Justice & Correctional Services Portfolio Audit Outcomes; Legal Aid SA & Information Regulator Annual Report 2021/22

Meeting report

The Chairperson welcomed everyone to the meeting. The Members had a short constituency period where the Members interacted with their constituents. He noted that this term was going to be very hectic. The Committee would need to deal with the Annual Performance Reports followed by two bills, possibly three. He was not sure about the third one. There was the Cannabis Bill that needed to be finalised. Then the Committee needed to start processing the Hate Crime Hate Speech Bill. If possible, the Committee would also need to finalise the Correctional Services Amendment Bill and the JICS Bill. This was going to be a very hectic period from now until the end of the term. He hoped that the Members had all rested in preparation for the term. He knew that Adv Breytenbach had not rested. They had been at the JSC until Monday. The Committee had to make sure that it finalised everything between now and the end of the year.

The Chairperson welcomed the Office of the Audit-General (AGSA), who would brief the Committee on the status of the financial reports and audit reports. He noted that the presentations had been circulated and Members had gone through them.

Briefing by the AGSA on the Budgetary Review and Recommendations Report of the Department of Correctional Services

Ms Mbali Tsotetsi, Deputy Business Unit Leader, AGSA, briefed the Committee on the Budgetary Review and Recommendations Report (BRRR) of the Department of Correctional Services (DCS). The presentation discussed the audit findings, performance planning, performance targets achieved, material irregularities identified, and financial management. The DCS received an unqualified audit with findings for the 2021/22 financial year. The presentation noted that DCS achieved 80% of its targets. Key targets not achieved included the percentage of confirmed unnatural deaths in correctional facilities and the percentage of overcrowding in correctional facilities in excess of approved bed space capacity. The presentation noted that the quality of financial reporting in DCS was satisfactory. The Department had sound financial management controls which prevented material misstatements from occurring.

Compliance with key legislation

The most common areas of non-compliance:

• Procurement and contract management.

• Prevention of irregular, unauthorised, fruitless, and wasteful expenditure.

• Effecting consequences.

• Payment not made in 30 days.

Recommendations

• The Committee should obtain feedback on the implementation of the audit action plan to ensure clean administration is achieved by the Department.

• The accounting officer should report to the Committee on progress made to ensure investigations are conducted on cases of irregular and fruitless and wasteful expenditure.

• The accounting officer to report on the filling of key vacancies.

(See Presentation)

Discussion

Mr W Horn (DA) said that in preparing for this meeting he had looked back at the AGSA’s report from the previous year. There were two issues he wanted to get feedback on to complete the picture. Last year, and in previous years, one of the adverse findings made by the AG was the manner in which DCS went about establishing the lock-up number of detainees on a daily basis and integrating those figures. In preceding years, the AG deemed that to be unreliable. It was a basis on which there was consequently a qualification. He did not see any reference to that in this year’s report. Could the Committee be appraised as to whether that was still a persisting issue? If not, could the Committee then get the assurance that that had been solved to the satisfaction of the AGSA? The other aspect that was in the past part of the comments of the AG was the lack of a fully functional internal audit unit and an audit committee. Could the AG brief the Committee on whether that recurring issue had been solved to its satisfaction in the run up to the preparation of this year’s report?

Dr W Newhoudt-Druchen (ANC) said that she had two questions for the AGSA. She discussed overcrowding in Correctional centres and there not being enough bed space. That was a recurring problem. The AGSA said it was an unqualified audit with findings and overcrowding was a big problem. Did that then mean that the Department’s audit result will always be unqualified because overcrowding was a persistent problem year in and year out? She discussed irregular expenditure and the investigations that had not yet commenced. Would the AGSA continue monitoring the progress of investigations until all the irregular expenditure could be accounted for?

Mr J Engelbrecht (DA) said that he wanted to get clarity on the R5.8 billion that was not dealt with according to the report that was received. Was that amount for all the previous years combined, as well as this year? He discussed the irregular and fruitless and wasteful expenditure. He noted the irregular expenditure of R954 million and the fruitless expenditure of R75 million. Was that specifically from this financial year?

Ms Y Yako (EFF) said that it was very worrisome for the Department to have an unqualified report with findings. What was more concerning is the backlog of irregular expenditure which had not been addressed. When the AGSA engaged with the Department on the backlog of the R5.8 billion that had been lingering in irregular expenditure, knowing that they worked with only a small percentage of that, what was the plan when the Department came to the AGSA to account for this? What was the plan for the Department to deal with that R5 billion because now there was an extra R954 million which needed to be dealt with? That took the total to almost R6 billion. There could not be a Department that was consistent in having irregular expenditure because it meant that was the norm to just deviate from everything and put it under irregular expenditure when it did not want to deal with the systematic use of systems. There were procurement systems in place for this reason and the Department should always adhere to them if it was a Department that was above board. What was actually happening in this Department? Was it just a source for some to take monies out and just put it under irregular expenditure? It made the Members worry about the quality of the leadership that was in the Department. What engagement had the AGSA done in particular when it came to consequence management? Did the Department revert back to the AGSA? What were the timelines in which the Department was supposed to revert back to the AGSA with regards to constant reports to say what it had done addressing the irregular expenditure, addressing the consequence management for the wasteful expenditure?

Dr Newhoudt-Druchen asked if the Department needed to report back by 30 September. Had the Department already submitted that report on 30 September? If not, why not?

Ms Tsotetsi responded to the question on lock-up numbers and the reliability thereof. This matter did not result in a qualification in the prior year. It was not even reported as part of the issues under performance information. That was the particular clarity she could highlight on this matter. The AGSA did not have any findings in the prior year on the issue of lock-up numbers.

The AGSA confirmed that the Department had an internal audit that was fully functional as well as an audit committee. This Committee could engage the audit committee on the work that it had done for the year under review. The audit committee was part of the accountability ecosystem, and it had a legislated function in terms of the PFMA. The audit committee was in place, and it was functional.

She discussed the issue of overcrowding. It was a recurring matter that the Department had been struggling to address, the issue of overcrowding in correctional facilities. She noted that in terms of the report, it did not really affect the unqualified with findings audit because it would only be reported if the AG had challenges in terms of verifying the number that the Department was reporting in the Annual Report. This year, the AG did not have any challenges around the reliability of the numbers that the Department reported. In the prior years, there was an issue with the numbers that the Department was reporting. The AG had reported on a finding saying that the numbers were not reliable but that had since been resolved, starting from last year.

She discussed consequence management. The AG did engage with the Department because this was one of the critical matters that the AG was reporting on the Department. The AG had been assured by the accounting officer that they had plans in place to investigate the backlog in terms of instances of irregular expenditure. The AG noted that as it was auditing, the Department had a number of investigations that were still in progress. As long as they were still in progress it did not then deal with the issue of the backlog of irregular expenditure because it could only be resolved once the Department had done all of the investigations, done consequence management, and submitted those instances to National Treasury for condonement. Because they were still in progress, the Department was not able to deal with the backlog of R5.8 billion. She confirmed that the R5.8 billion was in relation to prior years. It was an accumulative amount relating to prior years, excluding the R954 million for the current year under review. She responded to the question of the fruitless and irregular expenditure. She confirmed that the fruitless expenditure amount of R75 million and irregular expenditure amount of R954 million were for the current financial year. Those were the new amounts incurred for the 2021/22 financial year. She noted that the Commissioner indicated that there was a plan to address the backlog of irregular expenditure investigations. Based on the audit, the AG identified some instances that were not yet started in terms of investigation. There were some that were already in progress relating to the prior years. She noted that the accounting officer indicated that he would report back to the investigation relating to the material irregularity by 30 September 2022. The AG had not yet received the report from the accounting officer. The AG would follow up on that particular report to see whether it had been finalised and what were the next steps the accounting officer was going to implement to address the material irregularity as indicated in his response.

The Chairperson thanked Ms Tsotetsi for her response. He asked the Members to move on to the next presentation which would deal with the Department of Justice. The Members would have a second bite when the Department appeared before the Committee to ask some of the questions that it needed to answer in relation to what had been presented.

The Chairperson congratulated Mr Thobakgale on being appointed as the National Commissioner. He was previously the Acting Commissioner. He welcomed him to the Committee. The Committee pledged to work closely with him until the end of its term in 2024. The Committee hoped it would continue to have a fruitful engagement with him and his team, as the Committee continued to do its own oversight over the Department.

Mr Makgothi Thobakgale, National Commissioner, DCS, thanked the Chairperson and the Members for the well wishes. He pledged that the Department would do the work that it was supposed to do to ensure that when it appeared before the Committee to account that it actually had all the answers that the Committee wanted it to provide.

The Chairperson asked for the Committee to move on to the second presentation.

Briefing by the Auditor-General of South Africa on 2021-22 Audit outcomes for the Justice and Constitutional Development Portfolio and Office of the Chief Justice

Ms Aphendule Mantiyane, Senior Manager, AGSA, briefed the Committee on the 2021-22 Audit outcomes for the Justice and Constitutional Development Portfolio and Office of the Chief justice. Legal Aid SA, Public Protector South Africa, and Special Investigations Unit received a clean audit opinion. The Office of the Chief Justice and South African Human Rights Commission received an unqualified audit with findings. The Department of Justice and Constitutional Development received a qualified audit with findings. The presentation discussed financial management and compliance, portfolio performance and material irregularities.

