SAHRC, PPSA & OCJ 2020/21 Annual Report

Meeting report

The Chairperson and Ms N Maseko-Jele (ANC) discussed how busy the previous day had been for the Committee. The Chairperson said that when he had first joined the Committee, as Adv S Swart (ACDP) would also remember, it used to work until 3 or 4 a.m. The Committee should avoid returning to that arrangement.

Ms Maseko-Jele said that what was important was that the Committee made progress, and did not have work outstanding at the end of the year.

Adv G Breytenbach (ANC) said that the Chairperson had mentioned in the previous day’s meeting that Parliament might rise of 14 December, rather than on 10 December as scheduled. Was that correct?

The Chairperson replied that he was awaiting confirmation from the Programming Committee.

Adv Swart, who sat on the NA House Programming Committee, said that the provisional timetable said Parliament would close on 10 December, but that still had to go to the Joint Committee.

The Chairperson said that it was good that the Committee had Adv Swart “in high places” to influence the parliamentary programme.

Adv Breytenbach said that, according to her personal programme, she would be leaving Parliament for recess on 10 December. 

Adv Swart joked that he would take the Committee’s “mandate” to the programming Committee.

Office of the Chief Justice: 2020/21 Annual Report
The Chairperson joked that Ms Memme Sejosengwe, Secretary General, Office of the Chief Justice (OCJ), was under witness protection, because her camera was switched off and she was not appearing on the virtual platform under her full name.

2020/21Annual Performance

Mr Itumuleng Malao, Chief Director: Strategy and Systems, OCJ, reported that, in 2020/21, OCJ had met 22 of its 25 annual performance targets (88%). This was an improvement on 2019/20, when it had met 70% of its targets. He discussed several of OCJ’s key achievements in the year under review.

All targets were met in Programme 2, Superior Court Services (OCJ’s core business), and Programme 3, Judicial Education and Support. However, Programme 1, Administration, had achieved only 11 of its 14 targets (79%). The targets that were not achieved were the following, under the Corporate Services sub-programme of Programme 1:
• 50% representation by women in the senior management service (44% achieved);
• 2% representation by people with disabilities in the staff (1.03% achieved); and
• Court Online system implemented at two services centres (not completed).

The employment equity targets were not met because initiatives put in place had not yielded the expected results. Moreover, some female managers had left OCJ for better employment opportunities elsewhere. In future, OCJ would targeted women for vacant senior positions and partner with organisations for people with disabilities, and it had initiated a disability disclosure process for current employees.

The Chairperson suggested that OCJ should speak to the Office of the Public Protector (PPSA), which had been able to achieve 2.6% representation by people with disabilities on its staff.

Mr Malao said that the target for the Court Online system had not been met due to the cybersecurity breach and delays caused by COVID-19. The project targets had been revised, and the roll-out had been deferred to the current financial year.

2020/21 audit outcomes

He said that, for another consecutive year, OCJ had received a clean audit in 2020/21. As key issues to address, the Auditor-General had identified:
• Key managerial vacancies, such as in the Chief Information Officer post;
• Internal control deficiencies in ICT system controls (requiring urgent intervention); and
• Internal control deficiencies in processing and reconciling controls, regular reporting, and compliance monitoring (all rated “of concern”). 

The Auditor-General had also rated OCJ’s senior management as providing only “some assurance.” In all other areas of governance and controls, however, the Auditor-General had rated OCJ “good.”

2020/21 financial performance

Mr Casper Coetzer, Chief Financial Officer (CFO), OCJ, said that, because of the COVID-19 pandemic, 2020/21 had certainly been one of the most difficult years – in terms of financial management and internal control measures – ever experienced at OCJ, and perhaps ever experienced by government overall. The 2020/21 financial year had begun during the hard lockdown, so, for the first quarter of the year, OCJ officials had not been able to come into the office even while the courts had continued to function virtually. Maintaining financial controls under these conditions had required some “creative thinking” by management.

OCJ’s final budget appropriation in 2020/21 had been R2.306 billion, of which it had spent R2.115 billion (91.7%), for total underspending of about R190.6 million. Mr Coetzer noted that this was slightly worse than OCJ’s expenditure performance in previous financial years – OCJ usually spent between 95% and 100% of its budget.

The bulk of OCJ’s underspending was in transfers and subsidies, where only 56.8% of the budget had been spent, and goods and services, where only 73% of the budget had been spent. Programme 3, Judicial Education and Support, had substantially underspent, spending only 43.7% of its budget allocation. The COVID-19 lockdown was a contributing factor to underspending, as it had led, among other things, to:
• Delays in filling vacancies;
• The non-procurement of IT equipment;
• A switch to online judicial trainings; and
• The postponement of the sittings of the Judicial Service Commission (JSC). 

In addition, OCJ had budgeted for salary increases of about 6%, but all government employees had in fact received a 0% salary increase in 2020/21.

(See Presentation)

Ms Sejosengwe added that she had been asked by the executive committee to emphasise that OCJ had received a clean audit. The Minister had made an error in his political overview in the previous day’s Committee meeting – he had said that OCJ was “one step closer to obtaining a clean audit,” which implied that it had not done so.

Discussion
Contract management and internal controls

Ms Maseko-Jele congratulated OCJ on its clean audit. When Members asked questions, it was not because they were “fighting” OCJ – the Committee acknowledged that OCJ was doing a good job, and wanted it to perform at “100%.” She asked about the concerns raised in the Auditor-General’s report, especially on inadequate contract management and internal controls. How was OCJ responding to these concerns?

Mr Coetzer replied that the Auditor-General’s finding on contract management had arisen from OCJ’s irregular expenditure. There had only been two cases of irregular expenditure at OCJ during 2020/21, one of which had been incurred in an earlier year. Moreover, both of those cases had been picked up through OCJ’s own internal controls and reported to the Auditor-General in OCJ’s financial statements. The internal controls had not managed to prevent the irregular expenditure, but they had at least detected it. Generally, contract management at OCJ would have been rated green (“good”), but the Auditor-General had had to give an amber rating (“of concern”) because there had been those two cases of irregular expenditure.

He said that, similarly, the Auditor-General’s concern with OCJ’s daily and monthly controls and reconciliations arose from a single inconsistency. According to OCJ’s standard operating procedures, three officials had to sign off on daily and monthly reconciliations. During the year under review, because of COVID-19 and the rotation of personnel at the offices, it had not always been practically possible to have three officials in the office at the same time to sign off on the monthly controls. So, for two months in 2020, OCJ had allowed two officials, instead of three, to sign off on the monthly controls. The Auditor-General had found that OCJ had violated its own internal controls during those two months. OCJ viewed that finding as slightly unfair, and had contested it – lockdown restrictions had made it impossible to comply with the controls. In any case, the non-compliance had been confined to two months in a single quarter.

The Chairperson asked how far away from head office the three officials who had to sign the controls lived.

Mr Coetzer replied that the problem had not been at head office – OCJ also had 24 offices in its service centres. The non-compliance had occurred at a court. It had been physically impossible for all three officials to get to the court before the closing time for the submission of the control documents to the national office. The officials had raised the matter with OCJ’s Director: Financial Accounting, who was responsible for the internal control measure in question, and she had agreed that having two officials present was sufficient. What had been transgressed were solely internal OCJ procedures – all Treasury regulations and so on had been complied with – and it had only been for two months. Nothing had gone wrong with the actual financial transactions – the non-compliance was administrative and related to a missing third signature on the control document.

The Chairperson said that the Auditor-General disagreed with OCJ in that regard. Therefore what would OCJ do in the future if the same situation arose again?

Mr Coetzer replied that the situation hopefully would not arise again, and it was extremely unlikely to, unless the country returned to a hard lockdown. For the most part, more than 80% of officials – and he thought even 100% in some courts – had returned to work. The circumstances had been unique to the hard lockdown, when officials had been physically prevented from coming into the office and there had not been virtual solutions in place to allow officials to sign off from outside the office. However, the Auditor-General rightfully maintained that OCJ had to comply with any rule regardless of the circumstances, even if it was a rule that OCJ had set for itself.

The Chairperson said that the situation might appear unlikely to reoccur, but nobody had expected the COVID-19 pandemic before it arrived. His question was, what measures was OCJ putting in place to ensure that the non-compliance did not reoccur, in the unlikely event that such a situation did arise again?

Mr Coetzer replied that OCJ had instructed the officials or court managers responsible for the reconciliations to obtain pre-approval before deviating from OCJ’s internal rules. That way, management would be aware of the deviation, and it would be documented in writing. In the unlikely event that such a situation arose again, the relevant officials should obtain pre-approval for the diversion from the Director: Financial Accounting or the Chief Director: Court Administration.

Dr W Newhoudt-Druchen (ANC) said that other organisations were using electronic signatures for this kind of thing. Would OCJ consider using them? Nobody knew how long COVID-19 would remain a factor.

Mr Coetzer replied that OCJ had investigated the possibility of using electronic signatures. When needed, their use was allowed in certain instances, with strict controls implemented. However, if OCJ wanted to use electronic signatures widely, without becoming vulnerable to fraud and corruption, it would have to procure many software licenses. In the absence of the requisite budget, that was not currently feasible.

Ms Maseko-Jele said that OCJ did not have an internal control unit. Did it plan to establish one, and, if so, when?

Ms Sejosengwe replied that, as Members would hear during the briefing on OCJ’s forward-funding needs, there were two limitations on OCJ’s employee compensation budget. First, the employee compensation budget had been cut; and, second, in any case, it had a ceiling which OCJ could not exceed. As a result, it was very difficult to expand or provide additional units within the macro-organisational structure of OCJ. In the absence of a dedicated internal control management unit, OCJ handled internal controls by way of an audit facilitation process. This mechanism had been in place at OCJ for many years now. There was a dedicated multi-disciplinary team who ensured that internal control issues were managed at the national level, and that similar committees were established in each service centre at the court level. This process dealt with all auditing issues, and it was also able to address any internal control weaknesses that were flagged by the Auditor-General or by internal audits. OCJ thought that the current audit facilitation mechanisms had been very successful, although it acknowledged that they could not be “100%.” In the future, in the unlikely event that the funds for an internal control unit became available, OCJ would obviously reconsider its approach. The issue had been considered when the macro-organisational structure was first being dealt with.

Ms Maseko-Jele asked for clarification on the target for the payment of contracts within 30 days, and the related internal controls. Was OCJ paying its contracts within 30 days?

Mr Coetzer replied that there had not been any findings about a failure by OCJ to pay its suppliers within 30 days. In fact, 97% of all its invoices had been paid within 30 days, even during the hard lockdown. The remaining 3% were delayed either because OCJ had disputed the contents of the invoices, or because physical constraints during the lockdown had prevented OCJ officials from paying them. In general, OCJ was performing well in this regard, even in the absence of an electronic invoice tracking system – as an infrastructure legacy issue, OCJ staff had to do everything manually.

Mr W Horn (DA) said that he welcomed the clean audit, although the Committee would expect nothing less of OCJ. He noted that Ms Maseko-Jele had already alluded to OCJ’s “backward slide” in supply chain management and especially contract management, which the Auditor-General had pointed out to the Committee. One consequence had been that OCJ had not been quick enough on picking up that it was doing business with some of its own officials. What had been done to deal with this and prevent it from ever happening again? It was “unthinkable” that OCJ officials were not aware that they were prohibited from entering into procurement contracts with OCJ. 

Ms Sejosengwe replied that Mr Horn was mistaken – the officials had not done business with OCJ itself. There were two officials, one of whom had been pursuing a family business, and the other of whom had done business with one of the national departments – she thought it was the Department of Public Works and Infrastructure. Both had been subject to disciplinary proceedings.

Mr Ranako Mabunda, Chief Director: Internal Audit, OCJ, added that both cases had been picked up by OCJ itself, through its internal conflict of interest management mechanisms. OCJ had of course reported the cases to the Auditor-General, which had included them in its audit report. Upon picking up the conflicts, OCJ had immediately taken disciplinary action against the officials. Both received final written warnings, and one had his salary suspended for a month.

