Implementation of Public Protector remedial actions: DSAC, PPSA, NAC & AGSA input

Meeting report

Opening

The Chairperson made a few opening remarks. She emphasised that the Committee and Department of Sport, Arts and Culture (DSAC), as a sector, were of utmost national importance, pointing out how Ms Connie Chiume, a South African veteran actress, was crowned a lifetime achievement award at the Royalty Soapie Awards on 11 March, 2023. Alongside this celebratory event came the unfortunate news of the death of South African rapper, and songwriter, Constantinos Tsobanoglou, commonly known as Costa Titch, who collapsed and died on stage whilst performing, on the same day. This was shortly followed by the death of Ms Gloria Bosman, a South African jazz superstar and composer, who died on 14 March 2023. The Committee also conveyed its sympathies unto the family, friends and colleagues of Michael Maas, former CEO of Artscape Theatre Complex, who also died on 14 March 2023. Mr Maas’ death came after the Committee had just bid farewell to his other colleagues, including, but not limited to, the former theatre manager, Mr John Hawkins, who died on 16 January 2023.

No apologies were noted from any Committee Members. An apology was submitted by Minister Zizi Kodwa, stating that he had other Department commitments that he needed to attend to. Deputy Minister Nocawe Mafu also submitted an apology, stating that she was attending an outreach programme in Limpopo, which commenced at 8am on the same day of the meeting. The National Arts Council (NAC) was given an opportunity to present its own apologies. Ms Mandisa Tshikwatamba, Deputy Director-General (DDG): Institutional Governance and Corporate Services, DSAC, stated that Dr Cynthia Khumalo, Acting Director-General (DG), was in Vhembe, Limpopo and thus struggled with connection, but trusted the DDG to resume on her behalf.

The acting DG joined the meeting shortly afterwards, stating that she was in Vhembe Municipality, Limpopo, and that in the event that she struggled with connectivity, the DDG would stand in.

The Chairperson questioned who was present from DSAC.

Ms Tshikwatamba responded by saying that apart from the already confirmed DDG and acting DG, other officials present, including Mr Sibusiso Tsanyane, Director, Ms N Ramalepe, from the office of the DG, and Mr S Watani, from the office of the Deputy Minister.

The Chairperson asked the DDG for certainty regarding the Department’s delegates who were expected to be present.

From the NAC, those present included the following Council members Dr Sipho Sithole, Ms Bernedette Muthien, Ms Kim Matthews, Adv Eric Nkosi, who was presumed to only be joining the meeting later, and Mr Ashley Latchu.  Management members present included Ms Julie Diphofa, Senior Manager: Arts Development, Mr Vincent Mtshali, Company Secretary, and Ms R Bhoola, Acting Chief Financial Officer (CFO). Apologies were submitted by councillors; Mr Johane Chisekula, Ms Stephanie D Silva, Ms Bulelwa Malange, Mr Bongani Tembe, Mr Gamelihle Mbuyane, Dr Celiwe Ngwenya, and Ms Layla Swart.

The Chairperson expressed concern about the number of council members present in the meeting from the NAC. Her concern stemmed from the fact that the number of apologies totalled seven. The NAC chairperson HRH Princes Celenhle Dlamini, explained that seven members would be present in the meeting.

From the Public Protector’s office, Ms Nelisiwe Nkabinde, acting Chief Executive Officer (CEO), presented an apology for Ms Kholeka Gcaleka, Acting Public Protector, who was unable to attend, but had delegated members of her office to be present. Ms Ponatshego Mogaladi, Executive Manager: Administrative Justice and Service Delivery,  Ms F Myelembe, who was the senior investigator of the matter that was presented in the meeting, which resulted in Report 125 of 2019/20, Mr Luther Lebelo, Chief of Staff and Ms B Young, who was the manager of international relations and parliamentary liaison.

Ms Mbali Tsotetsi, Deputy Business Executive from the Auditor-General’s (AG) office was joined by Mr Xolani Zicwele, Audit Manager: City of Johannesburg.

The Chairperson then opened the floor for the proposal of the adoption of the agenda.

Mr M Zondi (ANC) proposed adoption of the agenda, and was seconded by Ms V Malomane (ANC).

Discussion on DSAC overview

The Chairperson explained the proceedings of the meeting by stating that briefings addressing the implementation of the Public Protector's remedial actions would be presented in a particular order; firstly, by DSAC, followed by NAC, then the Office of the Public Protector, and finally, the Office of the AG.

DSAC’s acting DG, Dr Khumalo, and Ms Tshikwatamba would make a few remarks, because the Department did not have a presentation, but had previously met with the NAC to receive a proper briefing regarding the status of the implementation of recommendations. According to Dr Khumalo, the presentation to be made by the NAC would be a reflection of what the recommendations were, and just how far they were in implementation. Dr Khumalo’s closing statement was that the presentation would be specific to the queries of the Committee.

Ms Tshikwatamba was given the platform to make remarks; she stated that DSAC made an effort to consolidate the response that would be given in the presentation by the NAC. The Department had tried to put forward responses to the Public Protector regarding this matter, with the last notable attempt being in November 2022. Following a proposal from a letter sent out by the Committee’s Chairperson, whereby it was requested that the Department, the NAC, and the Public Protector provide a joint presentation on implementing remedial actions, there had thus been engagements amongst the three parties involved. The DSAC had sent a letter to the NAC’s chairperson, to ensure that all requirements of the NAC were communicated and provided to by the DSAC and the Public Protector. There had been a continued provision of the responses given by the NAC. Follow up’s on the developments with responses had been made in 2023. Based on these engagements, it could be understood that the remedial actions had been implemented, and all that would be left would be a matter of reviewing.

