The Portfolio Committee on Sports, Arts and Culture convened in a virtual meeting to receive a briefing from the Department of Sport, Arts and Culture (DSAC) and the Performing Arts Centre of the Free State (PACOFS) on the 2020/21 PACOFS annual report.
PACOFS received an unqualified audit with findings in the 2020/21 financial year. The entity also materially underspent on conditional grants by R87 445 891 (2020: R83 769 171) and this was because of projects being on hold due to an investigation that is still ongoing. The entity also incurred irregular expenditure of R903 817 (2020: R387 364) because of non-compliance with supply chain management (SCM) requirements.
According to its performance overview, the Committee heard PACOFS theatre operations were severely constrained during the financial period under review, occasioned initially by the hard lockdown, and later by the restrictions and limitations placed on the performing arts practices and theatre operations. The restrictions hampered it in the achievement of its performance objectives and had a negative impact on its revenue.
The Committee asked for a status report on the allegations regarding the former Chief Executive Officer (CEO), who was involved in corruption, as well as asked for an update on the internal investigations undertaken on the issue. The Committee wanted to know why there was a significant increase in the board and committee fees, as expenses increased from slightly below R370 000 in 2019/20 to R1.5 million in 2020/21. A Committee Member wanted to know how a settlement was reached to put the Artistic Director on suspension, and why it took PACOFS nine months to charge the Artistic Director, knowing his contract expires in January 2022, as the hearings were held on 28 January, two days before his contract came to an end.
PACOFS said the increase in board member fees is in relation to the number of board and committee meetings held. PACOFS said the Artistic Director was not placed on precautionary suspension because the merits of the case differ from the principles which would apply to placing an employee on precautionary suspension. The Artistic Director was charged and taken through a disciplinary process, and there was a guilty verdict on both charges against him. Regarding the matter of the former Chief Executive Officer, PACOFS said in a virtual meeting on 5 July, Council’s response was one of mutual separation and is one of the remedies Council would look into as a solution. The important thing was to stabilise the organisation, have leadership in the organisation, and also look at the risk Council wanted to take in dragging the matter through the courts and spending money.
Chairperson’s opening remarks
The Chairperson welcomed all Members of the Portfolio Committee as well as the delegation from the Performing Arts Centre of the Free State (PACOFS), the Department of Sport, Arts and Culture (DSAC), the Minister of Sports, Arts and Culture, Mr Nathi Mthethwa, and the Deputy Minister of Sports, Arts and Culture, Ms Nocawe Mafu, to the meeting. Parliamentary work is busy, especially because of the State of the Nation Address by the President, and as a result, the Committee pushed to have its own engagements. The Chairperson asked the presenters to go straight to the point of the presentations and asked Committee Members to ask straightforward questions with no preambles because the Committee needed to be seated at the City Hall by 14:00. The Chairperson noticed the South African Women’s soccer team, Banyana Banyana, had lost to Zambia, which is unlike the team, but she noted soccer is unpredictable. She wished the team luck for its next match against Algeria in the African Women’s Cup of Nations (AWCON) qualifiers on Friday. She also wished the national cricket men’s team, the Proteas, good luck in its Test match against New Zealand the following Tuesday.
The Chairperson asked a Member to move for the adoption of the meeting agenda.
Mr T Mhlongo (DA) moved for the adoption of the agenda and it was seconded by Ms R Adams (ANC).
Overview by Department of Sports, Arts and Culture (DSAC)
Dr Stella Khumalo, DDG: Arts, Culture Promotion and Development, introduced the delegation from the Department and handed over to Ms Mandisa Tshikwatamba, DDG: Corporate Governance, to do the presentation.
Ms Tshikwatamba presented the overview of PACOFS performance, which detailed non-financial performance, audit outcomes, financial allocation, oversight activities, and more. According to the performance overview, she said PACOFS achieved 46% of its targets. The reason for poor performance is theatre operations being severely constrained during the financial period under review, occasioned initially by the hard lockdown, and later by the restrictions and limitations placed on the performing arts practices and theatre operations.
PACOFS received an unqualified audit with findings in the 2020/21 financial year. The entity also materially underspent on conditional grants by R87 445 891 (2020: R83 769 171). This was because of projects being on hold due to an investigation that is still ongoing. The entity incurred irregular expenditure of R903 817 (2020: R387 364) because of non-compliance with supply chain management (SCM) requirements. Possible irregular expenditure is disclosed in note 30 relating to the entity not advertising bids for the minimum period of 21 days. This matter is currently subject to further investigation by the entity and National Treasury. The outcome is pending.
