speaker of Parliament the following day. She appreciated MEC Nkomo-Ralehoko’s commitment to return to the Committee and also consolidate the responses, and to encourage other colleagues to send in their other presentations. Maybe then a meeting could be rescheduled.

The Chairperson also thanked both MEC Nkomo-Ralehoko, who was also the leader of the delegation, and Dr Mokgethi, the MEC for Health, for being in the meeting since the morning. They were sincerely appreciated for their understanding of their accountability roles. They were the first province with which the PC had interacted to check the remedial action they were taking. Their presence had set a benchmark for the Committee to be able to determine what to improve on when the other provinces arrived.

She said that the letters had been very clear, unless people opted to read them another way. It could be the reason why the MEC for Health and her team had prepared a separate report -- because they understood the letter. She promised to find a slot before the recess to enable the absent colleagues to come and account to the Committee. Her concern was on the need for taking action and responsibility, and being accountable to the people, because the SIU reports had been made available. Cases had been handed over to Departments for disciplinary action, and the PC would like to hear about them. The SIU had raised concerns about issuing reports that were not considered and implemented by the responsible departments.

The Chairperson said the absent colleagues should update the Committee on the consequence management. She told the Department of Health team that in future, when a matter was already in the public domain, implicated employees should not be referred to as employee A, employee B, and employee C, but their names should be used. The Department was protected by legislation and the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act. These names could be made public as long the merits of the case were not discussed, because the abused funds had been meant to serve the vulnerable poor.

The meeting was adjourned.

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