Expenditure management and consequence management

Ms Maseko-Jele noted that OCJ had incurred R17 000 in fruitless and wasteful expenditure in 2020/21. Much as it had received a clean audit, OCJ did need to attend to such issues. Could it comment on the fruitless and wasteful expenditure? There had also been no consequence management as a result of either the fruitless and wasteful expenditure or the irregular expenditure – apparently the implicated officials had left OCJ. How did OCJ follow up on misconduct committed by its former employees?

Similarly, the Chairperson said that OCJ had incurred R3 000 and R17 000 in fruitless and wasteful expenditure in 2019/20 and 2020/21 respectively. What were the circumstances of those transactions, which officials had been involved, and had the money been recovered? It had also incurred irregular expenditure of R399 000 – what were the circumstances that gave rise to that, and what had been done about it?

Mr Coetzer replied that there had been one incident of irregular expenditure involving R7.6 million. It had related to the extension of a contract for CaseLines in the Gauteng division of the high court, which had allowed the court to continue operating virtually during the COVID-19 lockdown. Prior to the outbreak of the COVID-19 pandemic, OJC had been piloting CaseLines in the Gauteng courts, which had therefore been operating virtually. The pilot had been planned for January to March 2020, so the courts were supposed to revert to physical operations from 1 April for the remainder of the financial year – nobody had predicted COVID-19. In late March, the hard lockdown began, meaning that it was no longer feasible to revert to physical operations – the officials were not allowed to go back to the courts. It was therefore necessary for OCJ to extend the CaseLines contract so that it could continue to use CaseLines from April to September. The alternative would have been to have no proceedings in the Gauteng high court from 1 April until the end of the lockdown. However, the official responsible for the extension had not followed the proper procedures to obtain approval from the OCJ bid adjudication committee. The transaction had since been regularised through Treasury and the bid adjudication committee – value for money had been obtained, so no recovery was needed.

He said that the official responsible for the transaction had since left the employment of OCJ. According to the Department of Public Service and Administration (DPSA) rules, OCJ could not proceed with disciplinary action if no recovery of money had been required. The financial misconduct had been fully reported to Treasury. The same official had also been responsible for the other transaction recorded as irregular expenditure. That transaction had been very small – R14 000 – and it had involved a contract with a company called Metrofile for the storage of OCJ’s backup tapes. The official had also extended that contract without approval.

He said that the irregular expenditure referred to by the Chairperson, amounting to R399 000, was incurred in 2019/20. Incidentally, the very same official had also been responsible for that irregularity. The official had failed to disclose to the bid adjudication committee that a certain ICT service provider wasn’t the sole service provider. After confirming with the State Information Technology Agency (SITA), OCJ had found that there was in fact one other service provider whom it could have considered. This meant that the contract counted as irregular expenditure, even though value for money had still been obtained.

On fruitless and wasteful expenditure, the OCJ had incurred R3 000 in speeding fines in 2019/20, and R17 000 in speeding fines in 2020/21. Where the fines had been incurred by OCJ officials driving too fast in OCJ vehicles, the consequence management process had been very easy to resolve – that process was already concluded and the officials had returned the money to the state. Those had been small fines. However, some fines had been more complicated and were still under investigation. He did not want to go into too much detail and compromise security, but, in brief, some of the traffic fines had been incurred by members of the South African Police Service (SAPS) VIP Protection Unit, who had been using OCJ vehicles allocated to judges. In most of these instances, SAPS had indicated that the officers had had to exceed the speed limit in the course of evasive security measures. One could not fault SAPS members for actions that they had had to take to fulfil their protection duties, so some of those fines probably would not be recovered.

The Chairperson asked about the official who Mr Coetzer had said had been responsible for the irregular transactions. Why had he left OCJ – had his departure been related to the irregular expenditure? Where was he working now?

Ms Sejosengwe replied that the official had been the head of ICT. He had been charged with misconduct and dismissed. He was now fighting OCJ in a different forum.

ICT system and security

Ms Maseko-Jele said that even Mr Malao had expressed concern about OCJ’s ICT system. OCJ had budgeted R139 million for contracting consultants for ICT support and maintenance. Was OCJ really getting value for money on those contracts, especially since there had been delays in rolling out the Court Online system?   

Mr Coetzer replied that the consultancy contract was in fact R99 million, over a period of three years. Of that amount, about R78 million was for regular services, rendered on a 24-hour basis, while another R20 million was for ad hoc services as required. However, the ICT capacities that were outsourced were daily support and maintenance, and had nothing to do with the Court Online system or CaseLines project. The reason that those capacities were outsourced was that the relevant resources had not been transferred from the Department of Justice and Constitutional Development (DOJCD) to OCJ when other functions had been transferred. If there was one ICT official in the DOJCD offices, responsible for both higher and lower courts, he could not have been divided between DOJCD and OCJ, so he would have stayed at DOJCD. Moreover, OCJ’s employee compensation budget did not allow it to appoint permanent officials for internal ICT support and maintenance. However, the rollout, support, and maintenance of the Court Online system would obviously require a different kind of resource and specialist. He would elaborate on this when he presented OCJ’s forward-funding needs to the Committee.

Mr Horn said that he struggled to “make full sense” of the different reports around court modernisation and OCJ’s ICT environment. The Auditor-General had reported that there were inadequate network security controls, in its view basically because of the use of legacy ICT systems. There had also been a ransomware attack at OCJ in the past. Had there been any progress in that investigation? To what extent had OCJ strengthened its ICT security measures after that attack?

Adv Swart congratulated OCJ on its clean audit. He would have to leave the meeting shortly to attend the Chief Whips’ Forum. He also asked for an update about the ransomware attack on OCJ, and for an update about the more recent ransomware attack on DOJCD. Had the DOJCD attack affected OCJ or court operations?

Adv Breytenbach congratulated the OCJ on its clean audit. Her biggest concerns were around ICT, and those issues had been reasonably thoroughly traversed by other Members. She wanted a comprehensive update on the effects on the court systems of both ransomware attacks – both the attack on OCJ and the recent attack at DOJCD. The Committee was aware that there had been serious problems running the courts, and litigants and legal representatives had had problems communicating with the judiciary, for example in order to file documents or heads of argument. What had been the nature of those problems, had they been rectified, and had the resulting backlog been processed? What steps had been taken to mitigate the risks of something like this happening again? It simply could not happen again. In her view, there had been sufficient prior warning about the ransomware attack, and nothing had been done to mitigate the risk. She was deeply concerned that OCJ, DOJCD, and the court system – including the country’s highest courts – were so vulnerable to cyberattacks. What had been done to mitigate that vulnerability?

Dr Newhoudt-Druchen asked what OCJ planned to do to prevent ICT security breaches in the future.

To this series of questions about ICT security, Ms Sejosengwe replied that she could allay Members’ concern – the DOJCD cybersecurity breach had not had any impact whatsoever on OCJ. OCJ had its own ICT system in place – it did not depend on DOJCD’s system. On security measures that had been taken in respect of OCJ’s ICT system, she proposed that OCJ should provide a comprehensive written report in response. She did not want to disclose too much on a public platform – not because OCJ was shying away from accountability, but for security purposes, given that it appeared that the government’s systems were being targeted. 

However, she could provide a high-level overview of the measures taken. After the ransomware attack, OCJ’s critical systems had been back online within four days. It had worked with SITA on that, and SAPS and law enforcement agencies had been involved in the investigation. Some of the steps that OCJ had taken since then tied together with its response to the COVID-19 pandemic, which had required OCJ to work digitally. OCJ had upgraded the bandwidth of its internet connection and finalised the network design. It had installed new switches – the first phase was completed and had improved network security. It had replaced damaged computers and ensured that there was malware and anti-virus protection on all user ICT equipment. It had also installed new servers – one of the exchanges was at one of the high courts, which was OCJ’s main data recovery site. She did not want to disclose the name of the court publicly, but the details would be included in the written report. 18 servers had been replaced to run the new protection software. The new exchange system had been implemented, and OCJ’s mailboxes – there were over 3 000 – had been migrated. Other servers were being rebuilt to ensure that the court recordings were protected, and OCJ was in the final stages of procuring additional cybersecurity software.

As she had said, the written report would elaborate – she was trying to mention measures whose disclosure in public would not compromise OCJ’s ICT security. However, she could assure the Committee that the cyberattack had been quite a “learning experience” and a “wake-up call,” in terms of ensuring that OCJ had back-ups and so on. OCJ had back-ups through Mimecast. When the system was affected – and sometimes SITA was affected, which was outside of OCJ’s control – Mimecast was always available as a back-up so that the courts could continue to function. The judges were informed as and when the system went down.

The Chairperson asked whether Members objected to Ms Sejosengwe’s proposal that OCJ provide a written response on the details on its cybersecurity measures. It seemed like a fair proposal to him.

Adv Breytenbach and Mr X Nqola (ANC) agreed.

The Chairperson said that, “many moons ago,” judges and magistrates had seriously resisted ICT modernisation. During the COVID-19 pandemic, had it not faced any such resistance to the use of digital technologies in the courts? Could the judges use computers?  

Ms Sejosengwe replied that resisting had not been an option for the judges, because the pandemic had forced everybody to use ICT. Early on, when OCJ was still upgrading the bandwidth and so on, the judges had seen that outdated technologies had led to delays in the courts’ work. They had “embraced” ICT. Even meetings between judges, such as JSC meetings and meetings of the heads of superior courts, now took place virtually. Most of the judges now worked from home, and the courts continued to operate with people connecting from anywhere. The judges had had very few difficulties with the transition, and any difficulties arose not because the judges were resistant but because they had connectivity problems and so on. In such cases – which were rare – OCJ was available to assist the judges, and if necessary the judges could go into the courts and receive assistance from the officials there. However, she could not speak to how magistrates had adapted to ICT – DOJCD would be best placed to respond on that.

The Chairperson said that he did not think Adv Breytenbach had been able to use a computer when she was a prosecutor.

Adv Breytenbach informed the Chairperson that she had prosecuted the only case that had ever been prosecuted entirely virtually.

Ms Sejosengwe said that the evidence that ICT had been embraced was the fact that the proceedings of most high-profile cases were now streamed online, even proceedings in the Constitutional Court. OCJ was very impressed with how the judges had responded to the challenge. It had been a very difficult transition, but the courts and other judges’ forums were now operating virtually.  

Court modernisation projects

Mr Horn noted the Minister’s “good words,” in his political overview to the Committee the day before, about the roll-out of CaseLines in Gauteng. However, one of the performance targets that OCJ had not met appeared to be related to CaseLines. Therefore, “a big question mark” remained around the whole issue of court modernisation. Was there really the kind of progress on court modernisation that the Committee wanted to see, especially during the COVID-19 pandemic, when many courts were still not holding physical hearings?

Adv Swart said that other Members had already alluded to the OJC ICT master plan and technology updates, as well as the Auditor-General’s report about inadequate ICT security systems. He wanted an update on progress on ICT and court modernisation. However, he commended OCJ on the implementation of CaseLines in Gauteng – the ACDP had been using CaseLines very effectively. He would like to see it rolled out more efficiently and more widely. The growing case backlogs were also a concern, but that was probably an issue for the Chief Justice himself to address.

Mr Nqola asked how advanced the planning and budgeting process was for the implementation of court modernisation and digital transformation.

To this series of questions, Mr Nathi Mncube, Chief Director: Court Administration, OCJ, said that “court modernisation” was a broad term and involved many things. Through judicial leadership, OCJ had decided to focus, at this stage, on the Court Online system. Pursuing Court Online as a priority would alleviate a lot of difficulties for litigants, whether or not they had legal representatives, and would help to bring justice to members of the public. The Court Online system was an e-filing system – it would allow members of the public to be able to file from anywhere. It would also deal with rule which required litigants to be within a certain kilometre radius to file – for example, currently, to file in Cape Town, one had to find an attorney in Cape Town. The Court Online System had two components. One component, CRM Dynamics, was the interface the members of the public would use to file documents – for example, if they wanted to issue a summons or file an interdict. OCJ’s service provider, through SITA, had been developing that for about three years. The delays in the Court Online roll-out referred to in the annual report (see slide 16) had happened on this side of the system – the service provider had experienced delays, which in turn had affected DOJCD. CRM Dynamics would definitely be very helpful to the public. The second component of the Court Online system was CaseLines. There was always some confusion about CaseLines – it was not the entire solution, but rather was only the component of the solution that dealt with evidence management. CaseLines had been successfully implemented in Gauteng – the Judge President there had resolved that the CaseLines component should be implemented before the whole Court Online system was rolled out.