According to the challenges faced by the entity, a forensic investigation was commissioned by the previous Council pertaining to complaints lodged against the Artistic Director, as some creatives staged a sit-in demanding the Artistic Director be dismissed from PACOFS, citing the findings of the Morar investigation report.Creatives are also demanding to be involved in decision making at PACOFS in relation to who performs at the institution.
PACOFS 2020/21 Annual Report
Adv Thato Moeeng, Council Chairperson, PACOFS, introduced the delegation from PACOFS and proceeded with the presentation. The presentation detailed the performance overview, predetermined objectives, financial overview, and audit outcomes. According to the performance overview, she said PACOFS theatre operations were severely constrained during the financial period under review, occasioned initially by the hard lockdown, and later by the restrictions and limitations placed on the performing arts practices and theatre operations. The restrictions hampered it in the achievement of its performance objectives and had a negative impact on its revenue. Despite the challenges, it prioritised support to local artists and was pleased to report 95% of the productions staged was presented by artists from the Free State province.
During the hard lockdown in 2020, PACOFS launched a video streaming service called Live@PACOFS for selected artists as part of the economic relief effort for artists. This enabled its artistic performances to be live-streamed via Facebook. A total of 38 videos were selected for streaming on PACOFS social media platform.
There was an improvement in the audit outcome from a qualified audit opinion in the 2019/20 financial year to an unqualified audit opinion in 2020/21.
Mr T Mhlongo (DA) was concerned about the presentation from PACOFS not being detailed enough and said it did not say anything about corruption. He asked for a status report on the allegations of the former CEO being involved in corruption, as well as an update on the internal investigations undertaken on the issue. He wanted to know if there are members of PACOFS who are also serving on other boards or councils in different entities. He also wanted to know if PACOFS has a policy for the protection of whistleblowers, and a policy against sexual harassment. He asked about its reasons for underspending, and the reasons for the irregular expenditure.
Mr Mhlongo asked when the positions of the CEO and the Artistic Director are going to be advertised, and lastly, he wanted to know if there is a good relationship between the Council and staff members, considering Council had more than 22 meetings and only five meetings with staff.
Ms R Adams (ANC) said in the 2018/19 financial year, the infrastructure grant was R7 738, and in the 2020/21 financial year it was R2 667. She asked the Department to clarify the difference in the grant, as she did not understand. She said there was material underspending on conditional grants because of projects being on hold and undergoing investigations. She wanted to know how far the investigations are and said the entity also incurred irregular expenditure because of non-compliance with supply chain management (SCM). She asked the entity to clarify why there has been a significant increase in the board and committee fees, as expenses increased from slightly below R370 000 in 2019/20 to R1.5 million in 2020/21. There was an amount of R3.4 million spent on fruitless, wasteful, and irregular expenditure in 2019/20, and R70.8 million in 2020/21, and asked PACOFS to provide a plan on how it will deal with this balance.
Ms Adams said in November 2021, the Auditor-General SA presented to the Committee and said PACOFS incurred most of the total fruitless and wasteful expenditure because of a payment made to an incorrect supplier. She asked PACOFS to explain how this happened. Lastly, she wanted to know the steps taken against the officials who had incurred the fruitless, wasteful, and irregular expenditure.
Ms V Malomane (ANC) wanted to know the consequence management actions taken on the issues of non-compliance and asked if PACOFS managed to recover some of the funds lost because of irregular, fruitless, and wasteful expenditure.
Mr M Zondi (ANC) said there are some things the entity and the Department need to be commended on. The entity is stable even though there are some critical positions that need to be filled. The stability of the entity is also visible through the improvement of the audit outcomes in the past three years. Credit also needs to be given to the Department because of the support it has given to the entity. The entity and the Department have dealt with the issue of the two vacant critical posts, but the timelines of the finalisation is an issue because these posts will be able to assist the Department to cover lost ground. Lastly, he said the entity needs to improve work on the new programmes, especially because COVID-19 is projected not to be a threat in the next few months.