Performance against target

Achievement of annual targets as reported in Annual Performance Report (all indicators) – 2021/22:

• The Department of Justice and Constitutional Development met 79% of its annual targets.

• The SIU met 88% of its annual targets.

• The SAHRC met 61% of its annual targets.

• The LASA met 73% of its annual targets.

• The OCJ met 84% of its annual targets

• The PPSA met 86% of its annual targets.

Implementation of material irregularity process

The material irregularity (MI) process was implemented at the following auditees:

• Department of Justice and Constitutional Development (DoJ&CD)

• Legal Aid SA (LASA)

• South African Human Rights Commission (SAHRC)

No MI’s were identified at these auditees during the 2021-22 audit.

Overall root causes of significant findings in portfolio

• Lack of appropriate competencies and key vacancies in the finance unit to ensure that accounting

standards are applied appropriately.

• Capacity constraints within the strategic support & governance unit evidenced by a lack of available

supporting evidence and reviews of reported performance achievements.

• Inadequate monitoring of the action plan to address assurance providers’ findings, especially on

compliance with SCM legislation.

• The instability in the CFO position during the year led to an increase in non-compliance areas in SCM and expenditure management.

Key recommendations to and commitments by accounting officers and authorities

• The Department should develop a tool to report performance information of the portfolio against the MTSF indicators and targets, and oversight bodies should monitor the progress of the performance outcomes against the MTSF targets.

• Design systems and processes to collect and report credible performance information.

• The Department should maintain proper and timely record-keeping to ensure that complete, relevant, and accurate information is accessible and available to support performance reporting. Sound record-keeping will also enable senior management to hold staff accountable for their actions.

(See Presentation)

Discussion

Mr Horn said that he had two clarity-seeking questions. He noted that, as the AG had indicated, some of the issues regarding financial management would hopefully be arrested and reversed given the fact that there was now a CFO. Last year’s presentation mentioned the specific consequences of poor or a lack of proper contract management on the part of the Department of Justice. He did not know whether the AG could share with the Committee whether it interrogated this issue this year and what the outcome was. His second question was about irregular expenditure. In the past, the Committee had unfortunately been faced with a situation that the AG came at the beginning of the BRRR engagements, to present like today that there was just short of R1 billion of irregular expenditure on the part of the Department of Justice and it had to do with security contracts. Then when the Department came it sometimes, not always, said that the context was that it was a recurrence of payments in respect of awards made in prior fiscal years. Therefore, there were no mitigating circumstances in that it was still investigating this, as a consequence, it was under an obligation to pay and as a consequence, the Committee should not see it as a regression in the way awards were made and a regression in respect of irregular expenditure. He wanted clarity around whether this was then a new form of irregular expenditure. In the previous two financial years, there were R573 million and R414 million respectively in irregular expenditure. He asked that the Committee get information from the AG as to whether that was in fact based on when this specific award was made. Could the AG appraise the Committee as to whether this specific award was then the one that ultimately led to the intended disciplinary action against the then CFO, Ms Rossouw, and her ultimate resignation? Did the AG look into the circumstances of that when determining this to be irregular expenditure?  

Adv S Swart (ACDP) said that the AG’s presentation would help the Members in engaging with the various entities within the Department as intended. He raised a few general issues. The regression of the OCJ was a very sad issue and it was regrettable. The Committee would deal with it in due course. He noted that there was a general finding that the portfolio had ‘not adequately implemented action plans developed to respond to non-compliance findings raised in prior years. That was the general view looking at all these issues. Then there was also the particular non-compliance of the OCJ of R428.7 million. Was this finding sufficiently addressed in its recommendations to deal with this? Because this was an ongoing issue. Every year there was a comment similar to this; not adequately implemented action plans developed to respond to non-compliance. He noted that the issue of irregular expenditure raised by Mr Horn was an issue he wanted to raise as well. It was R966 million which was a massive concern. However, that was not the end of the picture. There was a note there that also indicated that for the two previous financial years there was one auditee still outstanding. Was that one outstanding auditee with the R999 million standing? The irregular expenditure assessment was not yet complete. It could be increased by another R999 million given that that irregular expenditure audit had not been completed and that went back two years. Then one year ago, 2021/22, there were two auditees that were outstanding. The figure was R49 million. The substantial figure was the R999 million going back two years. He discussed the broader issues about the usefulness of the reports by the Department and entities to the AG. It raised concerns because what the AG was saying was that there were questions about the usefulness and reliability as to whether what had been told to the AG when it came to performance delivery did not impact service delivery. There were questions about that. There were questions that needed to be raised with the SAHRC in the absence of supporting evidence. The service delivery to citizens was unknown. He noted the issues related to cable theft. These were specific issues. What the AG was doing was really helping the Members when they engaged with these Departments. Linked to that were the NPA indicators that were not measuring the rate of success in the prosecution of crimes. He knew cable theft was massive but when one saw the success rates here, there was something disjunctive. That linked to the issue that the integrated justice system had not been realised particularly with SAPS, Home Affairs, and Correctional Services. There was a delay in finalising the system. The Committee did not have a full picture. It did not have the number of cases that were opened linked to the number of cases that were withdrawn, prosecuted, and convicted. Until Government integrated the justice system it would be very difficult for the AG and the Committee to evaluate all of these issues. He appreciated the input. He appreciated the comments about the Solicitor-General. There was one issue there that was massively concerning. There did not seem to be any national record about all the litigation that was engaged with by the State. The AG indicated an estimated figure of R147 billion. That was claims against the State. It must be deeply concerning. He appreciated the recommendation of a historical manual record. For example, it was known that the Road Accident Fund was a massive contingent liability to the State. It could be, similarly here, that it was not known what the figure was. That could have an impact on national finances. The Committee would engage with the Department on more specifics.

Ms Yako said that there was a general theme of procurement processes being used as a tool for corruption. It was being highlighted again with the Department of Justice and the OCJ. To the extent that there was an official that had been identified who was complicit. What was the way forward with regard to that official? It was known that there was an official that was complicit in a procurement deviation. That meant that something needed to happen around that. During the Committee’s oversight, it highlighted how it was concerned with the systems that were put in place. Especially with a Department which centred itself around record keeping. The Committee had said that it had an issue with how it was happening. It was almost very manual instead of being electronic, at a time when anything could be tampered with. It had been highlighted by the AG at the moment. She discussed the issue of vacancies. The Committee was always going to lament about vacancies, however, if those vacancies were not filled then the Department would sit for another two or three years with a new workforce that did not understand what was required from them. The Committee would sit with historical issues that it had to deal with each and every year, and address. This would defeat the purpose of clearing out any findings that were found, especially in a respected Department such as the Department of Justice. She suggested that the Committee monitor this matter according to a specific timeline to see how far it was moving. It seemed as if the Committee was receiving a report on the same things each and every year. As soon as the AG reports the Committee made recommendations, however, they remained as they are, and the systems stayed as it was. It was maintained as it was. Nothing seemed to change because they did not feel the Committee was understanding the implications of what should happen should the Committee sit with the Department of Justice that was not functioning. It left general society to not trust the Committee as overseers.

Dr Newhoudt-Druchen said that she had two questions. The AG kept on bringing up the record keeping and the challenges with regard to record keeping. From the AG’s perspective, were the challenges with record keeping because of a lack of skill, or was it because of a lack of training on how to do proper record keeping? What was the AG’s perspective on that? Could the AG assist the Department to ensure that every entity did proper record keeping? She discussed the matter of the internal audit committee. Was the AG satisfied with the skills and capabilities within the internal audit committee for them to keep their entities on track? Was the AG satisfied? Did the AG meet with the internal audit committee of the entities mentioned, like the Department of Justice, Legal Aid South Africa, the SIU, and the SAHRC? Did the AG sit with them to explain to them what the challenges were?

Adv G Breytenbach (DA) said that she was largely covered by Mr Horn and Adv Swart. She wanted to know if the AG could help with the measuring of conviction rates in percentages. She found that problematic. She found the measuring of success rates in percentages very difficult to gauge if there was a 100% success rate in prosecuting certain offences. If the Department only prosecuted one case and won it then that was a 100% success rate. It looked very good on paper but for her it was meaningless. There were a certain number of matters entering the system as cases being investigated by the police. Then there was a certain number of matters being enrolled by the National Prosecuting Authority. Then a whole lot of them just disappeared in that system. Then there was a conviction rate of 70% or 84% or 92%. It meant nothing because no one knew what happened between the case entering the system and the end. If the Committee was to exercise proper oversight it needed to understand what happened between investigation, enrolment, and then conviction at the end of a matter. She found the percentages very unhelpful. She wanted the AG to help her with that. She discussed the matter of the Office of the Chief Justice that the AG touched on. She was not sure what information the AG looked at or how deeply it delved into the matter that was in the news and the three people who resigned and the awarding of that tender. She understood, fairly reliably, that all was not as it seemed and that what was available in the press was not 100% correct. How deeply did the AG look into that matter? Could the AG shed any light on that issue? The matter was a topical matter. It was an important matter. The Committee needed to get to the bottom of it. She wanted the AG to elucidate on the matter.