Mr Mncube said that OCJ had now decided to halt the roll-out of CaseLines, for many reasons. The first reason was that it could not be rolled out successfully until the necessary infrastructure was in place. Ms Sejosengwe had already mentioned some of the infrastructure upgrades – WiFi and sufficient bandwidth had to be in place. This was a lesson that OCJ had learned from the Gauteng roll-out. Members might be aware that some people in Gauteng had complained about CaseLines, and the problem had been that not all courts had had the infrastructure needed to support CaseLines. For example, to install CaseLines in Mthatha, OCJ would have to get Eskom to provide a fibre internet connection there. A second reason not to roll-out CaseLines now was that the data that accumulated on CaseLines would not be transferable to the broader Court Online system. That would mean that the whole country would have to run on two systems, one of which would be CaseLines. CaseLines also essentially had to be administrated manually, so its maintenance would be expensive and would require personnel whose appointment OJC had not planned for.

He said that OCJ was very close to implementing the Court Online system in its entirety. As reflected in the annual report, Court Online should have been piloted already in Gauteng, but the roll-out had been delayed due to the ransomware attack and the COVID-19 pandemic. OCJ looked forward to having Court Online implemented in the next quarter, and it was working closely with SITA and its service providers.

Mr Coetzer said that he would discuss court modernisation further during OCJ’s presentation on its forward-funding needs. However, as Mr Mncube had explained, OCJ’s focus – which at this stage was partially funded – was the Court Online project. That was the main drive in court modernisation currently.

The Chairperson said last night, in a report from the Committee’s research unit, he had come across a very good and very interesting report from the Minister of Justice and Lord Chief Justice of Northern Ireland. The report was about Northern Ireland’s approach to court modernisation. It considered not only lawyers but also the general public, and covered the question of how to deal with evidence in court, in criminal as well as civil trials. Had OCJ ever looked at the Northern Irish example, perhaps as part of benchmarking for its own court modernisation and CaseLines projects?

Mr Mncube replied that the Court Online system project was started five or six years ago by former Chief Justice Mogoeng Mogoeng, who had travelled with Ms Sejosengwe and other OCJ and DOJCD officials to various countries, including Singapore, Malaysia, and the United Kingdom. There had been a lot of international benchmarking – that was how OCJ had come to learn about CaseLines.

Other matters

Ms Maseko-Jele asked OCJ to brief the Committee on the lessons it had learned during the COVID-19 pandemic so far. The briefing had alluded to some, but she wanted OCJ to elaborate. The briefing suggested that, on the one hand, the pandemic had resulted in some financial savings, but, on the other hand, it had hindered some of OCJ’s activities. She also wanted to hear OCJ’s plans for continuing to operate during the pandemic.

Ms Sejosengwe had partially answered this question while responding to other questions about OCJ’s ICT system (see above). She said that with the small amounts of savings that OCJ had incurred during lockdown, due to the limitations on movement and travel, it had overhauled its user ICT equipment, as well as the servers and so on, as she had already described. OCJ had also ensured that judges were provided with communication tools. Microsoft Teams licenses had been procured, and OCJ had checked all the user equipment – the laptops and desktops – and installed Microsoft Teams on them. It had replaced the equipment which could not support virtual communications platforms, and upgraded bandwidth, as she had already said, to allow officials to work digitally. WiFi in courts, which had previously been limited, had been expanded – it was not only judges but also court officials who needed internet connections. OCJ had also ensured that uninterruptible power supply was installed at the courts.

Mr Horn asked about the 13% turnover rate reported at OCJ in 2020/21, a substantial increase from less than 2% in the previous financial year. What were the reasons for the turnover? Were exit interviews conducted? What measures had been put in place to try and achieve more stability? Also, a 14% vacancy rate was reported among language practitioners, including interpreters. That could have a knock-on effect on the functioning of the courts, which would be very worrying, given the “ever-growing” backlog in the court roll. What were the causes of this vacancy rate, and had it been addressed?

Ms Sejosengwe replied that she thought the 14% vacancy rate for interpreters cited by Mr Horn was an error. Page 79 of the annual report gave a breakdown of the turnover rate. It showed that the most common cause of turnover was resignations, followed by expiry of contracts. She thought that people left OCJ because they were offered better opportunities elsewhere – OCJ was “the best training centre for government.” This had drawbacks for OCJ, but it was a positive contribution to the broader scheme of skills development in government. The high rates of turnover related specifically to the registrars and the occupation-specific dispensation (OSD) – it was quite a unique situation, and Mr Mncube would explain the context. 

Mr Mncube confirmed that the turnover was mainly among registrars. The entry level for registrar positions was very low – MR3-level positions in the OSD required zero to three years’ experience – and registrars were not automatically bumped up salary levels once they had gained experience in their positions. Instead, once registrars had five years’ experience in the courts, they tended to apply for different positions that required five years’ experience – that is, they leveraged their experience as registrars to get better paid positions elsewhere. That was why there was high turnover – at least two registrars in Mpumalanga had left for this reason. OCJ tried its best to ensure that the OSD was correctly applied, though of course there had been mistakes. Registrars were the core business of the superior courts, so they got to acquire a lot of experience, which was beneficial if they applied for positions at Legal Aid, the National Prosecuting Authority (NPA), and other such institutions. As Ms Sejosengwe had said, OCJ ended up functioning as a training centre.

Dr Newhoudt-Druchen said that she was still very concerned about the access to the court system of people with disabilities. She noted and applauded what OCJ’s annual report said about OCJ working with organisations for people with disabilities on its personnel appointments. However, she was concerned about the actual access of deaf people to the courts. For example, an interpreter in one of the courts was only in a level one sign language class. The deaf person he was interpreting for could not understand him, and the case kept getting postponed as a result. Ms Newhoudt-Druchen had been asked to intervene and contact the head of court, who had said that an interpreter would be arranged. Unfortunately, when the deaf person could not understand the interpreter, he became frustrated – and, in response, the judge told him to “behave.” Deaf people needed to have good sign language interpreters so that their cases could be heard properly in the courts. She was “pleading” with OCJ to intervene and communicate with deaf organisations, like the Deaf Federation of South Africa (DeafSA), to get their assistance in appointing and monitoring sign language services in the courts. Nobody in the court system understood sign language interpreting. It was unacceptable to have a student of sign language – a level one student – interpreting in the courts.

Ms Sejosengwe replied that Ms Newhoudt-Druchen had raised this particular case before, but it had occurred in a magistrate’s court, and OCJ was only responsible for the superior courts. However, Ms Newhoudt-Druchen’s comments were still relevant. As mentioned in the annual report, OCJ was trying to partner with organisations for people with disabilities. It would continue to pursue that, because its initial attempts had not been successful, and it acknowledged Ms Newhoudt-Druchen’s advice about sign language interpretation.

Dr Newhoudt-Druchen said that it had been a very difficult year because of the COVID-19 pandemic. However, she had not seen any information about the COVID-19 vaccination rate among court personnel. She had read about a judge who was adamant that he would not get vaccinated but that he would sit in court. What was OCJ doing in cases like that one? COVID-19 vaccination was a safety issue.

Adv Breytenbach asked what progress there had been, if any, in the investigation into the break-in at the OCJ’s Midrand offices in 2017. It had seemed that there was some good evidence in the case.

Ms Sejosengwe replied that Members might have forgotten, but the last time the Committee had asked about the investigation, OCJ had reported that SAPS had been unable to find the culprit. The case had therefore been closed. 

The Chairperson noted that OCJ’s report had discussed judicial education and had briefly mentioned the JSC. However, the JSC was non-compliant with Section 6 of the JSC Act, insofar as it had never submitted a report to Parliament on its activities.

Ms Sejosengwe replied that OCJ submitted the JSC report annually, in line with Section 6 of the JSC Act. According to Section 6, the reports had to be submitted within six months of the end of the year – she assumed that referred to the financial year, in which case the reports were due in September. For 2020/21, the JSC report had probably been late – it was submitted in October 2021. However, it had been submitted, through the Parliamentary Liaison Office at the Ministry. It was unfortunate that it had not reached Parliament yet.

She showed Members a print copy of the report, and Mr R Dyantyi (ANC) asked what it was.

Ms Sejosengwe replied that it was the JSC’s annual report. It had been submitted on 25 October. She proposed that, with the Chairperson’s permission, the OCJ could submit future JSC reports to the Committee directly, through the Committee secretariat. The 2020/21 report could also be emailed to Members now.

Mr Dyantyi thanked the Chairperson for bringing up the JSC reports. It was an important issue – no institution that used public funds could be allowed not to account for its activities. According to the Committee’s records, the JSC had never submitted to that kind of accountability before – but that chapter would close now, during the sixth Parliament. He would be pleased to find that a JSC report did exist – an email could prove that it did. He and Adv Breytenbach belonged to the JSC, and wanted it to be held accountable for its activities, so he looked forward to receiving the report. It had been “a pain” that the JSC accounted only “to itself.” 

Ms Sejosengwe said that, if she understood Mr Dyantyi correctly, he was claiming that the JSC had not been submitting reports, which was incorrect. She showed Members the physical copies of the JSC’s last four annual reports. She said that all of them had been submitted to Parliament. At the advice of the Ministry’s Parliamentary Liaison Office, they had been submitted to the office of the Speaker – perhaps that was why they had not reached the Committee.

The Chairperson sought to confirm that OCJ had submitted the most recent JSC annual report to Parliament through the Ministry’s Parliamentary Liaison Office.

Ms Sejosengwe replied that that was correct. The JSC report was signed and submitted by the Chief Justice, so it was OCJ administrators who ensured that the report reached Parliament. In the future, with the Chairperson’s permission, while the reports were being sent to the Speaker through the Ministry, OCJ could simultaneously submit them directly to the Committee, because it was the Committee which would be exercising oversight.

The Chairperson said that he was not sure about that proposal. The JSC Act required the report’s submission to Parliament, not necessarily to the Committee. It was at the Speaker’s discretion to send the report to any committee, or even to a new ad hoc committee, for processing. However, Ms Sejosengwe was saying that OCJ had been submitting the JSC reports through the Ministry’s Parliamentary Liaison Office. The Committee should check where the missing link in the chain was – had the Ministry been sending the reports to Parliament?

Ms Sejosengwe said that she would leave that in the Committee’s hands. In the future, she could copy the Committee secretariat into the OCJ’s submissions on the JSC.

Office of the Chief Justice: 2021/22 performance and funding needs
2021/22 performance to date

Mr Malao said that, in the first quarter of 2021/22, OCJ had achieved all 17 of its quarterly targets. In the second quarter, it had achieved 19 (95%) of 20 targets. OCJ had again failed to achieve its target of 2% representation by people with disabilities in the staff – it had achieved 1% – and, in response, OCJ proposed to ringfence certain vacancies for people with disabilities.

The Chairperson said that the Committee was familiar with the presentation and with OCJ’s financial information, so OCJ should not present on its expenditure in the current year and should instead move directly to its forward funding needs.

Medium-term funding needs

Mr Coetzer discussed the medium-term expenditure framework budget allocation to OCJ following the budget cuts by Treasury. In the current year, OCJ had been allocated R2.33 billion; in the next three years, it was allocated about R2.33 billion, R2.35 billion, and R2.46 billion respectively.

He also discussed the impact on OCJ of the budget cuts. For example, cuts to the goods and services budget meant that OCJ could not currently fund its outsourced ICT support (R20 million per year), its national office rental (R15 million shortfall per year), or Court Online operational support (R9 million per year). Stagnation in the capital assets budget undermined OCJ’s ability to build infrastructure for court modernisation and ICT security, and OCJ was also in a “dire position” with regard to employee compensation.

To meet its critical funding needs over the next three years, OCJ required an additional R225 million, R174.4 million, and R184.6 million in 2022/23, 2023/24, and 2024/25 respectively.

(See presentation.)