Ms V Van Dyk (DA) asked for a report on the timeline of events that led to the decision of selling state assets. Not enough information was provided to show the sale of these assets was legal. She wanted to know if the abolishment of PACOFS SCM structure was approved by Treasury or Council; wanted to know about the qualifications and experience of the newly appointed SCM Internal Control Officer; and if it has any experience in supply chain. She also wanted to know about the transfer of supply chain duties to the person from Bloemfontein Museum, and if the person has any experience in supply chain. The person has taken over the duties of a supply chain manager while the supply chain manager is also there and not performing its duties, and both are earning salaries. The Department needs to launch an investigation into the supply chain management of PACOFS because it is a key point for corruption.
Regarding the disciplinary proceedings against the Artistic Director and former CEO, the recommendations of the Morar and Bonakude report implicated the executives of serious allegations of fraud and corruption which could lead to possible criminal charges. She wanted to know how a settlement was reached to put the Artistic Director on suspension, and if PACOFS obtained an external legal opinion or if it made the decisions itself. She wanted to know why it took PACOFS nine months to charge Mr Xaba, knowing his contract expires in January 2022, as the hearings were held on 28 January, two days before his contract came to an end. She wanted to know how the Artistic Director being found guilty affects the other sexual harassment case and said it has been three years since the release of the Bonakude report. She wanted to know why there has not been any action taken against Mr Sello Senyane who was also implicated in the report of the former CEO.
She said 35 contracts of employees who had been employed since 1991 and 1994 have been terminated, and new contracts were given to new workers. The previous employees were not allowed to reapply, and the matter has been escalated to the Council for Conciliation, Mediation, and Arbitration (CCMA). She asked PACOFS to explain this situation. Lastly, she wanted to know why no disciplinary action was taken against officials who were involved in incurring irregular, fruitless, and wasteful expenditure.
Mr D Joseph (DA) asked for a breakdown of the Baseline Allocation and what it entails. The entity does not understand when a person is a “Black Male” and a “Black African”, as there is confusion between the two in slide 11 and slide 15. He asked for the findings of the Morar and Bonakude reports, and the implementation plan for the recommendations. He wanted to know why and how an incorrect supplier was in the database for payment and how the company was paid incorrectly. He also wanted to know if the money for the incorrect payment was returned. Lastly, he asked for a full report on the case of the CEO and CFO.
Ms M Khawula (EFF) wanted to know if the suspended Artistic Director is still receiving a salary because some officials are not afraid to make mistakes or commit errors, because these individuals know, even if they are suspended, they will still get paid salaries. The harassment issues have been reoccurring for several years and the investigations rarely produce reports of who was arrested or removed from positions. According to the audit reports, she said she suspects auditors are bribed into providing favourable reports because there is money that is unaccounted for and money that has not been returned, yet the audit outcomes do not reflect this.
Response by PACOFS
Regarding the increase in the Board members' fees, Adv Moeeng said the Council is relatively new, as it has been working for 13 to 14 months. It had its first council meeting in its first month of being appointed and before it had its second meeting, it was faced with a stay-in which lasted for 40 days. During this time, council members had to try and resolve issues and engage with stakeholders to stabilise the institution, and there were many committee meetings being held. After the stay-in, Council noticed employees who face disciplinary action tend to dispute the disciplinary process and take the issues to the CCMA, leading to the entity having to prepare for legal battles. She said there was another incident towards the end of the year where there were people who tried to enter the building and ended up destroying the reception door. Council and committee members had to ensure stability in the entity. At the time when the Department was in the process of assisting PACOFS with the appointment of the Acting CEO, it was also Council’s responsibility to engage with staff, and when the Acting CEO was appointed, the role of engaging staff and carrying out council resolutions was handed over. Life has not been easy since the appointment of the Acting CEO, as the Acting CEO, Chairperson, and other management staff have been receiving death threats for all the misconduct cases and CCMA cases it was dealing with. She said the increase in board member fees is relative to the number of board and committee meetings held.
Ms Mpelegeng Kganedi, Council member, PACOFS, said the Artistic Director, Mr Moeketsi Xaba, was not placed on precautionary suspension because the merits of the case differ from the principles which would apply to placing an employee on precautionary suspension. One of the main principles is time and space to investigate the wrongdoing and to protect the potential witnesses would be required. There were complexities in Mr Xaba’s matter, such as there was already an investigation report concluded, and there were already attempts by the previous board to resolve the matter and have him facing disciplinary action. A virtual meeting was held on 5 July, and it reported the ally it had relied on in the department of the initial holder’s office, Adv Mehlo, unfortunately passed away. He had already been given a notice of the intention to suspend and he responded. The notice of the intention to suspend and his response was sent to the State Attorney for advice on how to proceed. The State Attorney took three to four months to respond, which caused the delay in the disciplinary action, and eventually, when it received the opinion, it had to go to the market to find labour attorney specialists to assist with proceeding with the matter. When attorneys were finally procured, Mr Xaba was charged and taken through a disciplinary process, and there was a guilty verdict on both charges placed against him.