The Chairperson discussed the value of briefs. It was related to what Adv Breytenbach had raised about percentages. It was recorded that 82% and 83%, which was well and good, of briefs going to previously disadvantaged individuals. When one went to the ground the reality was not the same. It was not true. He was not sure when the AG said it was auditing this, or what the AG was actually auditing. An advocate would get a brief to go to court for two days or for one day. Then another advocate would get a brief of R5 million. What was the quality of those briefs? Had the AG delved into that? When the Members went to the JSC or engaged with legal bodies they were seriously disputing the fact that they were being briefed on quality matters that would assist them to hone their skills properly.

Ms Mantiyane responded to the questions relating to contract management. Contract management review was part of the AG’s standard audit procedures which it performed with each cycle. These were on performances for 2021/22. However, in the Department, there were no material issues that were reported with regard to that specific focus area for the year under review.

She discussed the irregular expenditure of about R854 million that was reported in the 2021/22 cycle. She had indicated that this related to an old security contract that had since expired. These payments were made in the prior year. However, this was reported for the first time in the Department’s records because the investigation process only concluded that it was non-compliance and the basis under which it was concluded in the year under review. It did relate to the prior year’s payments and the prior year’s non-compliance. It did not relate to the matter which resulted in the former CFO being put on suspension and the disciplinary processes that unfolded as a result of that.

She discussed compliance as well as the AG’s recommendations. It was imperative that the Justice Portfolio drove the issue of implementation of consequence management. Without those principles being employed, it would send a message to the Justice Portfolio that perhaps the issues of non-compliance were not so much opposed, which was not necessarily the message the Justice Portfolio would want to send out. Officials needed to take it seriously that non-compliance was not tolerable within the Justice Portfolio and as such, they needed to refrain from incurring this non-compliance. She noted that within the Department there was still no procurement framework. Without this area being addressed as a matter of urgency, it was going to be difficult for the Justice Portfolio to do away with non-compliance as it had become generally acceptable due to there being no procurement framework. There was an ongoing discussion with Treasury in this regard. Perhaps there might be a panel of legal service providers that would then be put together, through the assistance of Treasury. That was the feedback the AG received when it engaged with the Department.

She discussed the vacancies at the SAHRC. It needed to be addressed to adequately respond to the instances of non-compliance. The current financial manager was acting as the CFO. That has created a gap in the systems that were put in place to ensure that there was adequate compliance with supply chain management. There was a level that was not available in terms of the operations and the day-to-day running which included a review of procurement requests, and a review of procurement documents to ensure that they were compliant with the supply chain management regulations. She noted the AG’s recommendations to address issues of consequence management. When all of these things were addressed it should then assist the Justice Portfolio to move forward in terms of the compliance subject matters. If procurement management was addressed it would also address the issue of irregular expenditure. If the Justice Portfolio was able to produce credible financial statements that would also address another area of compliance management. All these matters need to be addressed and then the Justice Portfolio could move in a direction where non-compliance was put in the past and the Department was compliant with all the decisions being made and taken.

She discussed the R9.9 million that was reported from the 2020/21 cycle. That was a comparison. The AG was saying that in 2020/21 the irregular expenditure that was reported under assessment was R9.9 million, which was around R10 million. While in the current year it was R49.7 million. That was largely attributable to the Department. It was not to say that the amount that was presented in 2020/21 had not been dealt with. The AG was just indicating the trend that in the prior year the amount that was under assessment was R9.9 million, while in the current year it was R49.7 million.

She responded to the questions relating to the OCJ allegations. The AG reviewed those contracts using the procurement procedures to understand if there was any non-compliance. However, it did not do a detailed investigation. That was something that the Department was still addressing. No payments were being made in those contracts prior to the conclusion and finalisation of the investigation processes. Whatever comes out of those investigations would be considered by the AG in the next cycle when it performed the audit processes and then report accordingly.

She discussed the issues around record keeping. Record-keeping was most challenging in the area of performance reporting. The levels that were meant to review were not done so timeously and with the detailed rigour that was required. It was just a matter of checking if the information agreed to the next record and if the details that were captured are actually supported by substantial evidence. She could not categorically say it was a lack of skill or a lack of know-how. Perhaps this was not something that was done effectively and timeously without people being under pressure. There needed to be an intentional exercise to ensure that every quarter when quarterly reports were being produced they were verified at that stage. It was not something that was left when there were consolidation processes at the end of the annual performance reporting. This was something that needed to take place on a day-to-day basis so that credible reporting could then be achieved come the end of the year when the annual performance report had to be submitted officially.

She discussed performance indicators that were measured in percentages. What was challenging with these indicators is that they focused on matters that were finalised in the current year without reflecting on the backlogs. Without reflecting on the applications that were received. Or without reflecting on the cases that were currently sitting in the system in the case of convicted cases. The convicted cases would focus on what had been prosecuted and finalised but not what was currently sitting under investigation. These were good indicators to assist the Department to show the success rates and the losses but there were other indicators that needed to be brought in to also reflect on matters that were currently sitting in the archives of the Department. This was an area that the AG had already highlighted and brought to the attention of the Committee because it was concerning. She discussed the value of briefs. So, the target in terms of the numbers was 41%. When the AG looked at the actual value, then that was 29%. The AG had not gone into detail in terms of the quality of the briefs and whether these were briefs that were positioned in a manner that was going to assist these professionals to move to the next level. She understood that there was a policy within the Department that dealt with the processes and systems that were meant to assist legal professionals to transition from junior counsel to senior counsel. This was one of the policies that were reported in 2021/22. This was something that the AG would consider going into detail to review in the next cycle to understand whether these were quality briefs that would enable these officials and professions to build their resumes and businesses.  

The Chairperson asked that the issue of the value of brief be addressed. It was a very thorny issue. It was quite urgent. He asked that it please be addressed as a matter of urgency.

Ms Lelanie Straten, Senior Manager, AGSA, dealt with the issues raised in respect of the OCJ. She confirmed that the officials had been identified. The OCJ was currently busy with the investigations. It would be in a position to provide feedback on the progress it had made since it started with the investigation. She noted that after the media article the AG had specifically looked at the contract that was mentioned in the article. There were two findings identified. One was that certain mechanisms were not used for the IT procurement as required by the SITA Act. There was another finding that identified that the Terms of Reference, when the tender was advertised, did not include subcontracting as a requirement. There were two material findings that were identified during the audit process. The Department was now busy with investigations, so the AG was awaiting the outcome.

She responded to the question on the internal audit and if the AG identified any issues with regard to the skills. The AG had not identified any issues with the internal audit work. Most of the internal audit departments were doing what they were required to do. As part of the AG’s annual audit process, it met with the internal auditors to discuss areas where there were concerns as well as then relying on the work that they had been doing. There was definitely interaction between the AG and the internal units.    

Ms Mantiyane said that the AG would appreciate an investigation in the future to brief the Committee with detailed feedback on the work done on the audit of the integrated justice system. That was just a snippet of what the AG had obtained so far. There was more information that was available that could be used to brief the Committee should there be an appetite to receive such information.

The Chairperson said that in the programme for this term there was a slot to discuss the integrated justice system. The Committee Secretariat would communicate with the AG. Maybe it could use that slot in addition to what the Committee would be dealing with.

The Chairperson noted that the briefing was very fruitful. The Committee was well-armed to meet with the Department and entities reporting to the Committee. It was a very good start for the Annual Performance Report, to receive this report. It was detailed and armed the Members. The Committee thanked the AGSA for the good work done. The Committee really appreciated the report. It was important that where the Department had made a promise to do investigations that it provide the AG with a project plan for the investigations. That should also be given to the Committee. The AG would then be able to measure the Department against what had been given to it. The Committee did not want to have endless investigations. Taxpayer monies were being used to do these investigations. The Department might not be exact, but it needed timeframes so that it could be ensured that there was consequence management. Lack of consequence management was eroding the moral fabric of society. The Committee was concerned, whether it was the AG or the Departments themselves, the issue of lack of consequence management always came up. If the issue of consequence management could be addressed by the country, then half of the battle would be won. It was important that everyone focused on the issue of consequence management. People needed to know that they would be caught and dealt with if they did something wrong. Even if there were harsher sentences on paper but if people knew that they were not going to be caught those harsher sentences would just be on paper. The Committee needed to focus on the issue of consequence management.

Briefing by Legal Aid South Africa on Annual Report

Judge Motsamai Makume, Board Chairperson, LASA, led the delegation that briefed the Committee on the entity’s Annual Report. The presentation detailed the performance overview, legal service delivery, financial performance, human resource management, governance and sustainability matters.

Performance overview

The 2021-2022 financial year was the second year of implementation of the Legal Aid SA Strategic Plan 2020-2025. Legal Aid SA continued to contend with the challenges of the COVID-19 pandemic during the FY 2021-2022. Despite this, the organisation remained committed to championing the rights of all persons to access justice through the provision of independent, accessible and quality legal aid services.

Overall performance

• A total of 487 552 people were provided with legal representation and legal advice during 2021/22 and this amounts to a 31% increase when compared with the previous financial year.

• This figure comprises a total of 314 998 (89%) new criminal and 40 143 (11%) new civil matters, and the provision of legal advice to 132 411 people. This is a 17% increase in criminal matters; 44% increase civil matters and 75% increase in advice matters than the 2020/21 financial year.

• Legal Aid SA finalized 360 655 matters – 317 546 (88%) were criminal matters and 43 109 (12%) were civil matters. This is 9% more finalised matters than the previous financial year.

• Legal Aid SA also assisted 11 686 children in 2021/22; 6 935 (59%) children in conflict with the law and 4 751 (41%) children involved in civil matters.