Ms Tshikwatamba was given the platform to speak, once again, after the Chairperson recovered from technical issues. She summarised her previous remarks, referring to the joint presentation by the three parties, and the continued provision for the requirements by the chairperson of the NAC. Some of the main recommendations made included issues of policy changes regarding the NAC’s funding policy, which was done. There was also declaration of interest registers for employees, which was also done.

Ms Tshikwatamba stated that mentioning the key points of recommendations was confirmation that the presentation to be displayed would address everything in the recommendations, and the NAC, along with the Department, would be guiding the Committee through everything, including what had already been provided in the reports.

Mr T Mhlongo (DA) enquired about whether the Committee Chairperson’s office directed the NAC and DSAC to have a joint presentation, seeing as the purpose of the meeting was to have oversight of both executive and entity. It made no sense to have an entity present, both on its part, and on that of its respective Department. This raised questions about governance, because there had never been a situation wherein the president of the NAC, and the Department had a joint presentation. Was it a case of only the issues of the Public Protector being a joint venture? In his eight years in Parliament, Mr Mhlongo had never seen anything of this kind. He wanted clarity on the matter.

In response, the Chairperson said a joint report was expected from all entities present, including the Department. The Chairperson called upon Ms Tshikwatamba to respond to Mr Mhlongo’s question.

Ms Tshikwatamba asked that Ms Ramalepe assist her with regards to the correspondence that was received by the office of the DG. This correspondence made the Department aware that the only matter to be discussed was having to give a presentation on the progress of the Public Protector remedial plans.

The Chairperson interrupted Ms Tshikwatamba’s response, stating that departments are always expected to have their own overviews when invited before Committees. Did DSAC have an overview of its own, or was the overview what Dr Khumalo and Ms Tshikwatamba pointed out in their prior remarks? The Chairperson expected both the acting DG and DDG to be already aware of procedure, and adhere to it, instead of relying on colleagues to help them.

She said that she did not want to respond to avoid implication, or suspicion that she was protecting anyone, so it was requested that the Department respond to the question posed by Mr Mhlongo. The only relationship that existed between herself and anyone within and before the Committee was to provide correspondence from all involved parties. The Chairperson then confirmed with the Committee’s administration personnel that no overview presentation was received from DSAC, despite a prior request.

According to the Chairperson, this was the first time the Department did not have an overview, despite knowing how important this meeting was. She further made note of more discrepancies, such as the Department’s non-preparedness to present on the past Friday, reporting it to the Committee’s secretariat.

The AG was first to submit its presentation upon request, and even circulated it amongst Members as requested by the Chairperson of the Committee. The NAC forwarded its presentation too, along with the Public Protector’s office.

The Chairperson asked whether the presentations, and other relevant documents submitted by the entities are also made available to the public. It was noted for further discussion later in the meeting, that the Department did not have an overview presentation, despite it having to discuss what it had done.

The Chairperson asked that Members observe protocol, especially regarding speaking during the meeting, referring to how Mr Mhlongo had interrupted what she was saying.

Mr Mhlongo stated that his prior question was intended for the Chairperson, since the acting DG and DDG of the Department suggested that it was the idea of the Committee’s Chairperson to allow a joint presentation from both the Department and the NAC, despite the Department not having an overview. DSAC’s failure to provide an overview meant that it did not have oversight of the entity that it was presenting, and this made him question the governance within the Department. This was unacceptable, and not a matter to be taken lightly by those present.

Mr Mhlongo stated that it was unbecoming for the Committee to give oversight work to the Department, and it, in turn, to the entity, if the Department would not bother to provide an overview. The absence of other important organisations, such as the South African Roadies Association (SARA), was also a matter of concern, since this meeting was predominantly about it.

Ms Malomane stated that it was wrong for the Department not to have its own overview, since standard procedure required entities and the Department to have their own separate overview presentations. The availability of the Department and entities’ respective overviews would allow for analysis by Committee Members, and allow for the Department, in what would have been its first overview item, to provide feedback on the implementation of recommendations, to see if it had really carried out its oversight work. Ms Malomane, considering the importance of the meeting, asked that presentations resume, so there would be a way forward. The lack of the Department’s overview presentation was still to be noted though.

Mr Zondi seconded Ms Malomane’s perspective, and stated that the Department was supposed to notify the Chairperson about their decision to have a joint presentation with the NAC, and that it would not provide an overview. He asked for the meeting to proceed, and for feedback regarding progress.

Ms V Van Dyk (DA) seconded Mr Mhlongo, by stating that there was indeed a discrepancy within governance, because it was the responsibility of the Department to provide oversight on the NAC.

Mr B Madlingozi (EFF) asked what the Department intended by attending this meeting without an overview presentation. He suggested that the meeting resume, for as long as it would be fruitful, and provide conclusive results regarding the important points to be discussed by present entities.

The Chairperson reiterated that this was the first time DSAC was present without an overview presentation. However, it was not the first time the Committee had requested that the Department communicate with its entities at all times, to avoid incoherency. She further stated that after the Committee meeting the previous Friday, the Committee’s secretariat was tasked with ensuring that all entities, including the Department, had submitted their presentations, and that these presentations were made accessible to Members of the Committee. The only entity that submitted an apology, since it would not meet the allocated deadline, was the Office of the Public Protector.