Regarding the matter of the former CEO, Ms Kganedi said in the same virtual meeting of 5 July, Council’s response is one of the remedies Council would look into as a solution. The most important thing was to stabilise the organisation and to have leadership in the organisation, and to also look at the risk Council wanted to take in dragging the matter through the courts and spending money. The Portfolio Committee is well aware of all the events which took place delaying the case from moving forward, and eventually, when the process was stabilised to be able to go through the disciplinary process, the Commissioner at the time requested the matter go for mediation and conciliation. Council therefore felt a mutual separation agreement was the best option at the time, looking at the time remaining on the existing contract, as well as the lengthy litigation looming.
A mutual separation agreement is allowable and permissible in law and the benefit to it, in this case, is because it was made an order of the court by the CCMA, there is nothing more to it. The employee waives its rights of approaching any courts, or tribunals, or the CCMA regarding the alleged impropriety which stemmed from the employer-employee relationship. At the time, Council considered the benefits would outweigh the drawn out process and the costs which would have been incurred by PACOFS. Ms Van Dyk rightfully mentioned it is state funds that are used in such court cases, but because a mutual agreement is confidential and in this case, it was made an order of the CCMA, the terms provided in there are permissible by law and cannot be divulged. There are processes in which one can approach a court to find out about the amounts, but if the amount is disclosed on a public platform, PACOFS would be found in contempt of court.
Regarding the Nicky Hassett case, Ms Kganedi said the merits of each case are different and each case is dealt with on its own complexities and merits at the time. Ms Nicky Hassett was taken through a disciplinary process and at the end of the disciplinary process, a sanction was given and she was dismissed, and naturally, she has a right to approach any tribunal, CCMA, or Labour Court if there is any dispute. PACOFS does not at any given point hire employees to take employees to court, but it is always responding to matters where employees have taken Council to court. In response to this, PACOFS filed an opposing affidavit, but there was a technical glitch in the system, as Council had not known when the matter was enrolled at CCMA despite the Acting CEO checking on a regular basis and updated PACOFS contact details at CCMA. It only found out about the matter already being in court on the morning of the court date and sent two officials who were not briefed and did not know the intricate details of the case. This was because it did not want to be a no-show, as it was not granted a postponement.
The award given to Ms Hassett was a default judgement. Council took the matter on review and if the outcome of the review is the employer must pay the amount, it will be a court order and PACOFS will have no choice but to honour it. When a default order is given, in the principles and premise of protecting public funds, it has a responsibility to show the public it went to court to defend the case because it believes in the integrity of the process it has taken the employee through.
Mr Ashley Latchu, Council Member, PACOFS, said the irregular expenditures were mainly because of irregular appointments of legal constituents, and based on this, Council has resolved to have a panel of legal experts to close this gap going forward. According to the payment to an incorrect supplier, it is still trying to recover the money and has appointed lawyers to assist in getting the money returned to the entity. It did try to negotiate with the supplier, but it was not honoured which is why it is venturing into the legal approach. Regarding the alleged illegal sale of assets, he said the sale was legal as the trucks were not being used anymore, and were almost fully depreciated.
Ms Sharon Snell, Acting CEO, PACOFS, said the policies to protect whistle-blowers and policies against sexual harassment are in place at PACOFS and have been filed with the Portfolio Committee following comments and questions received earlier in the financial year. Regarding the investigations relating to non-compliance with SCM, processes on irregular expenditure, as well as fruitless and wasteful expenditure, she said all the fruitless and wasteful expenditure identified through the normal processes and disclosed by the organisation are being followed through. An appointment of an attorney’s firm has been made and to save costs, PACOFS has entered into an agreement with the attorney’s firm whereby it will pursue fruitless and wasteful expenditure matters of the organisation in court and will also make an assessment of the matters, and if it would be successful in a civil claim. The assessment will be made in every case of fruitless and wasteful expenditure, including the nature of the defendant if the person is traceable, it can get a judgement against the person, the merits of the matter against the person looking at the individual circumstances, and then report on it once the assessment is done. These are legitimate legal practices that need to be followed to recover any fruitless and wasteful expenditure.