• The extension of LASA’s mandate to provide land justice services commenced on 5 January 2022 with the establishment of a Land Rights Management Unit. The organization now provides legal representation and advice services in land disputes for those who cannot afford legal representation, including farm occupiers, labour tenants and restitution claimants. Legal Aid SA is at the centre of land justice efforts in South Africa.

• LASA was once again named a Top Employer South Africa for the 13th consecutive year. The entity has continued to prioritize maintaining excellent people practices in the workplace and strives to meet the challenges of the changing world of work to positively impact on the lives of its staff.

• With regard to its financial performance, LASA remains committed to the responsible, accountable and prudent spending of public resources in the fulfilment of its constitutional mandate. The entity received its 14th clean and 21st unqualified audit opinion from the Auditor-General South Africa in 2021/22.

(See Presentation)

Discussion

The Chairperson said that it would be important that LASA briefed the Committee on the intra-board disputes. When the Committee went through the report it picked up that there was an intra-board dispute which led to members of the board laying complaints against one another. He wanted Judge Makume to take the Committee through what were those issues.

Judge Makume responded that this had been a new board that took office in 2019. There were new members and old members on the new board. When people came from different positions some people had a way of addressing each other at board meetings. When people did not agree with each other and felt strongly about an issue then there was a tendency of using language that may not be acceptable to other people. It was basically about how people addressed each other on points of differences. Two board members were at loggerheads with each other. He tried to intervene as the Chairperson, but it was not effective. It came to a head in November 2021 when formal complaints were laid by one board member against the other that the language that was being used was not proper. That had to be dealt with. Then the second matter was a member who appeared virtually at a committee meeting under circumstances that were not acceptable. That complaint was brought to the attention of the board. Those two matters were taken to a formal inquiry after the board decided that an attorney should be appointed to investigate whether any of the board members, through their utterances or the other board member who appeared on the screen under circumstances that were not acceptable to a meeting, should be sanctioned or noted. The inquiries had been concluded. In respect of the matter where the two members were continuously at loggerheads with each other, a settlement had been reached. The two members reconciled and accepted that there was no intention of belittling each other. In one instance one member felt offended that it looked like every time he voiced an opinion that the other member thought that he was not a fit and proper person. The two members had a discussion with each other, resolved the issues, and committed to never again do such things. That matter was concluded. He discussed the other matter of a committee member appearing on screen under compromising circumstances. In terms of the Act, the board could not even suspend the members. The board asked the member to not attend the meetings until the Minister had been involved. The board had given the Minister a record of the hearing. The board was waiting for the Minister. It was only the Minister who could remove or suspend a board member. The board did not have those powers. That matter was still with the Minister. He was given the report as far back as August or July. It was his intention to give the Minister a call this week to find out what was the outcome. Those matters engaged the board for some time. It nearly derailed the board, but it was never derailed. The board managed to deal with all of its matters effectively. It was something that the board did not want to see happening again.

The Chairperson thanked Judge Makume for his response. That assisted the Committee.

Adv Swart said he appreciated Judge Makume’s comments on the intra-board issues. It was a pity. It was the first time that the Committee was aware that this type of situation had occurred. There were costs incurred and it was a pity that the two board members did not reconcile earlier without the need to bring in outside attorneys at some cost. This was a blemish on the board. He hoped it would be resolved and would not impact the work. Did it impact any of the work of the board whilst this was ongoing? He presumed so. He trusted that this matter would be resolved and looked forward to the report from the Minister.

He then touched on the issue of the Land Rights Management Unit. Even in the previous Parliament, he advocated that the issue of land rights should be moved to the Legal Aid board from Agriculture. He welcomed that fact. Given that the Legal Aid board had taken over 740 matters, was there sufficient funding and capacity? He appreciated that R24 million was taken from retention and R33 million from the Department. However, in last year’s report, the Committee was advised that it would need at least R114 million in initial projected costs for this year. There seemed to be a budget shortfall. How was that impacting the much-needed Land Rights Management Unit and the incredible work that the Committee expected that unit to do to resolve the sensitive land issue in South Africa? He discussed the broader budget issue related to the reduction in the budget of 8.3%. That would have an impact. There would be a severe impact due to this budget reduction. He commended the board and LASA for improving and increasing its legal assistance. There was a 31% increase in people who had been assisted. That was commendable given the fact that it had a reduced budget. The Committee had also opposed any reduction in Legal Aid’s budget given the good work that was being done. He wanted LASA to provide detail on the practical impact implications of the ongoing budget reductions. He noted a concern that had been raised by the Legal Aid practitioners relating to the transcription services, particularly when it came to appeals from the Department, and the impact it had on delaying matters. Had that been resolved? He raised the issue of remand videos at Correctional Services. When they were not working it impacted remand detainees. The Committee was to be advised on how it could assist because it did not want an increase in the backlog of cases. The Committee did not want an increase in remand detainees that were not able to appear on video to have their matters dealt with.

Dr Newhoudt-Druchen thanked Judge Makume for his response and clarification with regard to the intra-board disputes. She discussed online meetings and virtual meetings. Some organisations needed policies on how to conduct virtual meetings in terms of the background, the proper clothing to wear, and what one needed to do for online meetings. Did both Legal Aid staff and the board have a policy, or would it be developed with regard to online meetings, how to have online meetings and how to conduct themselves? She discussed the impact of Covid on the delivery of legal services to persons. She knew LASA had been impacted by Covid-19, the illnesses, and the deaths. In terms of legal services to the citizens, what was the impact of Covid-19? Two Legal Aid SA satellite offices were affected by the riots in KwaZulu-Natal in July 2021. Were there any updates with regard to those two offices? Have those offices been closed? Have they been moved? Have the records been found? Were the records damaged or lost? She wanted some updates in terms of that. She noted that there were two avenues. People who were too poor to get legal assistance for legal processes and then who also did not qualify for legal aid assistance. In terms of the statistics of people who were in the gap, they did not qualify for legal aid, but they were too poor to afford their own legal services. What were the statistics in terms of that group of people? She noted the presentation said ‘payments met within 30 days’. It stated 57% and then there was another percentage. What prevented LASA from meeting the 100% requirement of paying for services within 30 days? The presentation spoke about the staff turnover at 5.2%. LASA was getting awards for employer of the year for many years. What was the reason for that percentage? Were they not satisfied with the salary or the working conditions or did they get better opportunities?

Mr Horn said that he had two issues to raise. The first was in respect of court coverage. In the annual report it was noted that in respect of District Courts, LASA managed to retain 84% percentage. In terms of representation afforded to those accused in Regional Courts, that percentage had decreased from 97% in 2016/17 to only 81% in this financial year. This was against a target of 90%. He wanted to understand why the target was not being met. In previous annual reports, the assurance was always given that representation was afforded to those accused persons in the Regional Courts where they required it or where the court required it. This time he did not necessarily see that assurance. Given the fact that Regional Courts typically deal with the more serious crimes, this was a concern. He discussed the issue of spending patterns. He heard the explanation that only 95% of the reduced budget was spent because of the fear that the budget cuts would necessitate that specific staff positions would not be filled. The difficulty from the Committee’s perspective, as Adv Swart noted, is that the Committee had come out strongly in previous budget review reports to say that it did not support budget cuts for LASA given the important work it was doing. The difficulty was that Treasury would argue that if LASA only spent 95% of the budget given to it then it would mean that there was room for further cuts. It was making the Committee’s job exceptionally difficult to motivate against further budget cuts if LASA did not manage to achieve that benchmark of 98% at least in terms of spending. This was a statement to LASA, and they were welcome to react to it. It was important for them to understand this given the fact that the Committee had stiffed its backs on their behalf in previous BRRRs.

The Chairperson said that he needed to raise a few issues. In the report, the number of grievances had increased from 12 to 16. What were the reasons that led to such an increase? There was also the briefing of women. It had taken too long to deal with the issue of briefing of women lawyers. He asked that LASA respond to that. The two issues that were raised by Adv Swart and Mr Horn with respect to the inability to secure appeal records. The Committee would also take the issue up with the Department of Justice.

Judge Makume responded to the concern raised by Adv Swart about whether the intra-board conflict blemished the board. He confirmed that it blemished the board. The board was hurt by the ongoing disputes among members. He assured the Committee that despite that it did not deter the board from reaching solutions and conclusions. The board felt bad about it. He would be the last person to say that everything was well. It was not well. However, with the support of the CEO and management, the board had been able to weather the storm and managed to reach a consensus on a number of issues. He noted that this was a costly exercise. The board regretted that it had to go that way. To spend money on issues that could have been dealt with as adults. In the beginning, when this situation occurred he reminded the members that they had the right to differ but that they had to use the right language. He thought that people would be adult enough. Most of them were experienced board members from other committees and institutions. It was expected that people should carry themselves in a particular way. He noted that it had been a new board. The board was in the process of settling in. It needed to be remembered that the old board went out and the new board went in. Simultaneously, a CEO who had been serving for more than 16 years also had to retire. So, there was a new board and a new CEO. When a new principal came in, there were issues that arose. During that year, after there was a new CEO, two senior executive members were lost. People were wondering whether it was the CEO who was the cause of that because senior people were resigning. Those were some of the issues which translated into disputes. People were blaming each other. It was those things that caused the board a lot of problems. The board regretted that it had to go through that.