Ms Tshikwatamba apologised on behalf of the Department, stating there was a misunderstanding, which could be attributed to the several reports the Department had been receiving regarding the matter at hand. The Department assumed that this meeting was only a summary briefing, which the NAC could have presented, since it is the same summary.

The Chairperson noted the Committee Members’ comments, and agreed with them, because the Department had an opportunity to communicate, and received all correspondence from the Portfolio Committee, as did the other entities, but it did not have an overview presentation. The meeting was to resume, and the NAC was given an opportunity to present.

NAC Briefing: Progress on the Implementation of the Public Protector’s Recommendations

After opening remarks by the chairperson of the NAC, H.R.H Princess Dlamini, Ms Diphofa, was given an opportunity to present.

Ms Diphofa outlined the beginning of this matter dated back to 2014, when the NAC opened a call for projects for surplus funds, for which SARA, amongst other entities, was declined due to compliance-related issues. The matter was reported to the Public Protector, and DSAC at the time, seeing as SARA was dissatisfied with the outcome. The then Department commissioned two investigative reports on the matter of the handling of the SARA application case, and the subsequent recommendation of the CEO of the NAC to give additional support to SARA.

The particular reason for the meeting was to look at the outcomes of the Public Protector’s report, and the recommendations that were given for the NAC to engage with.

Ms Diphofa continued to read through the presentation, which in its introduction and background subheading, addressed two main questions in the first point;

• Did the former CEO of the NAC submit an application to EXCO for partnership funding using the complainant’s name without consent, and if so, did this constitute improper conduct and maladministration?
• Was there impropriety and abuse of the Expired Projects and Surplus Policy by the NAC in distributing the surplus funds resulting in prejudice to the complainant?

Ms Diphofa explained that the Expired Projects and Surplus Policy governed the utilisation of surplus funds resulting from beneficiaries not claiming through the contracting process or the inability to meet the reporting and compliance process.

Discussion

Mr Madlingozi interrupted Ms Diphofa’s presentation, and asked if it was appropriate for the NAC to discuss, and make a presentation on SARA, in its absence.

The Chairperson responded that all the present entities would talk about SARA, despite its absence, to establish whether SARA was truthful in saying entities had lied about it when it was supposed to implement remedial. She further reiterated that it was not procedure to have a discussion during presentations. The purpose of the meeting was to establish what the entities in attendance did for SARA to accuse them of dishonesty/or malpractice.

SARA would only receive a report after the meeting.

Mr Mhlongo stated that in the event of a dispute, all parties involved should be present for the remedial meeting, just like SARA should have been present for this meeting. The Committee was supposed to set a good and referable example with this case, for future disputes, by inviting all concerned parties. He stated that he had written a letter to the Chairperson, enquiring about this sudden practice of leaving affected parties out during remedial meetings. Why is SARA not part of the meeting?

Mr Madlingozi’s question on why SARA was not invited was seconded by Mr Mhlongo.

Mr Zondi stated that in as much as the meeting was concerning SARA, it was not necessary for SARA to be present in the meeting, since all the participants from different entities were present.

Ms Malomane stated that the purpose of the meeting was to gather all important information regarding the dispute, hence the presence of the NAC and the AG. The Committee was thus conducting oversight, and could conduct it however it saw fit. It was allowed to invite these disputing entities to different meetings. Ms Malomane suggested that the already present entities be allowed to make their presentations, so that the Committee may gather information and make informed decisions about the way forward.

Ms D Sibiya (ANC) stated that SARA was supposed to be given an opportunity to compile its own presentation, despite it not being present in the meeting. The decision on whether to invite SARA or not would result from deliberating on the presentations presented in the meeting. Is SARA an entity? She then closed off by asking that all discussions be held off until the end of presentations.

Ms R Adams (ANC) responded by saying that SARA is not an entity, and does not report to the Department. She asked that SARA be put aside, and for the meeting to proceed in its absence. If the need to meet with SARA arose, the meeting would have to occur on a different date.

Mr Madlingozi stated there would be no resolution if SARA was not present. SARA should have been present so there would be a conclusive meeting with a resolution, instead of back-to-back meetings.

Mr Mhlongo stated that all entities and stakeholders deserved respect, including SARA, considering that it receives over R24 million in funding and investments from the Department. That, alone, should be motivation for the Department to work diligently with regard to SARA. When it comes to disputes, all implicated parties were to be invited to remedial meetings at once, just as it had been done previously in areas like the Free State, where stakeholders such as labour organisations, unions and every other stakeholder of the sort, would be invited and present before the Committee, despite not being an entity. Why the sudden change? Was this going to be the procedure, going forward? He stated that the Committee’s proceedings were inconsistent, and that it received constant communication from SARA, and did not respond, which was shocking. There would be a continuation of this communication from the SARA, but the Committee clearly would not respond. Mr Mhlongo stated that the Committee was avoiding the situation, and that if SARA was present in this meeting, there would be no need for all the emails and SMSes, some of which were of a derogatory manner, as alleged by the Chairperson, and the matter would be resolved. There was also mediation from the Public Protector with claims that certain issues were acted upon as per the diligence of remediation, but this was not true. 

Ms Malomane raised a point of order, questioning whether the right agenda was adopted for the current meeting, since what was being currently discussed did not align with what was on the adopted agenda, which was meant to address feedback on the implementation of recommendations. Network problems disrupted her statement.

The Chairperson asked to be allowed to give direction to the meeting, and stated that the adopted agenda of this meeting was about the remedial actions which were disputed, and to find out from invited parties, why this was the case. How were the remedial actions implemented?