Discussion
Mr Dyantyi said that he was not responding to the briefing, but rather had a proposal on the JSC matter that had been discussed earlier. Internally, the Committee should follow-up with its secretariat to see whether it had received any of the JSC reports. The Committee was eager to be briefed on the JSC’s performance. To OCJ, he said that the JSC Act was clear that the JSC’s annual reports should be submitted to Parliament, so he was “puzzled” that OCJ had been sending the reports to the Ministry all along. If he were the Minister, he would treat those reports as matters for his information – he would not assume that they were supposed to go through his Ministry to Parliament. The Committee had not seen any annual reports for the three financial years that had passed since the start of the sixth Parliament.

The Chairperson said that the Committee would consider OCJ’s financial needs. By the time it concluded the Budgetary Review and Recommendation Reports (BRRR), it would have formulated its views, which it would share with the House at the BRRR debate, sometime early in 2022. The Committee would carefully consider everything that had been submitted to it. If necessary, it would refer matters to Parliament so that they could be raised with Treasury. The Committee would also pursue Mr Dyantyi’s proposal and check why the Committee had not been receiving the JSC’s reports, so that it could go through those reports.

He thanked OCJ for always maintaining high standards. This was especially important because OCJ was the leader of the judiciary, and thus had to lead by example. When there were shortcomings for which OCJ needed to account, it was forthright and honest, and it always had reasonable explanations to provide. He thought that this was true accountability. The Committee could see a strong correlation between OCJ’s clean audit and its performance, which was encouraging. In considering OCJ’s forward funding needs, it would try to ensure that OCJ did not “collapse,” because the judiciary could not collapse. The judiciary maintained the rule of law, and there could be no economic recovery without the rule of law, because there would be no investment. The Committee was very encouraged by JSC’s report and by the fact that it had reacted strongly to even the smallest of transgressions. It hoped that other state entities, especially other entities under its own oversight, would “learn one or two things” from OCJ.

Public Protector South Africa 2020/21 Annual Report
The Chairperson apologised to PPSA for keeping its delegation waiting – the Committee’s engagement with OCJ had taken longer than planned. The Committee’s programme was very busy at this time of year.

Adv Busisiwe Mkhwebane, Public Protector, said that PPSA had listened attentively to the OCJ’s presentations, because it learned from doing so.

Introductory remarks by the Public Protector

Adv Mkhwebane said that she had less than two years left in her term as Public Protector. In the past five years, PPSA had done “exceedingly well” in implementing Vision 2023. PPSA had also recently celebrated its twenty-sixth anniversary, and she paid tribute to her predecessors. PPSA had received its second successive clean audit, which was an achievement, given that in the past PPSA had been considered technically insolvent.

She discussed Vision 2023, the eight-pillared blueprint which was at the centre of PPSA’s work and which aimed particularly to broaden access to PPSA services. She also listed some highlights of PPSA’s performance in the year under review, including helping to establish effective in-house complaints units at other institutions such as the Department of Home Affairs (DHA). PPSA had adapted to the challenges of the COVID-19 pandemic, and had investigated the social relief of distress grants, irregularities in personal protective equipment (PPE) procurement, and public health care facilities. It had also worked with partners in the higher education sector, aiming to address student grievances to prevent further disruptive student protests. In its investigation work in 2020/21, PPSA had finalised 6 927 matters (74%) out of a total caseload of 9 299.

2020/21 annual performance

Ms Thandi Sibanyoni, Chief Executive Officer, PPSA, took the Committee through amendments that were made to the annual performance plan following the outbreak of the COVID-19 pandemic. The annual report was based on the targets in the revised plan. 

In 2020/21, PPSA had achieved ten (83%) of its 12 annual targets, an improvement over an achievement rate of 79% in 2019/20. The following targets were not met:
• 100% implementation of mobile referral application (not implemented); and
• Finalise the two systematic investigations/interventions identified in 2019/20 (one completed).

On the first target, Ms Sibanyoni said that PPSA had budgeted R500 000 for the development of the application, based on market research. However, the COVID-19 pandemic had inflated the prices of technological solutions, so all quotations received had exceeded that budget and the procurement process had been unsuccessful. Treasury had since approved a deviation for PPSA to collaborate with the Innovation Hub, another government agency, and the application would be finalised in 2021/22.

2020/21 audit outcomes

Ms Yalekile Lusibane, CFO, PPSA, said that, in 2020/21, PPSA had not only maintained its clean audit status but had also reduced the number of non-material audit findings from 35 to 21.

In 2020/21, PPSA had cleared R32.68 million in historical irregular expenditure through consequence management and other means, with the condonation of Treasury, and the closing balance of irregular expenditure was R10 million as of March 2021. It had incurred R81 572 in fruitless and wasteful expenditure in the year under review, for a closing balance of R624 559 (inclusive of unresolved transactions from prior years).

2020/21 financial performance

In 2020/21, PPSA’s expenditure had amounted to R351.29 million, against revenue of R367.55 million, which included a R30.5 million bailout from DOJCD towards the end of the year. Thus it had reported a budget surplus of R16.2 million (4.4% of revenue).

Ms Lusibane said that compensation of employees was PPSA’s biggest expenditure item, amounting to 70% of PPSA’s total revenue. In October 2020, Treasury had reduced PPSA’s employee compensation budget by R16.1 million, affecting 17 positions.

2021/22 performance to date

Ms Sibanyoni said that, in the second quarter of 2021/22, PPSA had achieved five (71%) out of seven quarterly targets. Most of the targets were cumulative, so this also reflected PPSA’s quarter one performance. The following targets were not met, both in Programme 2, Investigations:
• Finalise 14 investigation reports (11 finalised); and
• Hold three bilateral meetings with organs of state on systemic challenges (one held).

On the first target, Ms Sibanyoni noted that cumulatively PPSA had finalised 42 investigation reports in the first half of the year – it had finalised 31 reports in the first quarter. Similarly, it had held four bilateral meetings in the first half of the year, having held three during the first quarter.

Ms Lusibane said that in the first two quarters of 2021/22, PPSA had spent R168.61 million against revenue of R167.51 million, resulting in a deficit of R1.1 million.

Medium-term funding needs

Ms Lusibane provided a historical overview of the establishment and work of PPSA. The expansion of its mandate under the Constitutional Court’s Nkandla judgement had not been budgeted for. PPSA required additional allocations of R16.4 million, R29.69 million, and R30.02 million in 2022/23, 2023/24, and 2024/25 respectively. These funds were required for the following items:
• Critical positions among the 33 existing vacancies;
• External subject matter experts;
• Security for provincial and regional offices;
• Upgrades to the telephone system; and
• Skills development and training.

(See Presentation)

The Chairperson asked whether the chair of the PPSA audit committee wished to make any concluding remarks, but she was not in the meeting.

Discussion
Mr Nqola said that the Committee noted the PPSA’s forward funding needs. It also congratulated PPSA on its clean audit – Parliament supported good governance, so it gave credit where it was due on audit outcomes. However, was the clean audit the work of PPSA’s internal resources alone? He was asking because one department had improved its audit opinion by hiring external consultants. Did PPSA retain financial or auditing consultants?

Adv Mkhwebane replied that Ms Lusibane would answer in full, but PPSA always learned from its engagements with the Committee, including in respect of its internal audit. She was proud that PPSA had its own internal audit unit – she thought it comprised one senior manager and two or three auditors.

Ms Lusibane said that, in the past, PPSA had outsourced its internal audit. However, since 2019/20, as Adv Mkhwebane had said, PPSA had had an in-house internal audit unit, comprised of a senior manager and two internal auditors. That unit conducted all internal audits at PPSA. PPSA also compiled its own financial statements and its own performance information for quarterly and annual reporting. There was only one transaction which it outsourced: it hired external consultants to calculate the post-employment benefits for the financial statements, because it did not have internal actuarial expertise.

Mr Nqola said that National Treasury had recommended that PPSA should partner with another organ of state to develop its mobile referral application (see slide 24). Why had the application not been developed in 2020/21? Had PPSA engaged with the organ of state that it was going to partner with? If not, why not? What was the expected turnaround time on the project?

Adv Mkhwebane replied that PPSA had budgeted an amount which it had thought, based on market research, would be sufficient to appoint a service provider for the development of the application. However, the price had increased by the time PPSA had advertised for the tender, which had been during the pandemic. Subsequently PPSA had approached Treasury.

Ms Sibanyoni confirmed that PPSA had done market research to inform its procurement plan and budget allocation in respect of the mobile referral application. Market research had indicated that the contract should cost less than R500 000, so PPSA had allocated R500 000 to it. However, when the procurement process began, it transpired that prices had increased, and PPSA had been unable to procure the necessary services from the existing budget. In terms of Treasury’s procurement policies, PPSA could not have directly approached the Innovation Hub or any other organ of state – Treasury required it to go through a procurement process in which anybody could participate. Organs of state did not usually participate in procurement processes initiated by government, so PPSA had not received bids from the Innovation Hub or any branches of SITA. However, because the Innovation Hub was an organ of state, PPSA could negotiate prices with it. Thus PPSA had approached Treasury for permission to deviate from procurement processes in order to engage directly with the Innovation Hub. Unfortunately, that request had only been approved late in the financial year – that was why PPSA had been unable to develop the application in 2020/21.

Mr Nqola said that from 2016/17 to 2020/21, the number of performance targets in PPSA’s annual performance plan had decreased annually. In 2016/17, PPSA had had 45 targets – in the year under review, it had 12. Why was that?

Adv Mkhwebane replied that one issue was funding. PPSA lacked sufficient funding, and its budget had been cut. It had been established as an ombudsman but its mandate had since evolved, without commensurate funding increases. It had to ensure that its targets were aligned to its budget.

Ms Sibanyoni said that in previous annual performance plans, the targets had been more output-driven. However, there had since been a DPSA directive instructing state entities to use outcome-driven targets. For example, instead of having a target for the number of information sessions held, one should have a target for the impact of those sessions on the people who attended them. So PPSA had consolidated some of its output-driven targets in order to derive outcome-driven targets. Other targets had been downgraded to the operational plan. For example, one indicator in the operational plan was the number of internal customer service awareness sessions that PPSA held. That was an output-driven operational matter and therefore not suited for the annual performance plan, but it was included in the operational plan and in some official’s performance agreement. That an indicator had fallen out of the annual plans did not necessarily imply that PPSA no longer carried out the corresponding functions.

Mr Nqola asked for the details of the transaction involving Bowmans law firm which had been marked as irregular expenditure and later condoned by Treasury. The annual report only said that it was a R22 million transaction involving Bowmans. 

Ms Lusibane replied that the R22.2 million amount involved two legal firms, one of which was Bowmans. In 2015, those firms had been appointed to deal with all of PPSA’s litigation matters. However, they were appointed, using the request for quotation system, on a limit of R500 000 per firm. Ultimately the firms had dealt with matters exceeding R500 000, and PPSA had had to report all expenditure above that limit as irregular expenditure. The transactions had gone before the financial misconduct committee and last year Treasury had condoned them. The firms had been appointed in 2015 but the matters had run over a period of years – she thought up to the 2017/18 financial year – which was why the amount was so large. 

The Chairperson asked which firm had been appointed alongside Bowmans.

Ms Lusibane replied that it had been Bowmans and Adams & Adams.

The Chairperson noted that no firm had been appointed from historically disadvantaged groups.

Ms Lusibane replied that that was correct, for the period in question. However, PPSA now had a list or panel of various law firms, which included people from historically disadvantaged groups.

The Chairperson asked PPSA to provide a written account of the matter, including much more detail, especially about how the R500 000 limit had been breached.

Adv Mkhwebane replied that PPSA would provide a report in writing. She added that subsequent to this matter, and after a period in which it had used the panel of the Electoral Commission (IEC), PPSA had appointed its own panel of attorneys to address exactly the issue that the Chairperson had raised.

The Chairperson sought to confirm that PPSA had not used a panel of attorneys in 2014/15.

Adv Mkhwebane replied that it had not. She thought it was in 2017 that PPSA had entered into an agreement with the IEC to use the IEC panel, and then had appointed its own panel.

The Chairperson said that PPSA’s written report should also explain how law firms and attorneys had been appointed before the panel arrangement had been initiated.

Ms Maseko-Jele suggested that the report could also give Treasury’s reasons for condoning the R22.2 million in irregular expenditure. The initial limit for the transactions had been R500 000 – how had the ultimate payment ballooned to R22 million? That was a large amount, and the Committee needed to follow up. If it was possible for the state to recover some of the money, it had to do so.