Mr Thabiso Mbhense, Legal Executive: Land Rights Management, LASA, responded to the questions on the Land Rights Management Unit. There would be a shortfall. With regard to MTEF 2022/23, there was a commitment for about R89 million. There would be a shortfall of R28 million. With regard to 2023/24 there was a commitment for R76 million. For 2024/25 there was a commitment for R80 million. So, there would also be a shortfall. There would definitely be a shortfall with regard to the funding of Land Rights Management.

Mr Sethopo Mamotheti, Chief Operations Officer, LASA, said he would deal with governance issues, accommodation, and human resources. He responded to the question about employee satisfaction, which was at 82%. LASA noted that employees were more interested in the Employment Value Proposition (EVP) than financial rewards. LASA had allowed employees to work from home long before Covid-19. This was appreciated by employees. They were only required to report to the offices on certain days. Employees like that. This flexible working arrangement was in place long before Covid-19. The employees also appreciated the continuous improvement of the EVP. When LASA increased its life cover employees appreciated that so much because there were people passing away due to Covid-19. That life cover helped LASA members. The EVP was the thing influencing people to not leave the organisation. He responded to the question of why LASA was spending less than planned. It was noted that this had the potential to cause problems in the future when it asked for more budget. LASA was being cautious. In the previous year, it had to do away with about 119 positions because of the budget cut. It spent 90% of its budget on employees and employees wanted certainty. If it offered employees short-term contracts it was not likely to attract good people. Employees wanted certainty and long-term contracts. What was the use of employing someone this year and then in the following year their contract would be terminated? Hence, it was cautious in the filling of positions. LASA took note of the Committee’s concern and for this current year, it would endeavour to reach that 98%. He discussed the policy with regard to virtual meetings. It did not have that policy. It was in the process of drafting the policy that would guide it on how virtual meetings should be conducted. He discussed the impact of Covid-19 on service delivery. He noted that on slide 11 the target for District Courts was at 80% but it achieved 87%. On a quarterly basis, it monitored its court coverage. It noted that its court coverage during Covid-19 was lower as a result of the pandemic. The pandemic did impact its court coverage because some of the courts were not operational. He responded to the questions about the offices that were destroyed in KZN. A satellite office had been extensively damaged, and all those records were lost. Therefore, it reconstructed its records. Because it was a satellite office, LASA was operating from a local office. The satellite office was repaired but it had challenges with obtaining a certificate of safety or occupancy from the landlord. It could not just move in without getting assurance from independent people that the buildings were safe to occupy. LASA SA had engaged with this landlord for the past two months, but it was not getting positive feedback. Now it was looking for alternative accommodation.

Ms Mpho Kgabi, Acting National Operations Executive, LASA, responded to the question from Adv Swart relating to the issue of budget reductions and how it impacted on the organisation. It impacted on service delivery because sometimes it had to cut on things like training and duty care. If the organisation had to cut on those things it had a major impact. For example, there was now the Specialised Commercial Crime Court. LASA had to train people who would cover those courts. There was one practitioner per court model. LASA was operating with that strictly. It did not have any other options when practitioners were sick, or they were off. It did not have any other extra capacity. It would obviously be impacted because it could not extend any capacity, either civil or criminal.

She discussed transcribed records. It had received a letter from KZN saying LASA needed to pay for its own transcribed records. That was challenged in court. There was a judgement against the OCJ relating to that. It had received that judgement one or two weeks ago. It had already started to engage the Department of Justice. A meeting was requested with them so that it was able to iron out the issues. It did not want to run to court every time it had problems like this. It was trying to engage with the Department of Justice as well as the OCJ. In most areas, the Department of Justice did provide transcribed records. The OCJ was the one that did not assist LASA, especially with appeals that came from the High Court. LASA had requested a meeting and was awaiting a date. It was trying to resolve the matter amicably and it hoped that it would be resolved. That would also answer Mr Horn’s question on records of appeal.

She responded to the question of payment of services and why Legal Aid SA did not have 100%. For Judicare accounts, LASA had its own internal checks that needed to be done. It had to confirm that practitioners were in court. It had to make sure that these Judicare attorneys also attended to the matters in the way that they were claiming in the account. It also needed a copy of the record from the court in order to pay the practitioners. Usually, it was in the form of a charge sheet that was handwritten by the magistrate or the presiding officer. Sometimes there were delays in legal practitioners obtaining these records. Most of the time it was because of the day from the practitioners that caused Legal Aid SA not to pay the accounts on time. If it received everything then it processed the accounts timeously. She discussed the issue of percentages in Regional Courts and the fact that it had dropped drastically to 81%. There were several issues. When the external auditors audited LASA they had also asked for the reasons why the court coverage dropped. There were several, including Covid. Most of the courts were closed because of Covid. Some of the time it was because of illnesses of any court official. Sometimes it would be because of recording machines. A lot of recording machines had not worked in the last quarter of the financial year. Loadshedding was also experienced in some of the areas. KZN was also seriously impacted because of the July riots as well as the floods. Those were some of the reasons that impacted the Regional Courts having low coverage.

She responded to the question about women’s empowerment. She had been involved in it from the beginning. There had been an improvement in briefing patterns relating to women. It continued to engage with the Black Lawyers Association, NADEL, as well as the South African Women Lawyers Association relating to the briefing patterns so that women could be accredited with LASA. It had also done some training for women relating to trial advocacy so that the gap could be closed for them to do cases in the High Court. Women were also given mentorship programmes and assisted them with cases in the High Court so that they would have a matter that could give them guidance if they needed guidance. Legal Aid SA had seen a slight improvement. It was about 3 to 4% compared to the past report. It was also preparing the other report to be submitted to the board in November so that it could relook into its briefing patterns. It was also trying to make sure that in its impact litigation or strategic litigation matters for every matter that it was approving, it made sure that the representation of the counsellors and attorneys was balanced. There at least had to be a woman and at least there had to be a woman of colour. LASA was striving towards that.

Ms Tintswalo Mofokeng, Chief Financial Officer, LASA, said that she would deal with some of the issues relating to finance. She elaborated on the response by Mr Mbhense about the funding for the Land Rights Management Unit.

Mr Patrick Hundermark, Chief Legal Executive, LASA, discussed the budget reduction and the impact on services, while they had a 31% increase which was commendable. It needed to be remembered that that 31% increase would have been in the 2020/21 financial year. LASA was still building to get back to pre-Covid levels. Particularly if it was looked at from a civil perspective in terms of the numbers it would be found that at this stage in 2021/22 it had not gotten back to pre-Covid levels. He noted that LASA lost 119 positions as a result of cost reductions. He provided a practical example. Its internal capacity in terms of the number of matters reduced from just over 47 000 to about 43 000. It reduced capacity by 4000 matters that could not be assisted, which previously could be assisted. The second impact of that was the immediate reduction of capacity but the caseload remained where it was when it had those positions. The remainder of the staff had to then deal with those matters. The impact from a criminal perspective was an increase in backlogs because it took that number of staff longer to complete their cases. That was a consequence of the cuts in the budget. Covid had given them some relief but now coming out and being in the post-Covid period there would be a great amount of impact. On the civil side, it had spent the majority of last year managing the caseloads of practitioners. He was currently busy with the review of the practitioner caseloads, having implemented measures late last year. This was being done to ensure that the caseloads of practitioners were brought within acceptable levels. With some of the backlogs with civil, it went back 18 months. It increased by 18% pre-Covid to about 47%. That had been reduced to about 33%. There were some areas where it could improve. That was the impact of the reduction. Because of the reduction, other waiting periods needed to be brought in or it had to refuse assistance due to lack of capacity. That was the impact of the budget cuts. He noted that at stages LASA had stopped outreach to certain areas, particularly satellite offices. This was particularly during the new phases of Covid which increased risk to its staff. There was therefore a significant decrease on the advice side. This year LASA should achieve about 150 000 but pre-Covid it was doing around 280 000. It had seen a drop in the number of walk-in clients, and it was something that it had tried to address with its communications. A lot of appointments had to be arranged through the call centre. There were two teams that were working so that if one team was exposed, another team could come in and take over. This also reduced the number of calls it could take. They were eventually brought to full capacity in November 2021 so that they could increase the call load that they deal with. He discussed the poor who did not qualify and the so-called missing group. LASA did cater for it. The means test was determined. The Committee would remember that LASA had come to Parliament and both Houses had approved it. It had been legislated. On the civil side of things, it now had a contribution policy. So, despite someone exceeding the means test, where that case had merit and they were not able to require the full cost for legal representation, LASA could order that they be granted assistance subject to a contribution. That was being done in civil and criminal matters. That was how it was introduced. It was difficult to answer the extent of the gap because there were no statistics out there as to people who were not being assisted. LASA knew who came to it, who it accepted and who it refused in terms of the means test. Those statistics were available. However, how many more there were that did not come to LASA that required assistance, there were no consolidated statistics for an answer. It had prepared a document where it looked at the number of cases in the court versus what LASA provided. The difficulty with that comparison was that there were no records kept of people who went through the civil courts unrepresented. LASA did analyse it from a criminal perspective because there is information from the Magistrates Courts where the presiding officers with less than seven years experience sentenced a person to more than three months or where they had more than seven years experience and sentenced someone to more than six months. This goes on automatic review if someone was unrepresented. Those numbers had been dropping from a criminal perspective. LASA would adapt its policy if it found that there was a gap. He discussed the assurance where representation for Regional Courts is required. From a Constitutional perspective where someone required representation in the Regional Court, it would be granted where they qualified in terms of the means test. He noted the decrease in LASA’s coverage. It needed to be understood that coverage meant that there was a certain number of days a court sat and LASA allocated resources to go to that court on a certain number of days. If a court sat five days a week but the demand for a practitioner to go there was only three days a week then LASA would only allocate three days a week. The courts knew that and would roll it for when the practitioners were there for someone to apply for Legal Aid assistance. Therefore, there was no one that would go unrepresented in the Regional Courts. It was just a question of how many days LASA was there covering those courts and attending to matters in the courts. He hoped that answered the concern about the assurance of representation in the Regional Courts. He discussed the briefing patterns in terms of women. LASA had submitted a report to the board. He displayed it for the Committee as an example. It was an overall summary of the briefing patterns in 2021/22 divided by race and by gender. Overall, it had a total of 111 briefs that went out. 46 went to African persons, 10 to Indian persons, 3 to Coloured persons, and 52 to White persons. The total brief percentage was also there. The male-female split showed: male 42% and female 58%. He noted the value in terms of the budget and in terms of payments. LASA tracked both the budget allocated and then the payments. He noted the percentage of budget. It was an analysis of why White was getting 67% of the budget versus African receiving 26% of the budget. Females received 59% of the budget and males 41%. The total value of the briefs was about R8.8 million. 53% were issued to the BBBEE group, as LASA defined it in its policy. That represented only 33% of the budget value. This was indicative of the BBEE group being briefed, being junior counsel working with senior counsel. Women achieved 58% of the brief which represented 59% of the overall budget. A lot of the senior counsel that was briefed were white women as seniors. The board was tracking the matter of women’s empowerment and was very aware of it in terms of the allocation of briefs. LASA kept its stakeholders very much aware of its briefing patterns. He hoped that answered the questions in terms of briefing patterns. It was a small element of its business.