Accordingly, it was important to hear what the present entities had to present, before reverting to Mr Nyathela, the SARA representative, responsible for the communication sent to the Committee.

Mr Mhlongo agreed that the agenda was adopted, however, he stated that SARA was being side-lined by the Committee and its Members. SARA’s constitutional right to be heard by the Committee is not being observed. Instead, the Committee intended to invite SARA in the absence of the entities that were currently present, which according to him, was unfair representation, because SARA would not be able to hold the entities accountable for any false claims they may make in real time, since there are already allegations of false claims by the acting Public Protector with regards to implementations.

He concluded by stating that there would be continued communication from SARA, since it was the stakeholder’s right to be heard, and its plights considered. Mr Mhlongo asked that his statement be noted.

The Chairperson stated that as per the last meeting, and the formation of this meeting’s agenda, she thought that there would be a presentation of facts from the invited leaders of the different entities, and that any inconsistency in these presentations would be noted to be discussed in another meeting on a different date for the Committee to decide on a way forward.

She agreed that it was the constitutional right of all South African citizens and organisations to bring forth any problems they had with stakeholders or entities, and was the right and responsibility of the Committee to invite these entities to account on their own behalf. The Committee was there to hear the reasons for challenging the entities’ remedial actions, and would still make an independent decision, which is its right.

Ms Sibiya stated that the agenda was adopted without mention of SARA’s absence. However, present entities were given an opportunity to compile and bring forth presentations, which is why she was against what she alleged were “intimidation” tactics by some Members of the Committee towards the present entities. The entities deserved respect during their presentations, and discussions or any disagreements could be raised thereafter, such as the issue of inviting SARA. Was it impossible to have this meeting in SARA’s absence? If so, why was SARA not invited? She then closed off by asking that presentation continue without interruption so that the Committee could establish whether there would be a need for a meeting with SARA at a later stage.

Ms Adams stated that the Chairperson had already given guidance about the agenda that stated that three entities, and the Department were to brief the Committee. There was no need for repeated questions regarding SARA’s absence. Instead, according to her, the entities should have been allowed to make their presentations without interruption. Then the Committee would engage on the issues regarding SARA, from what was presented by the entities.

Mr Zondi stated that it seemed like an issue, unknown to the present entities, Department and the Committee, and not covered in any of the presentations, that SARA wanted to discuss. He further stated that anyone who wished to meet with SARA or Mr Nyathela was at liberty to do so at any time. However, in this meeting, the adopted agenda was to be followed, because in Mr Zondi’s opinion, there was no difference between what Mr Nyathela had told the Public Protector, to what he would possibly tell the Committee.

Mr D Joseph (DA) stated that the Committee was only a facilitator for remedial action, and not an adjudicator for whether the complaint was justified or not, therefore the Committee was advised to take guidance from the report provided by the Public Protector. The Committee could be part of providing feedback to Mr Nyathela, whereby he would be invited to the next meeting, to be engaged with, and provided with the same report that was being assessed in this meeting, since the Committee prided itself in transparency. Perhaps a way forward, for the Committee, could come from receiving Mr Nyathela’s feedback after a follow-up meeting.

He did not have an issue with how this particular meeting was conducted, contrary to the views of his fellow party members, Ms Van Dyk and Mr Mhlongo. In his opinion, the process of this meeting was important, and was on the right track. The presentation was necessary for the Committee to understand, in depth, what was happening.

Ms Van Dyk asked for a commitment to ensure that all the currently present entities also be present in a follow-up meeting where SARA would be invited, because it was evident that the SARA held opposing views to what any of the entities had brought forth to present to the Committee in this particular meeting. The only way to resolve this dispute was to sit with all concerned entities and stakeholders, and work on a way forward.

Mr Mhlongo seconded Ms Van Dyk’s request to have all entities, and the Department, present when SARA is invited to a meeting. He further stated that despite adopting the meeting’s agenda, there was fault, because the first item on the agenda was a review of the Department, which was not consulted, because it did not bring any presentations for the meeting. When considering its content, the meeting was supposed to have four parties invited, but only three were, and the fourth; SARA, was not.

As a Committee Member, he said that he was not afraid to speak to anyone affiliated with the Department, and help resolve problems where he could; this also applied to Mr Nyathela. He was prepared to meet with Mr Nyathela, to work through what he could of the communicated issues SARA had.

Mr Madlingozi stated that the adoption of the agenda held no weight if the first item on the agenda was overlooked. He further stated that the Committee had to listen to everyone, including Mr Nyathela, and there was no need for a divide regarding the matter. Mr Nyathela had to be present for this meeting, otherwise anything said regarding him or SARA was irrelevant, since he could not be there to defend himself.

The Chairperson asked that Members hold back their deliberations to allow the present entities the chance to present. She further made mention of some of the allegations she had received via email regarding one of the entities, the NAC, which was said to be a looting scheme. The Chairperson did not wish to expand on this any further, but asked Members of the meeting to adhere to the meeting procedure the Committee had put in place, to address matters step-by-step.

The Chairperson said it was not relevant to refer to the adoption of the agenda, only now, when no one rejected the agenda’s adoption at the beginning of the meeting.

The Chairperson said she had nothing against Mr Nyathela and his dissatisfaction communication. The Chairperson explained that this is why these entities, and the Department were invited to make presentations, to establish where Mr Nyathela had been wronged, and try to find resolutions. Every citizen was entitled to this right, in the event that they were wronged by any entity, as per the provisions made by the Parliament of South Africa. It was thus important to follow procedure, and hear every concerned party’s perspective, and then revert to the Speaker for a unanimous resolution.