Ms Snell said that another aspect that needs to be investigated is internal disciplinary processes because in most instances of fruitless and wasteful expenditure, the employees are no longer working at PACOFS. As such, the avenues which become available would be to assess if the entity would be successful in a civil matter. According to other areas of non-compliance in SCM processes, she said it had a report of the former CEO and Artistic Director, and further reports will follow as it concludes matters. Council has committed to taking action against all members who had been implicated in any of the forensic reports or any of the other ongoing reports received. The priority matters concluded have been reported on. It appointed a standing chairperson for disciplinary enquiries and is pursuing all these matters.
Regarding the Bonakude report, she said it provided a detailed report to the Portfolio Committee in the prior meeting, but most of the staff members implicated in the report have resigned and are no longer with the organisation. This is a good thing because it shows the organisation is slowly taking action against all people, and those persons who feel they will be under scrutiny choose the easy pathway and resign. If there are any financial implications in the exit, such as fruitless and wasteful expenditure or irregular expenditure, it will be pursued by civil means because disciplinary means are no longer available for the organisation.
Regarding payment of the wrong supplier, she said the background to the matter is, both suppliers at the time were legitimately on the PACOFS payment list because the entity had done business with both. The error which occurred was a computer error in choosing the supplier to be paid because the names are very similar. It is definitely negligent conduct because proper checks and balances should have been done. The money should have gone to the one supplier, but unfortunately it went to the other supplier who was already on the PACOFS payment list and was receiving payments from PACOFS for rendering other services. When this happened, an agreement had been reached with the incorrect supplier, which was paid to refund PACOFS, but the supplier has not held his end of the agreement, resulting in PACOFS having to institute a civil claim against the supplier.
Ms Snell said consequence management at PACOFS is a very formalised process. It is done in a structured manner where each item that requires consequence management according to PACOFS reporting structures, such as the Public Finance Management Act (PFMA), is identified, reported, and audited. It is currently chasing up on all the items which require consequence management until it is concluded.
According to the stability of the organisation, she said although there have been pockets of calm within PACOFS, enabling it to pursue its operational requirements, there have been issues that caused destabilisation in the organisation throughout the year while the current Acting CEO was in position. It appreciates the stability there is, but PACOFS is not out of the woods yet, as there are still some critical issues to be dealt with, and one of the issues is the filling of key positions such as the Artistic Director and the CEO position. The advert has already been issued and is widely published. It closes on the 20 February, and due to the nature of these positions, is being handled by the Council of PACOFS.
Ms Snell said for most of this year, except for one item which could not be showcased, the theatre has been producing all the shows according to the approved programme by Council, and the one which could not go ahead was because of a COVID-19 issue and had to be cancelled. There is a revised strategy that was promoted as a draft which PACOFS is working on, following a strategic session held last year. Some of those are being implemented to ensure the entity is delivering on its core mandate to artists.
PACOFS SCM structure has not been abolished and is in place. The staff member in charge of the assets auction, although she is a junior staff member, is a registered chartered accountant and was qualified to do the job.
The staff member in supply chain is not from the Bloemfontein Museum, she is a qualified PACOFS staff member who is currently acting as the supply chain manager, who has conducted herself in an exemplary manner in her role. The reason she is acting in this position is, the current supply chain manager is facing disciplinary processes for alleged irregularities relating to SCM, but unfortunately the disciplinary process, although it commenced last year, has still not begun because of certain applications being made by the employee.
Regarding the contracts of the 35 employees, she said there are actually 25 employees, and the contracts have not been terminated, but it wanted the contracts to be permanent because the employees have worked at PACOFS for many years in a casual capacity as waitresses, barmen, and so forth. The employees do have contracts, but the contracts speak to the casual nature of the employment because the contract requires the employees to be available when there are shows. The employees are not full-time employees because the employees are not required to work full-time. The issue was raised at the CCMA, and PACOFS is dealing with it through the proper channels, as the entity believes it acted correctly. “Black Male” refers to the all-encompassing phrase to provide for African, Coloured, and Indian male categories in the country.