Ms Mofokeng said that she wanted to elaborate on the Land Rights Management function and the budget for it. There was an allocation R89 million. They had also made representations to Treasury for the contingent liability. It had staggered the contingent liability over the MTEF. In the current financial year, it made provision for R28 million. In total it would need R118 million. This had been presented to Treasury, and to the DoJ&CD and it was being considered. It hoped that the funding would come through in January after the adjustment budget process had been finalised. It did acknowledge that there could be a shortfall. There was R33 million that it had received and the balance of the R24 million that it was able to retain from the prior year’s budget. It should have sufficient funding for the current year but for the outer years, it still needed to engage with Treasury and the DoJ&CD. She discussed the reduction of the budget and how it impacted operations. Ms Kgabi had touched on that. In terms of its operations internally, there had been projects that it had to forgo in order to prioritise the core business in ensuring that it had sufficient funding for service delivery. The building that it was currently occupying in Braamfontein needed to be refurbished. Time had been taken to do that but now with the Land Rights Management function and the appointment of a team for that unit that really needed to be looked at. From a budgeting point of view and the spending pattern, it was aware that it needed to be cognisant and mindful that it did not send back or reflect under expenditure at the end of the financial year. It was trying to ensure that it implemented all the projects within the right timeline so that it was better managing its funding. It needed to ensure that even when it needed to engage Treasury in terms of budget cuts they were aware that it was spending in line with its targets. She discussed the payment within 30 days. From a creditor’s point of view, it was basically because of some queries that came where probably a service provider was charging LASA for services not yet rendered or it was not completely satisfied with the services that they had delivered. Therefore, there were some queries on the invoices and hence the delay in paying more than 30 days. There were not a lot of service providers or even Judicare that was paid more than 60 days in terms of its policy. She noted that last year the moratorium on the appointment of staff was lifted so there was a huge drive to fill the positions that needed to be filled. It saw that in Q2 already that its COE had improved significantly from Q1 because of the filling of positions. There was also the judicare side where there were a lot of matters that were being referred and registered. It would need to carry that commitment until those matters were finalised. It was making sure that it was spending in terms of its targets.

Ms Kgabi discussed the impact of Covid on criminal matters. The major impact was on the Regional Courts because there were several court closures. There were fewer matters being finalised, especially because there might be multiple accused or multiple lawyers in the matters. There was a backlog in the Regional Courts. LASA was trying to engage its stakeholders in the Regional Courts’ stakeholders meetings so that it could work closer with the Regional Court Presidents. That was being done provincially. It was also trying to make sure that it spoke about these issues in the National Efficiency Enhancement Committee as well as the Provincial Enhancement Committee so that they could be resolved.

Mr Mamotheti stated that there was a low number of grievances. Any other dispute that was referred externally got reported to the board and the progress thereof was monitored. There were 2600 staff members and on average there were less than five grievances per quarter. That was very low given the number of employees that LASA had. For any grievance, there was a grievance policy and procedure that needed to be followed. HR dealt with it up till the end and made sure that all grievances were followed up.

The Chairperson responded that that was not the question. The question was that grievances had increased from 12 to 16.

Mr Mamotheti said that he was emphasising the number of grievances compared to the number of staff. He was of the opinion that it was still low. LASA offered training to its employees just to make them aware that there were processes that they could follow. Every time it did the training and people attended then it saw an increase. This meant that employees were empowered. Some maybe did not know which channels to follow because not all of LASA’s members were unionised. Some of the increases were only after the training that it had offered them. There had been recent training on sexual harassment and how to deal with it. Local office heads were also empowered on how to handle it according to the policy and procedure. Even before they concluded they had to engage HR to make sure that they had followed proper procedures in handling the matters. He would attribute the increase to the training that it was offering its employees.

Judge Makume thanked the Members. That concluded LASA’s presentation. If there were any questions outstanding, he invited the Committee to send them through in writing and they would be responded to.

The Chairperson thanked Judge Makume and all members of LASA. He thanked them for the presentation. LASA was one of the best-performing organisations within the Justice Portfolio. The Committee was blessed and proud to be working with the organisation. One thing that should always be at the top of the Members’ minds was that they needed to leave an organisation better than what it was when they arrived. Not worse than it was when the Members arrived. He called on members of the board to be reminded that any organisation should not be an extension of egos, but should be a weapon to serve the South African people better. He hoped this would be the last time the Committee received reports of intra-board disputes. From now the focus would be to ensure that the organisation moved from great to greater, from good to great. One of the things the Committee would like to receive from the LASA board was on the issue of briefing patterns in a report format. The Committee would like to receive the document Mr Hundermark was reading so that the Committee could be in a position to analyse it. The Committee wanted further engagement on Legal Aid SA’s briefing patterns. The Committee was happy with the engagement.

Briefing by Information Regulator on Annual Report

Adv Pansy Tlakula, Chairperson, Information Regulator, said that the CEO would make the presentation together with his executives. She wanted to raise two issues as she did her opening remarks. The first one was quite serious. It was the issue of the listing of the Regulator. That matter had not progressed at all. The Regulator had been raising it with the Portfolio Committees since 2016. It wrote to the Minister of Finance and made a concrete proposal to him, requesting him to amend the PFMA to include the Regulator in the definition of Constitutional institutions. The PFMA simply stated that Constitutional institutions were institutions stated in Schedule 1 of the Act. The Regulator did not receive any response. It then decided that its CEO and CFO should meet the Acting DG of Treasury, together with the officials, to see if they could unlock the challenges that the Regulator had. The meeting did not go well. It took the Regulator back to the discussions held in 2016 that the Regulator must be listed as a national entity in terms of Schedule 3A of the PFMA. This went completely against what the Act provided in section 19 because it was independent, subject only to the Constitution, and reported to the National Assembly. The Regulator told Treasury that it was not their decision. When the Regulator put forward the proposal that it had sent to the Minister, Treasury had then said if it wanted the PFMA to be amended then that had to be done by the Minister of Justice. It was then requested that Treasury put that in writing so that the Regulator could approach the Minister of Justice. Treasury had not done so until now. This listing was affecting the Regulator in various ways. In the way that it procured goods and services, it had to go through the Department of Justice. That took a long time and affected its ability to spend its budget. That affected the Regulator in many, many ways and affected its efficiency. She thought she would say this upfront as the Committee had undertaken to assist the Information Regulator. It looked like the Regulator was not making any progress in this regard. The second item was operational but had policy issues as well. She noted that the achievement of targets in POPIA was very low. That was because of the new legislation that was being grappled with in the country. There was no expertise in South Africa to deal with POPIA. The Regulator was learning on the go. The work was a lot if one looked at applications for prior authorisation, which the Information Regulator had to deal with from responsible parties that processed certain types of personal information. She noted applications for exemptions, applications for processing special personal information, and applications for processing the personal information of children. In hindsight, the Regulator did not make sufficient provision for POPIA.

Mr Mosalanyane Mosala, Chief Executive Officer, Information Regulator, led a delegation that briefed the Committee on the entity’s Annual Report. The presentation detailed the strategic overview, key policy developments and legislative changes, financial expenditure, institutional performance on impacts and outcomes, human resources statistics, financial reporting, and Section 84(a) Report. The 2021/22 Annual Performance Plan contained 28 output indicators. A total of 19 output indicators were achieved and 9 were not achieved. The overall performance was 68%.