The Chairperson stated that all concerned parties were to be given equal opportunity to make presentations, and declared this to be the last round of declarations, since the entities needed to resume their presentations.

The Chairperson apologised to the presenting entity, explaining that the Committee engaged in robust discussion, and that there was often a difference in perspectives, which is why it was important for entities to come forth with presentations to set the record straight. The Committee had adopted a collective programme of Parliament and was implementing it in this meeting.

The Chairperson asked the chairperson of the NAC to resume with the presentation.

NAC briefing continued  

Ms Diphofa repeated some of the previously shared points already made before she was interrupted.

Ms Diphofa outlined the Public Protector findings:

• The former CEO of SARA submitted an application for partnership funding to the EXCO on behalf of the organisation, which was represented by Mr Nyathela, without his consent or knowledge
• The application, despite the lack of consent or knowledge by Mr Nyathela, had not been forged or falsified by the complainant.
• Due to the lack of explicit obligation by policy, the CEO did not inform the complainant about the annual partnership proposal.
• Although the NAC’s Policy allowed for the submission of the proposal to EXCO without obligation to inform the complainant, the practice proved to be inconsistent with the provision of s33(1) of the Constitution and s3(1) and s3(2)(b) of the Promotion Administrative Justice Act (PAJA), which provide for reasonable and procedurally fair action.
•  The reasons for the CEO’s decision not to inform the complainant were ruled to be unacceptable by the Public Protector.
• The reasons for the CEO’s decision, or failure, to not inform the complainant was ruled to be improper conduct as per the provision in s182(1)(a) of the Constitution, and maladministration as per the provisions made in s4(a)(i) of the Public Protector Act.
• There were substantiated allegations of impropriety and abuse of the Expired Projects Policy. The CEO’s decision to apply on behalf of SARA without informing it or obtaining consent was improper.
• The application by the CEO, wherein a previously rejected application for funding by the complainant, to which the complainant had not received a formal response with reasons from the NAC, was used, and this was found to have resulted in perpetual prejudice to the complainant.
• The implementation of the expired policy by the NAC was found to be inconsistent with the Constitution, PAJA and National Treasury Regulations and therefore was procedurally unfair as it did not take into account the rights of the applicant but afforded NAC employees, and management or Council-wide powers to deal arbitrarily with applications for surplus funds in particular, partnership funding without their knowledge and consent and therefore had the potential of abuse
• The conduct of the CEO and the NAC was found to amount to improper conduct in state affairs as envisaged in the Constitution. It constituted maladministration in terms of the Public Protector Act.

With regard to the recommendations of the Public Protector, the remedial actions were proposed to the Minister of the DSAC and to the chairperson of the NAC as follows;

(i) To the Minister:

• As the Executive Authority, the Minister was to take note of the report containing all the relevant information regarding findings and recommendations of remedial action, and to ensure that remedial action was implemented.

(ii) To the chairperson of the NAC

The chairperson was expected to take note of the findings of the report and within 60 days of issuing the report, so as to:

• Ensure that inconsistencies identified in the Expired Projects Policy were addressed by setting a process in motion to amend the policy and announce Standard Operating Procedures on the implementation of the policy, to align with the relevant legislative framework;
• Amend and strengthen the policy to close the gap that exists in it, to prevent the NAC staff and other NAC stakeholders from exploiting the policy, contrary to the tenet of fairness, equity, transparency competition, and cost-effectiveness as envisaged in s217 of the Constitution of the Republic of South Africa.
• Generally align the internal Policy Toolkit with the relevant legislative framework such as s33(10) and s217 of the Constitution, s51(1)(b)(iii) of the Public Finance Management Act (PFMA), s3(1) and s3(2)(b)(i) of PAJA, National Treasury Regulation 16A8 and Public Service Regulation 13(c) of 2016.
• Ensure that a letter of apology is issued by the CEO to the complainant for the manner in which he was treated by the NAC, including a formal letter of the outcome with clear reasons for its rejection; this letter of apology was to be ensured within 30 days of issuing the report, by the chairperson.
• Within 30 days, the chairperson must ensure that the CEO has put in place a “Declaration of Interest Register” for all NAC employees relating to the projects they have initiated since 2015 to manage any conflicts of interest, as previously mentioned.

On the progress on the implementation of the Public Protector’s recommendations, the Minister took note of the findings in the report, and ensured that remedial actions were implemented as follows:

• The CEO issued a letter of apology to SARA and Mr Nyathela for the way in which he was treated by the NAC including clear reasons for declining his 2014 application. It should however, be noted that Mr Nyathela was unhappy with the reasons as they changed from failure to provide all compliance documents to the NAC not funding infrastructure.
• The chairperson initiated a process of amending the Expired Projects and Surplus Funds Policy, wherein all the inconsistencies with relevant legislation were identified and corrected. All identified gaps have thus been resolved in the newly revised policy that is in place.
• The “Declaration of Interest Register” for all NAC employees relating to the projects they had initiated since 2015 to manage conflicts, is complete.
• General alignment of the internal Policy Toolkit with relevant legislation is complete;
• The policy includes a standard operating procedure for utilising unclaimed funds

Ms Diphofa outlined the developments:

• Amendment and approval of the Expired Projects and Surplus Policy by the NAC, as per the recommendations made by the Public Protector,
• Abolishment of the ‘Expired Projects and Surplus Funds Policy’ to a new replacement; “Expired Projects and Unclaimed Funds Policy” which was approved by Council in August 2021