Dr Newhoudt-Druchen asked whether there had been any progress in the development of the mobile referral application. Had it been tested or piloted?

Ms Sibanyoni said that PPSA had signed a contract with the Innovation Hub, which was busy developing the application. The application would be developed by the end of 2021, and tested and piloted in a few provinces from January 2022, so that it could be fully rolled out by April 2022.

Dr Newhoudt-Druchen asked whether an exit interview had been conducted with PPSA’s former Chief Operating Officer (COO). He had been appointed in July 2020 and had resigned in September 2021, staying just over a year. Why had he resigned so soon after his appointment?

Ms Sibanyoni replied that, on a Monday morning, she had received a phone call from the COO, who had said that he was resigning with immediate effect. Of course, she had suggested that they should discuss his reasons, or that he should take a few days off to reconsider. He had said that he was resigning for personal reasons, which he had not wished to share with her. She still did not know what the specific reasons were. There had not been any exit interview – he had been unwilling to come to the office for one, and she could not force him to. He had made a choice, and PPSA had had to accept it.

Dr Newhoudt-Druchen said that while reading or speaking with her family, she often heard complaints about DHA. In the Western Cape, people queued through the night to have a chance of getting into the DHA offices in the morning. Had PPSA any relationship with DHA? Had it received any complaints about this? If so, had it followed up on or investigated the situation? Fortunately, there was underground parking at one of the DHA offices, but people still did not feel safe waiting outside in the early hours of the morning.

Adv Mkhwebane replied that five or six years ago, PPSA had inspected DHA and had published a report about its processes for refugees. The Committee could coordinate with the Portfolio Committee on Home Affairs about that. Many refugees who had been processed and were using asylum visas experienced delays. Either they were waiting for the Standing Committee for Refugee Affairs to confirm the decision of a Refugee Status Determination Officer, or, if they had initially been rejected for refugee status, they were awaiting the outcome of an appeal. The South African asylum system tended to get “clogged” at the level of the Standing Committee for Refugee Affairs. So there was a report on that matter already, which could be shared with the Committee – PPSA had done its part, and had recommended remedial actions and so on. Unfortunately, the Minister had taken the report on review. The report’s recommendations would be helpful if implemented. Sometimes PPSA issued reports with the intention of changing and improving South Africa’s constitutional democracy, but the status quo did not change because the reports were not implemented.

In a written comment, Dr Newhoudt-Druchen clarified that her question had not been about the refugee situation. She was asking whether PPSA had received any complaints from citizens about the long queues at DHA in Cape Town, where she was.

Adv Kholeka Gcaleka, Deputy Public Protector, replied that PPSA had not received any complaints about that specific situation in the Western Cape. However, PPSA had published the report outlined by Adv Mkhwebane, about the refugee situation and the delays at DHA’s Refugee Appeal Board. 

Ms Maseko-Jele congratulated PPSA on the clean audit. It had done the Committee proud in this regard, and it should be commended on what it had done in the last two financial years. In reference to the COO’s departure, and judging from the history of people leaving that position, it seemed that there was a serious problem in the COO’s office in particular. Why could PPSA not maintain stability in this position? The COO played a very important role in the organisation. What was PPSA’s plan for retaining future appointees?

Adv Mkhwebane agreed that the COO was critical. She remembered that Mr Dyantyi had once asked PPSA why it was necessary to fill the COO position when there was a Deputy Public Protector to assist. Of course, the Deputy Public Protector was part of the executive authority – it could not deal with operational matters on the necessary level. PPSA needed the COO to oversee all its executive managers. One issue that probably contributed to the instability was the fact that the position was very demanding, both in terms of seniority level and in terms of the capacities required of the individual who filled the position. It came with a lot of pressure. The operations manager was responsible for overseeing the quality of investigations, the support given to investigations, the targets, and so on. Initially, PPSA had focused on the legal qualifications required for the position, but, in reality, the COO had to have various skills and capacities. That person had to be able to deal with the pressures of the position, and had to understand the importance of his responsibilities – they cut across the organisation, affecting each investigation and the execution of PPSA’s central mandate.

She said that PPSA currently had an acting COO, who had a lot of experience in auditing and who had devised a new model for investigations at PPSA. With the Chairperson’s permission, she would ask the acting COO to explain the new model to the Committee. Investigations would no longer be located in a particular office or province, but would be considered as belonging to the PPSA as a whole.

Ms Lethabo Mamabola, Acting COO, PPSA, said that she would provide a high-level overview of the new model. At the end of the second quarter, PPSA had 1 936 ongoing cases and 134 investigators, for an average caseload of 14 files per investigator. The new investigation model used a “projectising” methodology, to ensure that work was distributed equally across PPSA. What mattered now was not where the matter had initially been lodged, but rather “buzz words” like “integration” and “national competency.” There would be a central repository for all ongoing matters, and personnel across all offices would work on the cases collectively. It would be a move away from investigators working alone with their own files, and towards working collaboratively. Thus the model also sought to develop PPSA’s human resources. There would be elements of peer-to-peer review and on-the-job training, and investigators would work with different colleagues, supporting each other and holding each other accountable for PPSA’s caseload. The new model was “in motion” – consultations had been held, and the project was now at the implementation phase. PPSA could provide more details at its next meeting with the Committee or, even better, it could prepare a dedicated submission on the model for the Committee.

Adv Mkhwebane concluded that the new investigations model would hopefully help to bring stability to the COO’s office. Hopefully, it would remove a lot of pressure on staff, because the work would be done collectively. She and Adv Gcaleka put a lot of pressure on PPSA personnel, so that PPSA could not be accused of unduly delaying investigations, which were its core mandate. The model had been approved by PPSA’s leadership – herself, Adv Gcaleka, Ms Sibanyoni, Ms Lusibane, and Ms Mamabola.

Ms Maseko-Jele said that the presentation mentioned that one quarterly target had not been achieved because the executive authority had failed to sign investigation reports on time (see page 33). Why had that happened? She might have missed PPSA’s explanation – the connection was bad because of loadshedding.

Adv Mkhwebane replied that a number of reports had been ready for signature, but they had still been tied up in internal processes when the 30 September deadline arrived. PPSA had an internal backlog project, where it dealt with all matters that had been not been completed within a certain amount of time.

Ms Maseko-Jele said that she knew that, due to the COVID-19 pandemic, PPSA had “paused a bit” on its outreach roadshows. She thought it was important for the roadshows to take PPSA into the provinces – it had an impact on the communities, and gave them hope. Now that the lockdown regulations had been eased, did PPSA plan to resume the roadshows?

Adv Mkhwebane replied that PPSA would see whether the roadshows could be included in the operational plan and thus in her and Adv Gcaleka’s schedules. It was probably unwise to include the roadshows in PPSA’s strategic documents, in case the lockdown regulations were tightened or similar obstacles arose.

Adv Gcaleka said that roadshows had continued during the pandemic, though in compliance with the COVID-19 regulations and thus not in their traditional form. For example, PPSA had met members of the public at hospitals and had met students during its systemic investigation of higher education. Other roadshows were planned, but they would obviously have to comply with the COVID-19 regulations.

Ms Maseko-Jele asked for more information about PPSA’s skills development programmes, and about its relationship with the Special Investigating Unit (SIU) and Justice College in this regard. The Committee needed to ensure that skills development was taken care of at PPSA.

Adv Gcaleka replied that PPSA had requested skills development interventions from DOJCD through the Justice College – it had already submitted its training needs. Its internal training committee, chaired by Adv Stoffel Fourie, had been re-established. The SIU had done training, and the Financial Intelligence Centre was doing training on a continuous basis. PPSA was in the process of finalising a memorandum of understanding with the Hawks – it had already met with Lieutenant General Godfrey Lebeya, the head of the Hawks, to discuss that. It was also negotiating a memorandum of understanding with the NPA, which would entail staff training. It had held several internal workshops to discuss gap areas in its investigations and so on, which was also a form of skills development. She and Adv Mkhwebane conducted file investigations, which they used as an opportunity to coach and mentor personnel on an ad hoc basis. The intention now was to institutionalise coaching, training, and mentoring. PPSA would devise a schedule of monthly internal training sessions and workshops, which would cover such topics as investigators’ past experiences and trends in new legislation. It was also looking at establishing a digital library, although that was, of course, dependent on its budget.

Adv Mkhwebane added that PPSA had met with DOJCD leadership and the Ministry. They were in engagements about training senior PPSA investigators, especially in drafting skills, at the Justice College.

Ms Maseko-Jele asked about PPSA’s human resources capacity. How many interns had PPSA retained in 2020/21? Had it been able to increase capacity in its investigations programmes or to appoint more in-house legal advisors? Capacity needed to be taken care of, so that there were people to support the organisation at the roadshows and in the offices. 

Ms Sibanyoni replied that PPSA retained 11 interns. It appointed interns as and when it had vacant entry-level positions. Unfortunately, due to cuts to the employee compensation budget, it had not been able to increase its capacity. That was why it was proposing that Treasury should review its budget and correct the baseline allocation. As Ms Lusibane had explained, since the establishment of PPSA, there had never been a deliberate allocation for the capacitation of the institution itself – for leases, equipment, and so on. Instead, funds were allocated in proportion to the number of investigators that PPSA had, and other expenditure items had to be funded with money tapped from elsewhere.

However, she said that PPSA had appointed two additional attorneys internally. Just yesterday, she had been speaking to the human resources unit about the need to appoint more legal practitioners – probably at a more senior level – in order to reduce further the number of matters that PPSA outsourced, and thus further reduce PPSA’s legal fees. It was being considered, but it was “really difficult” with the current budget cuts. Currently, PPSA was filling vacancies in an unsustainable way – when somebody vacated one position, it used that money to fill a different position. Such appointments filled one gap while opening another gap elsewhere in the organisation.

The Chairperson asked whether PPSA would be a going concern without the DOJCD bailouts. The last DOJCD bailout had amounted to more than R30 million.

Adv Mkhwebane replied that Ms Lusibane’s overview of PPSA’s history (see slides 48-50) had been intended to “pre-empt” this kind of question. However, Ms Lusibane could elaborate.

Ms Lusibane said that, if “going concern” was being used as a piece of accounting terminology, this question was assessed at the end of each financial year when the financial statements were prepared. The last time this assessment was performed, PPSA had forecasted the 12 months from 1 April and had confirmed that its assets were sufficient to cover all financial obligations due in the current financial year. That assessment took into account the most recent DOJCD bailout. However, in practical terms, and as mentioned in the presentation, PPSA continued to rely on DOJCD for financial support. It had engaged DOJCD and Treasury on the question of correcting PPSA’s baseline budget allocation for the next three financial years. The talks were still underway. Without that correction, under the standing baseline budget for the next three years, PPSA would remain a going concern, but underfunding would affect its work, and some operational matters would suffer.

The Chairperson asked for an update on PPSA’s drop box programme at the magistrates’ courts.

Adv Gcaleka replied that drop boxes had been distributed across the country, with five in each province. It had been indicated that more drop boxes were needed, so that they could be more accessible.

The Chairperson said that, at its last meeting with PPSA, the Committee had raised the fact that the Public Protector Act (PPA) was not aligned with the Constitution. How far was PPSA in ensuring that the PPA was brought into alignment with the Constitution?

Adv Neels van der Merwe, Manager: Knowledge Management and Legal Research, PPSA, replied that there were two dimensions to amendments to the PPA, which would come up separately in DOJCD’s legislative programme. One issue was the financial instruments and statutory authority that PPSA would require for the turnaround strategy and cost recovery model which it had submitted to Treasury. In that regard, PPSA had submitted to Treasury and DOJCD a concept paper with draft amendments. DOJCD was including PPSA in the reviews it was conducting of the legislation of similar institutions, so those amendments were currently “on the table” at DOJCD.

He said that a second issue was the more comprehensive review and amendment of the PPA. That process had been started by Adv Mkhwebane – PPSA had originally made submissions to the former Minister in 2018. The comprehensive review had been “overtaken” by the amendments for the turnaround strategy and cost recovery model, but it had now been revived. PPSA had prepared some draft amendments, and it had identified other areas of the PPA – for example, relating to search and seizures – which should be re-aligned to the Constitution and to various court judgements. There was currently a reference group, under the direction of Adv Gcaleka, which was consulting internally about possible additional areas for amendments. Within the next few weeks, PPSA would submit its proposal to the executive authority. It would then be shared with DOJCD, so that DOJCD could consider it while reviewing the PPA in relation to the turnaround strategy and cost recovery model. After that, a comprehensive review of the PPA would be included in DOJCD’s legislative programme. PPSA was in consultation with DOJCD’s state law advisers on these issues. 