Regarding the sexual harassment case, there was only one sexual harassment matter taken over at the beginning of the financial year and the details have been reported on and provided. An independent investigator was appointed from the Department, and although the person passed on due to COVID-19, the Department is still assisting with the investigation. The staff member involved in the sexual harassment complaint has failed to file process in accordance with PACOFS sexual harassment policy. The reason this was provided is the staff member does not want to contradict what she has reported to the police. She said it is difficult to take the matter forward if there is no physical complaint for investigation. Other means have been provided, the member was given an opportunity for the statement to be taken on her behalf and for her to subject herself to an interview, but this was also rejected. The staff member approached the CCMA to look into the matter, but it seems the matter is not continuing and the member is unhappy with the CCMA because of the way the matter was resolved.
The staff member asked to be protected internally and to change her reporting line so she does not have to report to the person she complained about. PACOFS agreed and changed her reporting line. She is also under investigation for a disciplinary process preceding the current financial year. She had also asked for charges against her to be removed on the basis she lodged a sexual harassment grievance, and PACOFS declined and requested this should be pursued separately, as it is an important matter for proper consequence management to take place. There is an independent chairperson who is also a CCMA Commissioner who has been appointed to ensure all proper processes will be followed in the internal disciplinary matter and the sexual harassment case, which will be dealt with separately.
Regarding the financial overview, the budgeted income agreed according to the Annual Performance Plan (APP) for 2020/21 was R61 million and the actual income received was R51 million. The variance was R9.7 million and the reason for it is, it was mostly online in this financial year and not physically opened to receiving income from operational activities. It budgeted for an expenditure amount of R58 million, and the actual expenditure was R48 million, with a variance of R10 million. It underspent by R17.3 million.
Ms Mbali Tsotetsi, Deputy Business Executive, Auditor-General South Africa, said the remark made about auditors being bribed to show favourable audits for the state entities is very disturbing. It is not the first time this remark has been made against the auditors, as in December it addressed the matter with the Chairperson of the Portfolio Committee because there was an email circulating about the AGSA office colluding with the Executive. The AG Office refutes such unfair and inappropriate remarks being made regarding its work.
It exercises its mandate and takes its work very seriously. It adheres to all the ethical principles governing its work, and its work is done in accordance with international auditing standards. The work done on PACOFS was also done according to the same principles and standards, and AGSA has provided a full response regarding the allegations and took it into consideration when it was doing the PACOFS audit for 2020/21. The detailed response is available and can be provided to all members of the Portfolio Committee so the notion of auditors colluding with executives doing their work can be removed.
The Chairperson agreed Ms Tsotetsi can send the response from AGSA to the Committee. It is unfortunate when a Member of the Portfolio Committee makes a claim or an allegation, it seems it is the governing opinion of the Portfolio Committee, even when the Member made the allegation individually.
Response by DSAC
Ms Tshikwatamba said board members are also members of other boards and councils. It is something the Department is always conscious of when putting forward representatives to become board members. Even though this is the case, it does not look at total elimination of a possibility where certain expertise is needed in the pool of candidates received. It is something it appreciates to a limited scale, there being a learning exchange between council members, where a council member could be serving in a Council of another related entity.
Mr Sibusiso Tsanyane, Deputy Director: Entity Oversight and Interface, said there is nothing that prevents members from serving in more than one board or Council, both in the Department and elsewhere. The Department has made a rule to say it is going to limit the number of councils where board members serve to guard the performance and effectiveness of the members. In PACOFS, there are four members serving in another public entity that reports to the Department.
Dr N Khumalo (DA) wanted to know which additional support has been given to the staff member who opened a sexual harassment case, besides the PACOFS policy, considering it is not easy to lay a complaint and some people end up dropping the cases.
Mr Mhlongo said the Acting CEO answered all the questions and it shows she knows what is going on in the entity, but he wanted to know why the information was not included in the presentation because the details are lacking in the presentation. He said the Committee recommended the board or council members must not serve more than two committees, and it was approved. He wanted to know why this was not implemented. He said he understands there are policies at PACOFS, but there is poor implementation of those policies, including consequence management and the support given to the person who reported sexual harassment. He said there is an issue of employment costs, a grant from the Department is not enough, and he asked Council to provide a strategy it will use to survive the current financial year.
Ms Van Dyk wanted to know why the former CEO was paid millions of rands in the settlement and why those millions were not used in the court case to show employees PACOFS is serious about addressing the recommendations. She said it seems the disciplinary actions taken are selective. It has been three years since the Bonakude report, and the CFO was implicated in it, yet there is still no action taken against him. Lastly, she said the presiding officers sanctioned the dismissal of Mr Xaba on 4 February, which was four days after his contract ended, and wanted to know if this created an opportunity for him to approach the CCMA for unfair dismissal.