Dr Sipho Sithole, NAC Board Member, stated that the NAC never intended to be at loggerheads with stakeholders, and all other entities within the sector. Upon arrival as the new Council, Dr Sithole and his team only had good intent, and therefore asked for forgiveness if there were any transgressions, particularly towards Mr Nyathela. For all the meetings conducted by the chairperson and their deputy, with Mr Nyathela, there were no resolutions, especially in the last meeting, which Dr Sithole did not wish to discuss in Mr Nyathela’s absence. Secondly, the NAC also met with the Public Protector, and former Minister, Mr Nathi Mthethwa, to address and respond to issues as directed by the Public Protector, however, to date, there has been no feedback from the Public Protector regarding whether the NAC had addressed issues adequately. However, Dr Sithole was glad that the Public Protector’s office was present in the current meeting, and would provide feedback, as they should have upon the NAC’s completion of recommendations.

In his last point, Dr Sithole stated that he and the NAC did not appreciate the slander against the Council, especially the claims of being a looting scheme, just as the Chairperson of the Committee had previously mentioned. These were allegedly baseless accusations, and Dr Sithole thus asked for a meeting wherein the NAC would present its funding structure and costs, to prove its honesty. Dr Sithole did not appreciate the Committee’s choice to entertain what he considered to be mistruths and rumours, which is more in the Public Protector’s job specification.

See attached for full presentation

The Chairperson thanked the NAC for its presentation, and stated that the Committee was not familiar with this Council, but that the DSAC was, which helped. The Chairperson allowed the Public Protector’s office to make a presentation, which may possibly help put an end to the dispute between entities and Mr Nyathela.

Public Protectors Office Response

The Public Protector’s office, represented by Ms Nkabinde, did not want to repeat what the NAC had already presented, and so only mentioned points that either needed to be expanded on, or had not been spoken about. As per the Public Protector’s office, the events dating from Mr Nyathela’s Report 125 of 2019/20 occurred as follows;

• The Public Protector of South Africa issued the above-mentioned report on 15 June 2020.
• The report followed a complaint lodged by Mr Freddy Nyathela on 23 January 2017 on behalf of SARA with a specific request to investigate the allegations relating to maladministration, corruption, nepotism and abuse of power by the NAC.

In the report, the following allegations were made;

• Abuse of power and subversion of due processes by the CEO of the NAC;
• Falsification of the South African Roadies Association’s (SARA) funding application by the CEO;
• Lack of adherence and compliance with the Promotion of Administrative Justice Act (PAJA) and Batho Pele Principles; and
• Maladministration and corruption by disregarding the National Arts Council Act, 56 of 1997 (NAC Act), especially the objects of Council by the NAC in implementing the Expired Projects and Surplus Funds Policy

Ms Nkabinde went through the recommended implementations and their progress statuses, just as Ms Diphofa had done in the NAC’s presentation, but this time, more in detail.

In terms of the judicial review of the report, there were three developments;

• The NAC took the Public Protector’s report on review, but later withdrew the application on 21 June 2021.
• Subsequently, the CEO of the NAC, Ms Mangope, in her personal capacity, took the Public Protector’s report on review, only to also withdraw the application on 20 September 2022.
• Since then, there have been no known further attempts for a judicial review of this report.

Ms Nkabinde also addressed communication with Mr Nyathela on implementing remedial action, just as Ms Diphofa did in the NAC’s presentation. The conclusion was the same: Mr Nyathela was unsatisfied with the information presented. Since all the recommendations by the Public Protector have been implemented, and majorly completed, the only thing to do, considering Mr Nyathela’s dissatisfaction, is to pass the matter onto the office of the National Assembly Speaker, who would, after communicating with other important stakeholders, such as the former Deputy President in this case, for assistance regarding reaching a decision for what is to be done with the dissatisfaction of affected parties.

Ms Nkabinde stated that the office of the National Assembly Speaker helped the Public Protector’s office in realising the Public Protector’s remedial actions, and when it came to governmental intervention.  

See attached for full presentation

AGSA input  

The AG’s presentation was brief due to the absence of a progress report, which had been communicated to the Chairperson. The reason for the absence of this report was because the remedial actions were for the attention and implementation by the Minister of the DSAC and the chairperson of the NAC. Secondly, the AG was of the view that the Public Protector’s office, in line with their mandate, is better positioned to follow up on the implementations of the remedial actions, and to provide the progress report.

The Chairperson thanked the entities, and opened the floor for deliberations from Committee Members.

Discussion

Ms Malomane appreciated the office of the Public Protector and its diligence in doing its job. Her question was aimed at the NAC, wanting to find out what the “Declaration of Interest Registers” were, the outcomes of all employees, and also how many instances there had been whereby conflict of interests was reported in the declaration.

Mr Madlingozi welcomed the presentation, and stated that there had still been an unsatisfactory condition that existed between Mr Nyathela and the NAC, and that it would have been fair to have Mr Nyathela present to explain why this was the case. Secondly, why was the NAC repeating a presentation that had already been brought forth to the Committee on 27 May 2022? He asked where in the recommendations it was suggested that the NAC establish a new policy, and which law allowed for the NAC to establish a new policy. Was the acting Public Protector also disregarding the provisions made by the Constitutional Court to observe an unlawful policy? Who paid for the dismissal with costs? Why did the Auditor-General change its stance regarding the NAC’s wasteful expenditure concerning the National Philharmonic Orchestra?