Key policy development and legislative changes

• POPIA enforcement powers came into full effect on 1 July 2021, and the effective date for coming into operation of section 58(2) of POPIA was 1 February 2022

• The Regulator assumed its PAIA Mandate on 30 June 2021. Exemptions of certain private bodies from compiling PAIA Manuals came to an end on 31 December 2021. Accordingly, effective from 1 January 2022, every public and private body is required to compile a PAIA Manual.

Expenditure report

• During the year under review, the Regulator received additional resources to carry out its mandate.

• The budget allocation was increased from R45,4 million in the financial year 2021/22 to R87 174 million in the 2021/22 financial year, enabling the Regulator to recruit employees to perform the core business of the Regulator and carry out the requisite support services.

• It was a major achievement that the Regulator was able to implement Phase Three of the organisational structure as well as begin with the implementation of Phase Four recruitment.

(See Presentation)

Discussion

Dr Newhoudt-Druchen discussed slide 44. On slide 44, the Regulator said that the first organisation structure had 378 positions. She needed clarity on the 378 positions. Up to now, the Regulator had had about 89 positions. Did that mean that the Regulator still needed to fill another 289 positions? She wanted clarity on that. She noted that on slide 51, the Regulator said that 228 Information Officers submitted their reports. Out of how many Information Officers? She wanted to fully understand the Security Compromise Unit. Was it fully capacitated? Or did it still need to be capacitated? Did that unit have the full skills that the Regulator needed? She asked that it be explained how that structure specifically worked. She had also received a case that she then emailed to the CEO. She was awaiting a response. She noted that the Regulator’s education and communication section must also be accessible to people with disabilities. She applauded that the Regulator had some information in braille. She had not checked the Regulator’s website yet. She tried to do that during the meeting, but she did not have the time. She would look into it to make sure that it was accessible to all disabled people, especially the deaf as well. When the issues were sorted and the Regulator was fully settled, could it make presentations to the deaf schools because there might be violations of access to information at the same time protection of information? People did not really understand that their information was protected and what information should not be shared. It needed to be accessible to all disabled people. The issue of the listing had already been brought up. Those questions would be raised with the Minister when the Minister was available to respond to questions and why the Regulator had not been listed. The Committee could get a briefing on that.

Ms Yako said that she was worried at how crippled the Regulator was because of POPIA and everything surrounding it. It seemed as if it was impossible for it to move with everything that was not being put in place. How would the Regulator like the Committee to assist it? Next year the Regulator could not sit with the same issues of shortage of staff, lack of movement, and lack of deliverables because of this one Act that was put through last year. What exactly would the Regulator like the Committee to do, even if it was in writing to the Committee? The Committee could use that piece of writing and engage the stakeholders to see how it could assist them. It was very important to have a functioning Information Regulator. What was the plan? What was the Regulator’s internal plan with regard to this? It seemed as if everything that had low performance in it was associated with this one thing. The Regulator said that there were universities, TVET colleges, and provinces that were not complying in terms of giving the Regulator information. What was the Regulator’s way forward in forcing them to provide that information because it was very important that the Regulator had it? What was the Regulator’s plan with regard to that? She agreed that the Committee needed to engage with the Minister about procurement processes. The Department of Justice was fumbling with procurement processes. To have the Regulator regulate itself and be accountable to itself would be very important. The Committee needed to speak to the Minister to see what could be done to give space for these entities to do their work.

Mr Horn raised the listing issue. The Committee needed to consider if it should take a more hands-on approach regarding this matter. Over the past two years, the Committee had deferred in both instances to the Minister of Justice as well as the Minister of Finance and there were all sorts of explanations that the person that was serving as the Minister of Finance had changed amidst all of that. If it was still so that the listing had not been solved then it might be an issue that the Committee could be accused of failing in its duty if it did not get all the role-players around the same table, even if it was virtually. He noted that this was now being used as the reason why other important milestones and targets were not being reached. He did not think that was necessarily indicated by the organogram and structure. The Members had full sympathy that the issue of the listing needed to be sorted out but that in itself did not prevent the Regulator from filling other key vacancies. For example, the POPIA Executive. During this financial year, this position was not filled. This was related to only one of the targets of POPIA being achieved. That was not acceptable from the Regulator. The PAIA targets were introductory targets given that there was a takeover of functions. The POPIA targets were always there being slowly introduced. Reaching only one of those targets was not good enough. Was there now a proper case management system? If so, what was the involvement of SITA in procuring the necessary software to establish a case management system? Despite there being a relatively low number of complaints there was a backlog being built up in respect of the ability of the Regulator to deal with these. This was a serious issue. The general public might take a view that this was just another institution that was being set up in name only. There may be creditability and trust issues that may now follow in the event that for the relatively low number of complaints around POPIA that there was already a backlog. That while one understands that the whole issue of listing was fundamental to establishing full functionality. The performance issues could not be excused simply on the basis that the listing had not yet been settled on.

Adv Tlakula responded that the Regulator could not blame everything on the issue of listing. The Regulator could blame it for the non-achievement of targets in the finance area and in procurement. The Regulator had to go through the Department of Justice and there, things tend to go very slow. This is related to the issue Ms Yako and Mr Horn raised. POPIA was the weakest link in the organisation. The Regulator had to be upfront about that. The Regulator battled to attract people with the requisite skills in the POPIA Division. The Regulator now had its third Executive. The first Executive was there for maybe a year and left. The second Executive was not even there for six months and then left. Adv Boikanyo joined on 1 September. Recruiting people in POPIA was such a challenge. The Regulator had to advertise and readvertise. It even had to go to search companies. Even in that process, using recruiting companies, it was very difficult to attract people. It was a highly specialised area. Very few people had expertise in that field in South Africa, if any. Even those who were acquiring expertise would rather stay in private practice to pursue this new area of law instead of coming to the Regulator, where the salaries were quite low. She wanted to paint a picture so that the Members understood the lack of performance. She discussed applications for prior authorisation. There were 12 junior members of staff who had to process very complex applications that come from responsible parties that processed personal information that required prior authorisation. Then all of a sudden there were 600 applications coming. The staff, including all of the Executives, had to jump in to look at each and every application. Those were not the only applications that were coming. There were applications for exemptions. There were applications for processing special personal information and processing the personal information of children. There were applications for codes of conduct. These were complex applications that needed to be analysed to check their compliance with the law. The problem the Regulator had was that it did not have the requisite skills in the staff. The problem was that the country also did not have the requisite skills. She provided an example. When the Regulator received those many applications for prior authorisation, it then appointed a firm of attorneys to assist the Regulator to process those applications. More than 90% of them that came back were wrong. The Regulator had to redo them. It was a problem of a new area of law that was still developing. The members who had the skills were also learning because they had been there before. The workload was a lot. The skills were not there, not only in the Regulator but also in the country. That was the reality that the Regulator was dealing with. She did not want to decorate it. POPIA at the moment was the weakest link. The Regulator was doing its best. There were interventions. She noted that some of the staff had been registered with the University of Cape Town which offered some courses on POPIA. The Regulator hoped that would assist. Even then, those courses would not assist because it was theory. One could only get a handle on POPIA while doing it. The doing was going to take a long time. The Committee had to assist the Regulator with the listing. The Regulator had decided that it was now going ahead. It was going ahead and would start acting independently of the Department of Justice. It had started with the IT systems. What assisted the Regulator was the major security compromise that the Department suffered. After that, the Regulator procured its own IT systems. The Regulator would take that approach incrementally. The Regulator would appoint its own bid adjudication committee and do procurement itself. If the Regulator waited for the listing for it to do that then it was not going to happen in their lifetime. That was the strategy the Regulator had taken. The Regulator was going to slowly separate itself from the Department of Justice, even without the listing.

Ms Hellen Shube, Executive: Corporate Services, Information Regulator, responded to the question on slide 44 and the number of positions. There were 378 positions and only 89 of those positions were currently filled. The Regulator still had to fill the outstanding positions. The Committee should note that in terms of the Regulator’s organisational structure it needed to establish itself in the nine provinces of the country. So far, the Regulator did not have an office in each of the nine provinces. It only had a head office. The approval that was given to the Regulator for the implementation of the organisational structure was to implement it in a phased-in approach. The Regulator had just implemented phase four of the structure. The Regulator still had to get funding to fund other positions as it was growing incrementally.

Mr Mosala said that the 89 positions that were filled were funded positions. The rest of the positions were not funded. Those were positions that the Regulator was awaiting Treasury to provide funding for. The Regulator had submitted its input to Treasury in terms of the MTEF process. Treasury had indicated that the Regulator would know by mid-November or beginning of December as to whether they had considered the Regulator’s submissions so that it was able to fill the rest of the positions.

Adv Tshepo Boikanyo, Executive: POPIA, Information Regulator, responded to the question around the Security Compromise Unit. Security compromises were currently dealt with by the POPIA Division. This was a very technical field. The expertise in the division was not such that it could deal with these particular applications. The Regulator has seen it fit to create a new Security Compromise Unit which would be under the POPIA Division. The Regulator was at an advanced stage with regard to the advertising. The advertisement should go out within the next week or so. In the unit it had looked at Senior Compromise Officer in the IT field. It had looked at a Security Compromise Officer also in the Legal field. It had also looked at a senior manager in this division in order to be able to deal with the security compromises. There was another question on the role of SITA. The Regulator had been engaging with SITA. The Regulator was developing a case management system with SITA. It was at a very advanced stage with regard to the Development. Phase one would soon be demonstrated to the Regulator. The Regulator had given SITA the specifications relating to its processes, both within the PAIA Division and the POPIA Division. He responded to the question about the backlog that was building up within the division. Notwithstanding that the Regulator did not have the necessary expertise within the division, it could not be folding its arms and complaining about this. The Regulator had come up with a backlog strategy that would include working overtime in order to try and bring down the number of cases and applications that were received by the division. This would give some comfort to the Members that the Regulator was trying to bring down the numbers. There was already regular interaction with the members that had dealt with POPIA for far longer than anybody within the Regulator. This interaction and working meetings with the members were really assisting in bringing down the number of complaints and applications that the Regulator had.