The Chairperson asked whether there had been any improvement in the security situation at PPSA’s offices. That had been another serious concern for the Committee over the last two years.

Ms Sibanyoni replied that PPSA definitely did not have adequate security in its offices. The exception was the head office, which had security personnel. Of the 17 provincial and regional offices, 12 had no security personnel. The other five relied on the landlords’ security personnel. Videofied alarm systems had been installed in all the offices – that was the only security measure. PPSA hoped to be able to fund security if and when Treasury corrected its baseline allocation. Security was one of the issues that it had raised in its submission to Treasury – given the type of work that PPSA personnel did, they needed to be protected. 

The Chairperson asked whether PPSA was satisfied with the security of the documents in its possession. If it did not want to respond publicly, a written response was fine.

Adv Mkhwebane replied that PPSA would respond in writing. However, it was at an advanced stage in this area. PPSA’s Senior Manager: Security was working very closely with the State Security Agency on improving PPSA’s compliance with the Minimum Information Security Standards (MISS). In writing, PPSA would inform the Committee about its internal processes for securing information and documents.

The Chairperson said that one of the transactions marked as fruitless and wasteful expenditure was a payment to a law firm which had failed to appear in court. He was not sure whether this was the same transaction involving a law firm that Mr Nqola had already asked about. The Auditor-General had told the Committee that part of the relevant amount had been paid back, but had the rest of the amount been paid back?

Ms Lusibane said that the transaction involved a legal firm which had failed to appear in court on PPSA’s behalf. The amount, about R100 000, had been recovered in full. It had been recovered from one of the outstanding invoices on a different matter that the firm had handled for PPSA. PPSA had also terminated its contract with that firm, and had reported it to the body that dealt with the conduct of attorneys and advocates.

Adv Mkhwebane confirmed that this transaction was separate to the transaction that Mr Nqola had asked about – this one had not involved Bowmans. PPSA would confirm and report to the Committee the name of the law firm in question.

The Chairperson said that there was also fruitless and wasteful expenditure incurred as a result of someone missing a flight. Had that person paid the money back in full?

Ms Lusibane said that the matter was currently pending at the financial misconduct committee. The employees involved had provided detailed accounts of what had happened, and PPSA had assessed their responses and asked for more information. The matter should be concluded before the end of the third quarter.

The Chairperson said that it would be important for the Committee to “do justice” to PPSA’s new projectising model for investigations. The Committee would schedule a meeting for PPSA to make a detailed presentation on that – it was at the core of PPSA’s mandate. Earlier in the meeting, PPSA would have heard that he had referred OCJ to PPSA on the issue of recruiting people with disabilities. OCJ was struggling to recruit people with disabilities, so he had told them that PPSA had been able to reach 2.6% representation, which was above the national requirement. When an entity found a successful model, that model should be shared across the state. One problem in government was that, though there were “pockets of excellence” in the state apparatus, there were also “pockets of the opposite,” and the two did not talk to each other and learn from each other.

He said that the Committee was pleased that PPSA was continuing to achieve its performance targets in a sustainable way. In the last three years, its achievement rates had been 72%, 79%, and now 83%, respectively. Parliament wanted there to be a strong correlation between an entity’s clean audit and its performance – there was no point in statistics or audit opinions that made managers feel good about themselves but did not have any impact on the country’s people. The audit opinion should be reflected in the performance report, and the performance should be reflected in its impact on the lives of the people. An example was the case Adv Mkhwebane had mentioned in her introductory remarks (see slide 8-9), in which PPSA’s intervention had really brought justice to a person – the woman’s house, which had been bulldozed, had been rebuilt as a result. Parliament also strongly supported government departments establishing in-house complaints units, as PPSA was encouraging them to do. The aim was to build a responsive state and government, where people did not need to incur serious legal fees in order to receive service. PPSA could help to capacitate the state.

He said that the Committee appreciated that PPSA had taken on internally some functions which it had previously outsourced, especially the internal audit. The beneficial effects of this were reflected in PPSA’s having dealt promptly with irregular expenditure issues. He was also pleased that PPSA had maintained its clean audit opinion – there was no point in being a “one-day wonder” and getting a clean audit only once a decade. Good governance had to be sustainable. PPSA should now start competing against its own results. The Committee would not expect any regression from this clean audit; and the clean audit had to correlate with good performance, which in turn had to be felt by members of the public. It was good to have reports that could be read by academics and analysts, but it was much better for good results to be felt by the public. He encouraged PPSA to continue with its hard work. The Committee knew that the investigators were the core of PPSA’s work, and, since Adv Mkhwebane had said that they were overworked, PPSA should seriously consider establishing wellness programmes.

The Committee adjourned for half an hour’s break.

South African Human Rights Commission 2020/21 Annual Report
The Chairperson welcomed the new Commissioners at the South African Human Rights Commission (SAHRC), Ms Philile Ntuli and Ms Fatima Chohan.

Prof Bongani Majola, Chairperson, SAHRC, conveyed apologies from two Commissioners, Ms Ntuli and Adv Jonas Sibanyoni, who were at a hearing in Mpumalanga about service delivery complaints.

Introductory remarks by the Chairperson

Prof Majola said that for most of 2020/21, SAHRC had operated amid the COVID-19 pandemic, which had exacerbated existing human rights problems and required constant review of SAHRC’s strategy and methods. The pandemic and related regulations had resulted in SAHRC meeting only 64% of its annual performance targets, which was a lower achievement rate than in previous years, though it did still achieve 75% of its targets in Programme 3, Protection of Human Rights. SAHRC was trying to learn lessons from its experience in 2020/21, including by attending international conferences with similar organisations that had dealt with these issues.

He said that equality complaints remained the category of complaint which SAHRC received most frequently, followed by service delivery complaints. Programme 4, Monitoring of Human Rights, could not perform optimally at present. One of the challenges was that SAHRC did not have access to disaggregated data. It had been in touch with Statistics South Africa (Stats SA) on that matter, but Stats SA had raised capacity problems. Stats SA had to be properly capacitated to produce disaggregated data, and SAHRC had to be facilitated in accessing and evaluating it once it was produced. In 2020, there had been a greater need for interventions, especially in respect of the protection of human rights, but safety concerns and required COVID-19 precautions had further stretched SAHRC’s already limited resources. SAHRC had been working remotely, which had hurt its performance, limited its interaction with the public, and increased its need for equipment, especially ICT equipment. It had initiated a mental health and wellness programme to help employees deal with the psychological effects of the pandemic.

The civil unrest in July 2021 had left SAHRC, and others, extremely concerned about people’s human rights, especially their rights to freedom and security of person. The unrest had called for SAHRC to review and adjust its strategic objectives, so that it could focus on understanding and addressing the causes of the unrest, in order to better promote and protect human rights in the future. Thus SAHRC was holding public hearings on the unrest. The panel was chaired by Adv Andre Gaum, Commissioner: Basic Education, SAHRC, and also included two other Commissioners, Ms Ntuli and Mr Chris Nissen. It would commence hearing evidence next week. SAHRC was also collaborating with more stakeholders, including institutions like PPSA and civil society organisations.

He said that there had been two vacancies at SAHRC during the year under review, which had put a lot of pressure on the other Commissioners. Thanks to the Committee, two new Commissioners had been appointed in July. Unfortunately, Ms Angie Makwetla, Commissioner: Children’s Rights, SAHRC, was still unwell, and SAHRC would receive an update from her doctors at the end of November. There were also staff vacancies in some key positions, including the head of legal services, the head of information services, and the Eastern Cape provincial manager.

He said that he had to emphasise SAHRC’s concerns and constraints in regard to Programme 4, Monitoring of Human Rights. SAHRC did not have permanent monitoring structures in the provinces – that was “a big gap,” and was critical to SAHRC’s work in its other programmes. Moreover, with SAHRC’s budgetary constraints, it would be difficult for SAHRC to establish such structures. It had raised the issue “at the right level” and hoped that it would be able to establish structures at some point.

The Chairperson told SAHRC that the Committee had scheduled its briefing for the end of the meeting so that it would have plenty of time to present – SAHRC always complained that it was given limited time.

Adv Tseliso Thipanyane, Chief Executive Officer, SAHRC, introduced the delegation from SAHRC. The delegation included SAHRC’s acting CFO – unfortunately, the CFO who had been appointed in March had had to resign after the death of her husband.

The Chairperson conveyed the Committee’s condolences to the former CFO, and led the meeting in observing a moment of silence.

Adv Thipanyane said that he would convey condolences to all SAHRC personnel whose family members had died, and to the families of the SAHRC personnel who had died.

2020/21 annual performance

Adv Thipanyane said that in 2020/21, SAHRC had achieved 23 (64%) of its 36 annual performance targets. This was worse than all four previous financial years – in 2019/20, for example, SAHRC had met 88% of its targets. He agreed with Prof Majola that the primary cause of the underperformance was the COVID-19 pandemic and remote working arrangements.

He said that in Programme 1, Administration, SAHRC had achieved seven (58%) of its 12 targets. The targets not met were:
• Spend 95%-105% against total budget (achieved 90%);
• Implement 80-100% of Risk Management Plan (achieved 72%);
• Resolve 80%-100% of audit findings (achieved 49%);
• Develop SAHRC conditions of service and remuneration; and
• 80%-100% compliance with identified aspects of the comprehensive institutional governance framework.

In Programme 2, Promotion of Human Rights, six (67%) of nine targets had been achieved. Adv Thipanyane highlighted that SAHRC’s media coverage, the vast majority of which had been positive, had reached an estimated eight billion people. The targets not met in Programme 2 were:
• Implement five agreements of cooperation (completed one);
• Complete four quarterly media monitoring reports (completed three); and
• Make website accessible to people with disabilities.

In Programme 3, Protection of Human Rights, SAHRC had achieved three (75%) of its four targets. It failed to meet its target of instituting 20 high court matters – it had only instituted 13. However, Adv Thipanyane added that it had a very high success rate in the cases that it did institute. Under Programme 3, SAHRC had received 9 769 complaints and enquiries and had finalised 7 129 (73%) of them. Of the 5 438 complaints received, 1 560 (29%) came from the Western Cape. 771 (14%) related to equality rights and 704 (13%) related to basic services.

In Programme 4, Monitoring of Human Rights, SAHRC had achieved seven (64%) of its 11 targets. The targets not met were:
• Complete three State of Human Rights research outputs (completed two);
• Develop a children’s rights mapping framework;
• Develop and promote the social media charter; and
• Complete report on the independent monitoring mechanism for the Convention on the Rights of Persons with Disabilities.

The presentation also gave SAHRC’s reasons for non-performance on each indicator, as well as key achievements and activities in each of the four programmes.
           
2020/21 audit and financial performance

Adv Thipanyane said that SAHRC had received another unqualified audit in 2020/21, although there were remaining problems, especially in internal controls, that had been flagged by the Auditor-General and required attention.

In 2020/21, SAHRC had spent R33.4 million on corporate support committed costs, R18.3 million on core operational costs, and R127.6 million on personnel costs – meaning that personnel costs had amounted to 71% of total expenditure. In 2021/22, that had fallen to 66% of expenditure, which still exceeded the Treasury guideline that personnel costs should amount to 60% of the institutional budget. Efforts to reduce the costs of employee compensation were ongoing at SAHRC, but Adv Thipanyane highlighted that further reductions posed a risk to the execution of its service-driven mandate. 

2021/22 performance to date

Adv Thipanyane said that SAHRC’s performance in the first half of 2021/22 had not been bad – at the end of the second quarter, it was behind schedule on only 12 (27%) of 44 indicators. The three human rights programmes were performing well but, as in 2020/21, administration remained a problem – Programme 1 was behind on 6 (46%) of its 13 targets.

Medium-term funding needs

In 2021/22, SAHRC’s budget was R206 million – it had been allocated R195 million by Treasury, but it also had a R10 million surplus from 2019/20 (earmarked for special projects) and expected to earn R1 million in interest income.