Ms Adams questioned whether quality assurance was put in place to ensure that amended and development policies had sufficient checks, balances and control. What actions did the Public Protector take in instances of non-compliance concerning recommendations? She asked if all presentations and documents displayed in the meeting would be made available to them, since it would allow Committee Members to view the presentations, understand them, and use them as proof, in the event that they bump into Mr Nyathela. Why did the NAC withdraw its application, on 21 June 2022, after reviewing the report? Why did Ms Mangope also withdraw her application? Why was Mr Nyathela still unsatisfied with the response from the NAC?

Mr Mhlongo stated that the presentation of the NAC was a “cut and paste, since it had allegedly been presented previously, in May 2022, and that was disrespectful towards the Committee. In his opinion, Mr Nyathela’s presence was very important so he could account for his statements and asked for a copy of the review policy that was amended within seven days, since the NAC apparently had a reputation for not submitting requested documents, such as the minutes of Mzansi, which the Committee had still not received to date. Mr Mhlongo also enquired about the conflict management policy, and if any documents were available for guidance. What was the status of the Expired Projects? If there was an amendment in policy, was it still being implemented correctly? He was adamant about receiving feedback within seven days.

When did the office of the Public Protector and the NAC meet, since it was alluded by them that they had similar presentations? He questioned the entities’ consistency, stating that the NAC was not consistent, and requested a document addressing conflict of interest, and the inconsistency of the NAC. Where, in the remedial action, was implementation recommended? Who gave the NAC the authority to change the remedial action prescribed by the Public Protector? How much was spent by the NAC in its review, and later withdrawal of the Public Protector’s report, and which law firm was consulted, and can they provide details? Still on the question of implementation, what certainty did the Public Protector have, that indeed, these recommendations were implemented? Where is evidence of an oversight? What was the reason for the appeal with the older Council? The Public Protector did not allow for the NAC to establish an unlawful policy to address legally binding actions, and yet the NAC did; what was the reason? There was a need to have this new policy be presented before the Committee. Mr Nyathela had to be invited to represent himself, to echo and explain his views. Mr Mhlongo stated that only factual issues were spoken about. If there was R65 million in the Reserve Bank, allocated for the Expired Projects, and only 30% was used, could the Committee get an estimate of how much was used towards the Unclaimed Surplus?

Ms Van Dyk enquired about the recommendation to the DSAC to abolish the Expired Projects and Surplus Policy, back in 2016, due to the possibility of the policy being abused. Why was the policy not abolished until the recent amendment? Was it the Department or Council that needed to oversee the process? She asked for clarity regarding the establishment of the new policy, and if there was a legal document supporting this establishment. Could the NAC explain the difference between the two policies? Could the Declaration of Interests register to be shared with the Committee?

Ms Van Dyk stated that she received a complaint that the register did not address any issues reported since 2015, meaning the register was incomplete. She asked for a reflection on that.

Ms Sibiya stated that most of her questions were already asked by Mr Mhlongo. She asked for the Public Protector’s perspective on the issue of Mr Nyathela still being dissatisfied, despite implementing recommended remedial actions.

Mr Zondi stated that he noticed that the matter with SARA started in 2014, despite the discussions dating back to just six months ago, as if the matter is recent and accepted the presentations without restriction, but he had a question for the NAC. What were the reasons for the NAC’s acknowledgement of the report by the Public Protector, beyond the recommended time? He further stated that the remedial actions that he supported the remedial actions implemented by the NAC, since the AG and Public Protector were in agreement. The Committee could not contest what they did not know, because all they knew was what had been presented to them, nothing else. In the event that Members of the Committee had something concrete, that was unknown to the Committee, they were at liberty to present before the Committee, instead of referring to unknown issues at formal meetings.

Mr Zondi applauded the NAC on implementing recommendations made to them by the Public Protector’s Office.

Mr B Luthuli (IFP) asked for clarity on SARA’s petition concerning the project turned down by the CEO. Why was the issue only raised after the Public Protector’s recommendations?

NAC’s Response

Ms Dlamini answered Mr Zondi’s question regarding why there was a delay to the NAC’s acknowledgement of the report by the Public Protector, by stating that it was because of a meeting that had formally taken place between the two entities, and the former Minister of the DSAC, so the report was not completely ignored, there were actions taking place in the background.

Ms Diphofa answered Ms Malomane’s question on what the Declaration of Interest Register entailed, and whether any member of staff had ever declared positive conflict of interest. As per s13(c) of the Public Service Act, the staff in the employee of state institutions have to declare any interests they may have or if they are engaged in the organisations affiliated with the NAC, other state entities, or Departments.

Concerning the Public Protector’s office and its findings, Ms Diphofa stated that the NAC needed to draw a list of applications for projects within the NAC, and that the drawn list included applications dating as far as 2014. In this list, applications were categorised; those supported by Council, those that came from an open call, and those recommended through the CEO’s office. The list was updated until 2017. The staff at the NAC in 2021 declared interest, but not in the organisations. The former CEO, at the time, also declared interest, but would no longer be considered since there was now a new CEO

In terms of the presentation of the NAC being the same as the one that was presented on 27 May, 2022, Ms Diphofa stated that the purpose of that, and this current meeting, was to present on the implementation of remedial action, and the stance of the NAC remained the same, hence the similarity in presentations. Bringing a different presentation would be construed as perjury.

The second remedial action by the Public Protector is what prompted the NAC to establish policy change, because the remedial action required revision, as stated in the Public Protector’s report. Concerning the authority to revise or amend policies, the policies in place were set to govern the NAC, and could thus be amended or revised whenever deemed fit by the NAC to maintain relevance, as parties and operations changed.