Mr Mosala informed Dr Newhoudt-Druchen that he had received her communication. He had referred it to the division. Work had started and they would confirm how far they were with the work by the end of tomorrow. The Regulator had noted the communication that Dr Newhoudt-Druchen had sent to him. The Regulator was working on it.

Mr Ntsumbedzeni Nemasisi, Executive: PAIA, Information Regulator, said that there were two questions under the PAIA Division. The first question related to the 228 reports that were received from the Information Officers of public bodies. The question was about how many public bodies had to submit reports to the Regulator. He had done quick rough calculations and there were 740 public bodies that should have submitted their reports and only 228 had submitted them. That was a significantly low number that had complied. The next question was about what the Regulator was going to do in order to deal with those public bodies who did not submit their section 32 reports to the Regulator. On an annual basis, the Regulator did a targeted base compliance assessment. This was one of the aspects that the Regulator was going to focus on in the new financial year in terms of those public bodies who had not submitted their reports. The Regulator was going to target them in terms of compliance monitoring in order to assist them to make sure that they complied. If there were any issues they had the Regulator would assist them for them to be compliant with the legislation. In the new financial year, the Regulator expected full compliance from all public bodies in terms of section 32. The Regulator would do the targeted base assessment in order to assist those public bodies for them to comply. 

Mr Mukelani Dimba, Executive: Education and Communication, Information Regulator, responded to the question regarding making public awareness materials available, particularly to members of the community who were deaf. He had previously reported to the Committee that the Regulator had taken that position. It was now standard practice at the Regulator that for all its public awareness events it had sign language interpreters. The Regulator also produced materials in braille such as the manuals, the PAIA guide, and pamphlets. The Regulator had invested capacity by hiring a media production professional whose task for this financial year, in terms of the Regulator’s annual operational plan, was to produce a video or an animation series on a number of PAIA and POPIA items and subjects. That series would be made available on the Regulator’s website and through other channels. Dr Newhoudt-Druchen would not be able to find such material on the Regulator’s website today, but it was certainly in full speed in producing that video series and animation series so that it was able to cater to communities that were deaf.

The Chairperson asked Adv Tlakula if she had any closing remarks.

Adv Tlakula said that the Regulator was trying. It was not easy, especially on the POPIA side. The divisions on PAIA, HR, and Finance were doing well. The Regulator’s weakest link was POPIA, but it had put mitigating plans in place to see if it could improve. When the Regulator came back and there was not much improvement in the POPIA Division, Members needed to be alive of the fact that this was the state in which the country found itself. Everyone was learning about the implementation and interpretation of the Protection of Personal Information Act. It was a very complex piece of legislation. The Regulator was doing its best and it would keep on pushing. The Regulator relied on the Committee’s support. Especially on the issue of the listing. She requested that the Committee do everything in its power to assist the Regulator to deal with the matter once and for all. She thanked the Chairperson and the Members.

The Chairperson thanked Adv Tlakula and the other members of the Regulator for the presentation. What concerned him was the issue of more of a portfolio approach. LASA SA had issues with the OCJ. The SIU had issues with the Department of Justice which was not paying them. The Committee had written to the Department. The Department promised that it was attending to the matter. There were also issues relating to listing and the benefits of members of the Regulator, which the Deputy Minister promised that discussions were at an advanced stage. He was not sure what that meant. These were the issues amongst entities in the same portfolio. That was a bit of a challenge. He proposed that the Committee call a meeting of the Minister and all the heads of these entities to thrash out some of the issues. For example, the Committee had resolved that the Chairperson had to write a letter to the Minister about the lack of cooperation on the ransomware attack by the Department. There seemed to be a dispute of facts. There needed to be that meeting to thrash out some of the issues that were affecting these entities within the same portfolio. The Committee should be recommending to the National Assembly on the issue of listing. It was not only affecting the Regulator. The bone of contention in the JICS Bill would be the listing issue. The Committee needed to have a meeting with the Department of Justice, the Information Regulator, and the Parliamentary Legal Services. It had reached a stage where there was no other option but to have a Committee Bill that was going to deal with this matter. He was not sure if there was even sufficient movement with the issue of JICS. To the best of his knowledge, it had not been to Cabinet. It was a firm proposal that he was putting to the Members. The Committee should start preparing for a situation where it was preparing itself to have a Committee Bill. That would ensure that these independent institutions that Parliament had created were truly independent. These institutions were not accountable to the Department. They were accountable to the National Assembly. If Parliament failed to protect them then it would be failing in its duty, as Mr Horn correctly asserted. If this issue of listing was a problem for four to five years and not going anywhere then the Committee would have failed. The Regulator was not accounting to National Treasury. The Committee understood the Regulator’s pain, trial, and tribulations. He was putting forward a firm proposal that the Committee must consider a Committee Bill. The Committee Bill would not only be looking at the Information Regulator but even other independent bodies that had been created, including JICS. As part of the Regulator’s outreach programme, he highlighted reaching out to universities and legal bodies. The Regulator called POPIA the weakest link. It could be a great opportunity because other areas of the law were saturated. This field of law needed to start being promoted. The result would not be today or tomorrow. They were going to take time because it was a scarce skill. The Regulator should be developing it and sending a message that this challenge was also an opportunity. He noted that some of the issues would be raised by Members tomorrow with the Minister. The meeting with heads of institutions reporting to the National Assembly, via the Committee, with the Minister and the Deputy Ministers should be convened urgently to look at all the issues of mutual interest and issues that were impeding service delivery so that those things could be dealt with once and for all.

The Chairperson asked the Members for their opinion.

Ms Yako agreed with the Chairperson. She asked that the meeting with the Minister and heads of the different entities be a physical meeting. There might be issues if it was a Zoom meeting. If it was a physical meeting then the parties would see eye to eye and thrash it out. By the end of the day, a conclusion would have been reached having looked one another in the eye. She was uncomfortable having that on a Zoom platform. She would prefer it if it was physical.

Adv Breytenbach agreed with the Chairperson fully. She supported the proposal of Ms Yako that it be an in-person meeting. It was about time that the Committee made a concerted effort to sort this out.

Ms N Maseko-Jele (ANC) supported the proposal. That meeting should be an in-person meeting.

The Chairperson said that the Secretariat would make the necessary arrangements so that the Committee had that meeting urgently to deal with all of these issues. He noted that Judge Cameron was also not pleased with the JICS and other Bills. Therefore, the Committee’s intervention should be drastic.

Adv Swart supported the Chairperson’s view and thanked him for taking a strong line. The Chairperson had listed the items. He suggested that the Committee could draft a list of items that could be circulated amongst the Members, just of what the Chairperson had mentioned. The researchers could draft a list for Members and bring the pieces together from the different research documents. Having that document would be helpful. He did not know how long it would take for the Committee to convene such a meeting, but it was also important for the Committee to hear from the entities. Should the Committee first hear all the entities and their complaints? Or should the Committee have the meeting more urgently?

Adv Tlakula said that the listing was the competency of the Minister of Finance. As the Committee convened these meetings, this matter was with him.

The Chairperson said that the Committee would be developing a Bill that would amend the PFMA to the extent that it would allow these independent institutions to operate as independent institutions. If the Committee just relied on the Minister of Finance then it might not have the Bill very soon. The Committee was within its powers to develop a Committee Bill because the Committee had asked for meetings, and they had not materialised.  

Adv Swart said that the researchers needed to check if it would amount to a Money Bill or not. He did not think so but if it was a Money Bill then there were constraints about who introduced such a Bill.

The Chairperson said that the Committee would look at all of those issues but there needed to be action. The Committee needed to deal decisively with this issue. It was not only influencing the Regulator. There was a bigger problem where the Committee might be in contempt of court with the other Bills. It was a bigger problem that the Committee was faced with. People who were supposed to be assisting the Committee were not. They wanted a model where there was a sharing of facilities among the Chapter Nine Institutions. The Committee did not know by when that would be completed. There were Constitutional Court deadlines to meet. It was not Treasury that would be found not to have complied with the Constitutional Court deadlines; it was Parliament. The Constitutional Court was quite clear that it was Parliament’s duty. The Committee had been begging people, but people were not coming to the fore. It could not go back to a situation where Parliament was found to be in derelict of its duty. Parliament had learned its lessons. It had to ensure that it did everything to the law. The Committee should do that research. The researchers would assist the Committee. It was important that the Committee had to act. The Chairperson asked Adv Tlakula if she was fine?

Adv Tlakula said that the Regulator was considering going to court actually. She thought that the Chairperson’s solution of the Bill was much better.

The Chairperson said that there would be hurdles but the Committee would be going ahead. Once the Committee published the Bill for public comments then people would come running asking, why was this being done? The issue was that the Committee could not sit and not do anything.

The meeting was adjourned.