SAHRC would need an additional R22.5 million allocation in 2022/23, in order to meet its funding needs in the following areas:
• ICT, digitisation, and accessibility of website (the biggest items, at R10 million);
• National Preventative Mechanism and independent monitoring mechanism;
• Human rights monitoring;
• Expanded monitoring framework for local government; and
• Handover for critical reflection publication.

Discussion
Mr Horn sought to clarify the status of the permanently appointed CFO. If he understood correctly, she was not only temporarily available, but had permanently resigned for personal reasons following her husband’s death. If that was the case, when had she left and what was SAHRC’s plan going forward?

Adv Thipanyane confirmed that the CFO had resigned (see below).  

Mr Horn said that he always asked SAHRC about its strategic or policy choices, and he wanted to do the same in respect of the hearings happening in Mpumalanga. If he understood the media reports correctly, the hearings centred on service delivery, with a particular focus on the failures of local governments to provide access to water. How and when did SAHRC decide to hold provincial hearings of this kind? Unfortunately, a large proportion of the South African population lacked sufficient access to water, one of the basic rights guaranteed by the Constitution. If access to water was a systemic problem nationally, why were the hearings in Mpumalanga specifically? He knew that SAHRC had also published several reports over the years about the failures of local governments to ensure continuous clean water supplies in the Free State, where he was from. It was good to hear that SAHRC had received commitments from some authorities to address these issues (see slide 26). However, should SAHRC not consider dealing with the provision of basic services on a broader, national scale? 

Prof Majola replied that, of course, SAHRC’s choices depended on the circumstances of each case. SAHRC had previously reported that water provision was a national “crisis,” but SAHRC was looking at a variety of issues, not just water provision, in Mpumalanga. Complaints about water provision were only some of the service delivery complaints that SAHRC had received in Mpumalanga – the hearings aimed to investigate several service delivery complaints at once. Also, SAHRC had conducted hearings about water outside Mpumalanga. It had recently released a report on its investigation into water issues in the Hammanskraal area of Tshwane; it had investigated the Vaal River water problems; and it had held hearings in other areas. However, SAHRC had felt that its approach to such hearings were too “piece-meal.” The Mpumalanga hearings were a first, experimental attempt at covering a lot more issues in one set of hearings. If it worked well, SAHRC would like to do the same thing in the Free State, the Western Cape, the Eastern Cape, the Northern Cape, and other provinces. The hearings were not being held in Mpumalanga because SAHRC was only looking at water problems in Mpumalanga or was prioritising Mpumalanga – it was looking at water problems in many other parts of the country, and it continued to engage with government on those problems.

Adv Gaum said that as Members knew, in terms of the SAHRC Act, SAHRC investigated complaints that were brought to its attention, as well as matters which it decided, on its own initiative, were of interest. Sometimes, specific complaints concentrated in specific provinces merited a specific hearing. For example, SAHRC had recently received complaints from students at Stellenbosch University and the University of Cape Town about the universities’ vaccine mandates – those complaints might very well come to a focused hearing in the Western Cape. SAHRC was planning to give a lot of attention to municipalities, and especially dysfunctional municipalities, throughout the country. Members would have seen News24’s Out of Order index, which had done a lot of monitoring in various areas and could help SAHRC work out which areas to focus on. SAHRC had already started focusing on municipal service delivery in Mpumalanga, but it would ultimately have a broader focus on dysfunctional municipalities nationwide.

Dr Newhoudt-Druchen welcomed the newly appointed Commissioners and wished them well in their work. She thanked SAHRC for intervening in one of the schools for the deaf. The protests there had been spreading to other schools. She asked for an update on that intervention.

Adv Gaum replied that he would follow up with the Committee and Ms Newhoudt-Druchen with an update once he had received one from the Gauteng provincial manager. The investigation had stemmed from protests at the Ekurhuleni School for the Deaf in Katlehong about a lack of nutritional meals, a lack of hot water, and overcrowding. On 18 June 2021, SAHRC had issued a statement saying that it was investigating the issue.

Dr Newhoudt-Druchen said that she had recently heard from an outgoing councillor in the Swartland area that matric students had to pay R80 per day to travel to school. The students came from poor rural areas, and this was a lot of money to pay just to obtain access to education or to write one’s matric exams. Could SAHRC look into the issue of scholar transport, especially in the Swartland area?

Adv Gaum asked Ms Newhoudt-Druchen to write to him so that SAHRC could look into the details of the matter. He would also check whether the Western Cape provincial office had received any complaints in that regard. That’s what Members had to understand about SAHRC – it only learnt about specific situations and violations when it received complaints or when they were raised in the media or raised directly by public representatives or others.

Dr Newhoudt-Druchen said that SAHRC had received 221 COVID-19-related complaints. What kinds of things had the complaints been about, and had they been resolved?

Ms Chantal Kisoon, COO, SAHRC, replied that in 2020/21 SAHRC had received 673 COVID-19-related complaints and enquiries, of which 221 had been treated and recorded as complaints. The highest volume of complaints had been reported in the Gauteng provincial office, and reasonably high volumes had been received in the Free State and the North West. For the period ending in September 2021, SAHRC had received about 59 COVID-19-related complaints, with the highest volumes in the Eastern Cape and Free State. Surprisingly, there had been no COVID-19-related complaints in Limpopo during that period.

She said SAHRC’s response in the early stages of the pandemic had been to convene a rapid response centre, staffed by a multidisciplinary task team, which had been referred to internally as the COVID-19 nerve centre. Through the rapid response centre, SAHRC had been able to engage with stakeholders, including leadership in government departments, to resolve reported violations or other concerns raised by members of the public. The most common complaints were mostly about South African nationals who were abroad and unable to return to South Africa, or about the effect of the lockdown on the rights to freedom and security of person. SAHRC had been able to resolve some of those complaints speedily. It had also received some volume of complaints about access to social support, and it had been able to intervene in that regard. Three matters went into litigation and were currently in progress. One matter, the litigation on which was close to resolution, involved the exclusion of a certain category of artists – particularly unregistered artists – from social support. Litigation was in progress in Gauteng and the North West regarding brutality by SAPS and the armed forces during the lockdown.

She said that during the hard lockdown, when schools had been closed, SAHRC had also monitored some 270 schools, testing their compliance with regulations and students’ access to school nutrition programmes. For example, inspections at a school in Pixley ka Seme in the Northern Cape had had immediate effects – SAHRC had found that learners had not had adequate PPE, and the provincial Department of Basic Education had been engaged and remedial action taken quite quickly. SAHRC had also intervened at a strategic level to resolve general concerns around learners’ access to food and water and sanitation – the problems with water and sanitation had been most pronounced in Limpopo and at some schools in the Eastern Cape and Mpumalanga. SAHRC was still giving these matters attention. SAHRC had also engaged with the Minister of Cooperative Governance and Traditional Affairs and the task team which worked on COVID-19 regulations. It had had particularly concerns about the right to housing and about debt collection and credit arrangements, and in that regard it had secured commitments which resulted in, for example, the moratorium on evictions. In general, SAHRC had found the most frequent violations occurring around freedom and security of person during the lockdown. It had also received complaints, as she had mentioned, about social security, and other complaints requesting SAHRC to secure regulatory approval for the use of Ivermectin as a COVID-19 treatment. There had also been quite a lot of complaints about violations of labour-related rights, but many of those had been referred to the Commission for Conciliation, Mediation and Arbitration.

She added that COVID-19 had affected and delayed some of SAHRC’s protection-related work, especially its inspections and on-site visits. It had since been able to catch up on those delays. Similarly, it had faced challenges because access to the courts had been restricted – during the early stages of the lockdown, only urgent matters had been given access. However, SAHRC’s matters were now back on the court roll and proceeding, so it hoped to cover lost ground with respect to litigation.

Dr Newhoudt-Druchen said that she knew that the issue of whistleblower protection was under discussion, and that there was a special whistleblower protection task team. However, she was getting very concerned – recently a whistleblower had been shot, and she had read in the newspapers that whistleblowers were forced to flee the country for their own safety. Could SAHRC provide an update about the kind of policies that were being considered and the discussions that were being had?

Prof Majola replied that he thought the biggest problem was that existing legislation on whistleblowers was incomplete – there were gaps. Thus the NPA said that it was not its mandate to protect whistleblowers unless they were witnesses or defendants in criminal cases, and the law also did not cover people whose whistleblowing did not relate to their area of employment – which was the case for many whistleblowers. In considering this problem, SAHRC had, firstly, been engaging with other national human rights institutions and other authorities from different parts of the world, intending to research and learn from the approaches that others had taken. Secondly, SAHRC was considering litigation. In fact, it had recently decided that it probably should litigate this matter. South Africa could not claim that its Constitution protected everybody’s rights if there were whistleblowers whose rights fell “between the cracks.” SAHRC had also decided to advocate legislative amendments to close the gaps in the law. It had been planning to write to the Speaker, but then had decided that a better strategy would be to engage other stakeholders, rather than pursuing the matter as SAHRC alone. It planned to start with a conference where SAHRC and other organisations could together work out an approach which could then be proposed to the Speaker. It hoped to get support from other organisations, such as the SIU, that dealt with witnesses and whistleblowers. It intended to speak to the Minister and, if possible, draft model legislation which it could present to the Speaker and the Ministry.

Dr Newhoudt-Druchen said that she knew that SAHRC had a limited budget and had been affected by budget cuts, but she wanted an update on any changes that it had made to its ICT systems. Had a Chief Information Officer been appointed yet?

Adv Thipanyane replied that SAHRC had been trying to appoint a Chief Information Officer for two years, but it was struggling to find a suitable candidate. There had been applicants with degrees in business and chartered accounting and so on, but some had not shown up and others had failed the competency test. This was an issue that SAHRC had to address.

The Chairperson said that, at its last meeting with the Committee, SAHRC had complained about organs of state and public institutions which had not been complying with the Promotion of Access to Information Act (PAIA). The Committee had asked SAHRC to provide a list of the names of those entities, so that the Committee could begin raising the matter with the relevant bodies, and even with the Speaker. However, it had never received a list from SAHRC.

Prof Majola replied that he had to “offer a plea of guilty” on SAHRC’s failure to send the list. Since SAHRC had undertaken to send it, the situation had changed entirely. Some of the uncooperative departments had now concluded memoranda of understanding with SAHRC – some, for example, because they had since acquired new, more cooperative ministers. One problem that it had not told the Committee about was located at the municipal level, where there was less data and where municipalities were fundamentally “broken.” However, members of the executive councils (MECs) and national ministers had now been “coming to the party.” For example, that morning, he had spoken with the Premier of the Eastern Cape, and had also spoken to the Eastern Cape MEC. The Eastern Cape had previously been one of the most challenging provinces, but last month SAHRC had met with the provincial government for four or five hours face-to-face in East London. At that meeting, they had managed to agree on several things that had to be done, establishing a structure and so on. The provincial government had told SAHRC that the resistance to PAIA had come from the previous administration and that the current administration had a different attitude. He apologised to the Committee and asked that the door be left open – if situations arose in the future that SAHRC could not deal with, he hoped that it could seek the Committee’s assistance. It had been a difficult process because SAHRC wanted to work with these departments and so was trying to nurture amicable and cooperative relationships, because it got much more “mileage” out of the departments that way. 

Ms Fadlah Adams, Parliamentary Liaison Officer, SAHRC, added that she wanted to clarify that SAHRC had responded to the Committee’s request. She showed Members the email she had sent to Parliament, which included a spreadsheet of the state entities that had been non-responsive or non-compliant with PAIA requests. The same email also contained written responses to other questions Members had asked at the last BRRR meeting, about the donor funding policy and strategy, the Life Esidemeni matter, and the Caster Semenya matter. Last week, SAHRC had submitted another update on Life Esidemeni alongside its annual report.

The Chairperson asked what the impediments were to the implementation of Sections 25 and 28 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

Ms Chohan replied that Section 25 related to the duty of the state to promote equality, and Section 28 related to special measures to promote equality, with specific regard to race, gender, and disability. She had not looked into, and so was not totally sure about, the reasons that those sections had not yet been implemented. However, it struck her that the reasons could be related to the demanding requirements of Section 28(3)(b), which required all public entities to devise action plans and to prioritise anti-discrimination. SAHRC could submit something in writing on those provisions, which might be of assistance to the Committee if it wanted to help implement them.