Mr B Madlingozi (EFF) said it sounds like the person who reported the sexual harassment case was victimised by both PACOFS and the CCMA because the matter was not handled carefully as it should have been. He wanted to know which measures were put in place to protect the victim to ensure this never happens again.
Response by PACOFS
Ms Kganedi said in November last year, at the launch of the 16 Days of Activism, the Director-General of DASC, Mr Vusumuzi Mkhize, said in his opening, “a country which devastates and devours its women has no place in the world because women’s rights are human rights and its violation is a violation against human rights.”
This statement is one PACOFS Council believes in. Even though there are processes guided by policies and laws, there is also the human spirit where one sympathises when dealing with an issue of this magnitude. It mandated the Acting CEO to contact the Department through its partnership with the United Nations Development Programme (UNDP). There is a Unit called the UN Women, where there are experts in dealing with and providing support to women’s issues and providing women in the workplace support. The process is still in its early stages because the mandate to the Acting CEO was only given recently. The assistance of the shareholders will help to work out programmes and support all women at PACOFS, and not only the one person who reported a sexual harassment case.
Ms Snell said the staff member in charge of the assets auction, although she is a junior staff member is a registered chartered accountant and was qualified to do the job. Regarding the lack of details in the presentation, she said she was not part of the team who created the presentation, so she cannot comment. She suspects the presentation was created to deal with the burning issues and noted it would have been difficult to put every matter PACOFS is investigating into a slide show. It will ensure additional information is provided to the Committee prior to the meeting next time. According to the employment grants, PACOFS has currently identified no budget issues. According to the Strategy for Implementation, Council has a draft strategy and it identified the capacity needs of the organisation which must be implemented. This has been taken to account in the APP requirements for the 2022/23 financial year.
Mr Madlingozi said he still wanted to know why the victim was treated in the manner she was treated and asked what actually happened at the CCMA to make her feel she was not being assisted.
Mr Mhlongo also wanted to know what support was given to the victim by PACOFS as he was not satisfied with the answer given by Ms Kganedi. He asked for the information to be provided in writing.
Ms Kganedi said the statement she read from the DG was not meant to put a bandage over the wound, but to emphasise PACOFS does take the matter seriously and is bound by the law to protect employees at PACOFS. The entity currently does not have adequate support as it does not have a fully functional Human Resource Unit, so the entity does not have the internal resources to support the victim.
According to the processes, it was explained to her by the late Adv Mehlo, there is a process required to invoke an investigation, and in the policy, it says the alleged victim must file a grievance. There are specific rules for identifying a complaint and a grievance, and the CCMA found the same problem, as there is a process that has not been followed by the alleged victim where the complaint has not been filed as a grievance. When the alleged victim was asked to file the complaint in the form of a grievance, she refused because she did not want to contradict the statement she made to the police, which she has a right to do. This does not mean PACOFS will leave the matter as is, but PACOFS will continue to investigate the matter and provide support to the alleged victim.
Minister’s concluding remarks
The Minister of Sports, Arts and Culture said the concerns of the Members of the Portfolio Committee have been there for a long time regarding board members serving on multiple boards. There is no law preventing any individual from participating on more than one board, and until there is a law like this, things will not change. People need to apply for board and council positions if people wish to be considered for those positions because if few people apply and few of them qualify, there will be few people who are given these roles.
The Department does have facilities that can be used to support victims of sexual harassment in the workplace, such as the Silapha Group which offers counselling and wellness interventions and other matters. He was not pleased with what is happening on the Board, as it is facing death threats and the threats went as far as targeting family members. The Board is working and there have been some improvements. The organisation is on the path of stabilisation. He cautioned against going into the details of HR matters. He is happy the Portfolio Committee engaged the Department and the entity on pertinent issues and corrected it where it was lacking, but also listened and encouraged it where it was doing right.
The Chairperson thanked the Minister, Deputy Minister, DG, and DDGs, as well as PACOFS, for updating the Committee on its annual report for 2020/21. The Committee should not forget it had another serious case of Gender-Based Violence (GBV) and had proposed to the Department the athletes who were allegedly raped and the entities responsible for those athletes should meet and discuss how the alleged victims can be supported. The Department had agreed.
The meeting was adjourned.
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