Adv Gaum said that there was a new PEPUDA Amendment Bill, which might still be at DOJCD or which the Committee might already be aware of. So a new PEPUDA dispensation was being developed and, if he remembered correctly, SAHRC had supported an approach in which entities’ anti-discrimination action plans would instead be incorporated into their strategic plans, operational plans, and annual reports. That might be why the current provisions had not been thoroughly implemented – a slightly different dispensation was being envisaged on these aspects of the legislation.

The Chairperson said that the Committee would appreciate SAHRC’s assistance on PEPUDA, but ultimately he thought that the Committee would need to receive an explanation from the Minister. If DOJCD had foreseen difficulties with the current dispensation and therefore planned to amend PEPUDA, it should have at least advised the Committee of that. Legislation could not just be passed and not implemented – in that case, why had it been passed in the first place?

Audit outcomes

On financial management and legislative compliance, Mr Horn said that, unfortunately, while SAHRC’s overall audit opinion remained the same, the briefing the Committee had received from the Auditor-General the day before had made it clear that SAHRC’s audit performance had actually regressed somewhat. The Auditor-General had flagged problems in SAHRC’s performance reporting – including material misstatements and a lack of useful targets and indicators – both as repeat findings and as areas in which SAHRC had regressed in the year under review. The Auditor-General had also reported that SAHRC lacked proper action plans to address past findings. What steps would SAHRC take to get to an action plan which it could use to address the audit findings of the last two years? It should be mentioned that the Auditor-General had ascribed the deficiencies to vacancies in key management positions.

He said that, similarly, the Auditor-General had explicitly flagged that irregular expenditure incurred in the previous financial year had not been subject to consequence management processes, because it had not been investigated. How did SAHRC plan to investigate irregular expenditure incurred in the last two years? He suggested that the Committee could get SAHRC to commit to target dates by which it would report back to the Committee on these issues. The findings about supply chain management and lack of compliance with competitive procurement processes were also repeat findings.

He said that the Auditor-General’s report on ICT at SAHRC was “very worrying.” There seemed to be a “basic lack of management” around SAHRC’s accounting systems. In his understanding, the Auditor-General had essentially found that SAHRC had not ensured that only fully authorised personnel – those responsible for financial management – had access to the accounting systems. What steps had SAHRC taken to address this finding since it was reported? He hoped that it had been addressed immediately.

The Chairperson said that the difference between SAHRC’s annual report and its actual work was “chalk and cheese” – the report did not reflect the work that the Committee knew SAHRC to be doing. The Auditor-General’s report was “very bad.” And, unfortunately, SAHRC had not made any attempt to pre-empt the Committee’s questions by explaining some of the issues upfront. As Mr Horn had said, the problems went beyond financial irregularities. There were inaccuracies in SAHRC’s performance reporting – SAHRC had lacked supporting documentation to prove that it had done what it said it had done. He would go through various issues raised by the Auditor-General, both financial and non-financial, so that SAHRC could provide a proper response and explanation on each point. He thought that SAHRC had been able to explain the drop in its performance – it had achieved 88% of its performance targets in 2019/20, and only 64% in 2020/21.

He said that SAHRC had incurred R116 000 in fruitless and wasteful expenditure as a result of late submission of value-added tax (VAT) payable to the South African Revenue Service (SARS). He hoped SAHRC could explain that – without an explanation, it was “grossly unacceptable.” It had also incurred R2.39 million in irregular expenditure as a result of non-compliance with policies and procedures.

He said that, as Mr Horn had said, the Auditor-General had noted material misstatements in SAHRC’s performance reporting. This was a repeat finding, implying that SAHRC had done nothing to address the initial finding – from the Committee’s perspective, that was a problem. The Auditor-General had been unable to obtain sufficient audit evidence to support the achievements that SAHRC had reported in seven indicators – that was a substantial increase from 2019/20, when only two indicators had lacked sufficient evidence. That needed an explanation. SAHRC had reported 409 interventions during the year under review. However, because of a lack of accurate and complete records, some of its supporting evidence differed materially from the reported achievements; in other instances, the Auditor-General had been unable to obtain sufficient audit evidence to confirm that the interventions had occurred. The Auditor-General could find sufficient evidence for only two of the three quarterly media reports that SAHRC claimed to have completed; and, due to a lack of accurate and complete records, it could not find sufficient audit evidence that SAHRC had established human rights champions in 286 communities or that it had held 68 celebrations for its 25th anniversary. That needed explanation.

He said that some goods and services with a value of below R500 000 had been procured without obtaining the required price quotation – similar findings had also been made in previous years. Some of the quotations had been awarded to suppliers whose tax matters had not been declared to be in order by SARS. SAHRC had not taken steps to prevent irregular expenditure, as Mr Horn had mentioned. The Auditor-General had been unable to obtain sufficient audit evidence that SAHRC had taken disciplinary steps against officials who were responsible for irregular expenditure – that was also a repeat finding. SAHRC did not have sufficient monitoring controls, and appropriately senior managers had not monitored adherence to the audit plan in a timely manner. All of this required explanation.

The Chairperson said that SAHRC had a risk management committee, chaired by its CFO, but the committee had reportedly been unable to meet its targets due to low responsiveness. That required an explanation. Also, did SAHRC’s audit committee actually sit regularly? These were issues that would give the Committee “serious difficulty” in the absence of proper explanations. He had interacted with some of the Commissioners, and he knew that SAHRC was doing work. But the reports did not reflect this at all, and, in most cases, where SAHRC could not provide evidence that it had achieved a given target, it had not achieved that target.

Proj Majola requested that SAHRC be allowed to submit detailed written responses to the Chairperson’s and Mr Horn’s questions, in addition to the answers it would provide now.

Adv Thipanyane said that he did not think SAHRC had had more than five qualified audits in its 25-year history. It had had several clean audits and had received awards from the Auditor-General for its performance. Like the Committee, SAHRC was concerned about the current situation, and was trying its best to address the problems. It would provide the Committee a complete and detailed account of what had happened and where the problems were. Although he was not making excuses, one major problem had been the lack of stability in the CFO position. On 6 December 2018, the former CFO had resigned, and a replacement had not been found until April 2021. In the interim, for over two years, SAHRC staff members, at level 12, had been acting as CFO. The new CFO, who was a chartered accountant, had then gone on sick leave for almost two months – in addition to her husband dying, she had also contracted COVID-19. When she returned, she had said that she had to resign for personal reasons, to be with her family. Having a permanent CFO was important for SAHRC’s plans to address its audit issues, and it had lost a lot of time in that regard. Another problem was that SAHRC had moved offices in March and April 2020, which was when the audit began. SAHRC had raised this with the Auditor-General – all of its documents had been in storage, and accessing some of them had been a challenge, so unfortunately it had been unable to provide some of the documentation on time. There had certainly been problems with poor recordkeeping and the collation of information – SAHRC was addressing those.

He said that SAHRC had an audit committee, which met regularly and with whose “sterling work” he was very pleased. The audit committee had also been raising many concerns. For example, on performance indicators, the audit committee argued that SAHRC had been “shooting [itself] in the foot,” because it took on too much work and then had to “minimise” on corporate service issues. SAHRC knew that even if it did amazing work, bad audit outcomes created “a cloud over [its] head.”

On consequence management, he said that one of the reasons for the Auditor-General’s finding had been that the processes had been tied up in a loss committee. Treasury had instructed SAHRC to set up a loss committee to establish that there had not been any fraud, and, although the loss committee had been set up, it had not finalised its work by the time of the audit. SAHRC could not really exercise consequence management until a determination had been made about whether there had been fraud. Hopefully, the loss committee would complete its work soon.

He said that one of the problems was that personnel had been working from home – that had meant that officials in the provinces had had serious problems with recordkeeping and with providing the requisite information timeously. Now SAHRC was basically trying to find a good record-keeper. It was also planning to digitise all its records, so that this problem did not reoccur in the future. Treasury had allocated funding, and it would soon issue a tender for the digitisation of its records. SAHRC would provide detailed written responses on all the issues raised by Mr Horn and the Chairperson. However, he thought it important to take into account that SAHRC had really been doing “quite well” in managing its resources over the last 25 years. It was also concerned about the audit findings, and it would definitely do everything possible to address them quickly.

Ms Lori Lynn, Acting CFO, SAHRC, agreed that it would be better for SAHRC to respond in detail in writing. For one example, the fruitless and wasteful expenditure had been incurred because of changes to the VAT Act. SAHRC was generally exempt from VAT, but the Act had been changed to require it to pay VAT on goods or services it received in South Africa from an international company that was not VAT-registered in South Africa, provided it did not use those goods or services to create a saleable product. The vast majority of the relevant goods and services had been software licenses, such as Microsoft licenses. SAHRC had provided its records to SARS and the issue had been resolved. It had been sorted out the moment that SARS had raised it. She thought that many other organisations had also been unaware of the change in the VAT Act, although that was not an excuse. SAHRC’s written response would also explain the finding that some of SAHRC’s suppliers did not have up-to-date tax clearance certificates – in fact, that issue was largely due to SAHRC’s lawyers.

Proj Majola noted that Mr Horn had suggested attaching a timeframe to SAHRC’s plans. What would that timeframe be? Of course, SAHRC would try to act as soon as possible.

The Chairperson replied that he would make some observations before dealing with timeframes. SAHRC had known for some time about the audit report and about the issues that he and Mr Horn had raised. In his view, it was therefore “not good enough” that SAHRC was not prepared to provide answers and instead wanted to respond in writing. The Committee had nominated the Commissioners in the National Assembly, had voted for their appointment, and had had confidence in them on behalf of the public. The Commissioners could not allow SAHRC to “collapse” under them. The Committee wanted SAHRC to receive a clean audit at the end of the current financial year. There should be no more “repeat offending” on any findings. That SAHRC had performed well for the past 25 years did not mean it was performing well now. The Auditor-General had said that it could not even account for SAHRC’s activities. It had been unable to find records proving that SAHRC had done what it claimed to have done – that was generally indicative of “a collapsed organisation.” It was “absolutely unacceptable.” The Commissioners appointed and oversaw the management of the administration, so the Committee was speaking to the Commissioners, not to the SAHRC administration. The Committee wanted SAHRC to receive a clean audit, to address its irregular expenditure and fruitless and wasteful expenditure, and generally to be a “functional” organisation.

He said that other organisations which reported to the Committee had not received the kind of audit report that SAHRC had, despite their own serious funding problems. During the BRRR, the Committee could not argue in Parliament, in front of the people of the country, that SAHRC should be given more money. On what basis should it be given more money, when it did not even keep records? The public would then be entitled to say that SAHRC was “taking them for a ride.” SAHRC had been entrusted to the Commissioners, and if SAHRC collapsed, it would reflect on them. The Commissioners had to “whip [SAHRC’s] administration into line.”

On timeframes and Mr Horn’s suggestion that SAHRC report regularly to the Committee, the Chairperson said that the Committee did not want to establish a culture in which it allowed SAHRC to “explain [itself] out of non-delivery.” However, the Committee would meet with SAHRC early next year, after the recess and the State of the Nation – around March – in order to check how much progress SAHRC had made on the issues that the Committee had identified in the current meeting. Generally, the Committee was now tired of hearing plans when the plans did not correspond to results. And, at the end of the financial year, it wanted to see a clean audit.

Prof Majola said that SAHRC appreciated its responsibility to account to the Committee, and it would take the challenge seriously. It would look into the difficulties and design a plan to solve them, so that by the end of the financial year, in March, it could report that there had been some meaningful progress. Of course, in the current financial year, much of the water was already under the bridge – according to a Chinese saying, one could not step in the same river twice – so he could not guarantee that everything would be fine in the annual reports. But SAHRC would do its best. It would begin by responding in writing to Members’ outstanding questions. He thought that in the future, the Commissioners would have to “roll up [their] sleeves,” find out where the problems were, and deal with them. If there were problems SAHRC could not deal with, he would come to the Committee for assistance. He knew that everybody “look[ed] up to” SAHRC, and it should not “confuse” people about what the correct standards were for such an organisation.

The meeting was adjourned.