Ms Diphofa also answered the question regarding the costs of the dismissal of the review of the report, stating that the report was put on review by a previous council in 2019, and that the law firm that was appointed at the time was Mobeen Moosa Attorneys, and the estimated costs were R200 000.

The checks and balances made, as per the revised policy were that relevant sections that were considered to be contentious were removed, noting the use of surplus funding, wherein s8 of the policy stated that in the event that any monies were unused, an open call for funding applications would be launched, and organisations that were deemed fit by Council would be awarded.

The policy underwent judicial scrutiny to ensure that the Council’s amendments remained in line with the recommendations of the Public Protector, and that it remained consistent with other important legislative frameworks such as the Public Finance Management Act (PFMA), and the Public Services Act.

According to Ms Diphofa, standard operating procedures were developed, and the documents were sent to the parliamentary secretary as of December 2022.

With the coming of a new board, the current board decided to implement the positive recommendations made by the Public Protector, to preserve the steadfast governance of the NAC, and maintain respect for the Public Protector’s office.

Ms Diphofa stated that she did not know why Ms Mangope withdrew her review application and would not speculate.

With respect to declarations, there would be a determination of whether the documents addressing standard operating procedures, that were already sent to the Parliament, would be forwarded to the Committee, in the event that they were not sensitive.

Regarding the status of the policy, the new policy, Expired and Unclaimed Funds policy, was only a name change, since there was no major legislative change from the previous policy, and all basic tenets were maintained.

Ms Diphofa answered Ms Van Dyk’s questions by stating that the revision of the policy was in line with the recommendations of the Public Protector, and was not sudden, as there had been a series of revisions over time.

Regarding the outcomes of Mr Nyathela’s application, Mr Nyathela applied and responded to an open call in 2014, for which he was given a letter of decline in December 2014. In addition, the CEO at the time recommended the programmatic support of the SARA, but this was not satisfactory to Mr Nyathela, which is why he lodged a complaint with the office of the Public Protector.

Ms Dlamini thanked the office of the Public Protector, and the Auditor-General for their presentations, and was open to receiving assistance from both entities. Ms Dlamini was hopeful that this Portfolio Committee meeting, and the Public Protector’s ruling would be the start of the process that would appease Mr Nyathela’s dissatisfaction and put an end to the long standing slander against the NAC. It was evident that only the Public Protector could appease the matter, since there had previously been efforts for the NAC to meet with and resolve any issues with Mr Nyathela.

Ms Dlamini, on the behalf of the NAC, appealed to the Committee to have faith in the NAC’s capability to fulfil their duties, and to assist with the NAC’s funding pleas, since there was an issue of underfunding.

In her closing statement, Ms Dlamini thanked the Committee, all present entities, and the DSAC.

The Chairperson noted the responses from the NAC, and stated that some issues raised were not to be discussed in this meeting, but were a matter of further deliberation by the Committee, but promised that the Committee would execute its role.

Public Protector’s Office Response

Ms Nkabinde addressed Mr Madlingozi’s question on why the Public Protector’s office did not recommend a new policy with regards to the NAC, despite the knowledge that the policy could be misconstrued. The Public Protector’s office was only concerned with the implementation of its recommended remedial action; it only accepted the revised policy from the NAC because it was consistent with the remedial action that was suggested by the Public Protector’s office.

There is a unit, headed by Mr Lebelo, within the Public Protector’s office that ensures that all recommended remedial actions are implemented, and this information is reverted to the National Assembly Speaker, to engage with the Parliament, as per the requirement of the South African Constitution. It is thus evident that the office of the Public Protector does not just issue reports without following up.

Concerning Mr Nyathela’s case, Ms Nkabinde stated that there was a perception that because the office of the Public Protector is mostly guided by allegations, it has to take the side of the complainant at all times. This, however, was not the case, as the Public Protector’s office acts without fear, favour or prejudice, and had to diligently follow its standard procedures when handling Mr Nyathela’s case; the NAC was ruled to be innocent.

Ms Nkabinde emphasised that the report was signed on 15 June 2020 by Adv Mkhwebane, who was Public Protector at the time. The implementation of recommended remedial actions and its follow-up, were, however, addressed by the current acting Public Protector. The Public Protector’s office prided itself in its diligence.

To answer Ms Sibiya’s question, on how the Public Protector’s office felt about Mr Nyathela’s dissatisfaction, Ms Nkabinde stated that there had been, and continue to be, many other cases whereby complainants were unhappy with the outcomes of their cases.

The Chairperson thanked the entities for their diligence.

Closing Remarks

The office of the AG answered the Committee’s question on wasteful expenditure, by stating that there was no recorded report of wasteful expenditure.

The Chairperson gave the DSAC an opportunity to make a statement.

Ms Khumalo apologised for the misunderstanding of the joint report issue, but commended the NAC for being compliant in their presentation. The Public Protector confirmed what had been reported even to the Department. It was satisfied with the proceedings, and considered the matter to be closed.

The Chairperson took it upon herself to ensure coherent communication with the DSAC to avoid a repetition of the misunderstanding in the current meeting.

The Chairperson noted and thanked the clarity given by the Public Protector’s office regarding the implementation of remedial actions. She also thanked all present entities for their compliance and diligence in executing their roles. This case was closed, with the report being available to the Parliament and the Presidency. The Committee would take the report to the National Assembly Speaker for comparison and to ensure that all reports submitted to the government organs were consistent with each other.

The Chairperson thanked the members of Committee, and made a few more deliberations before releasing the invited entities.

Adoption of previous minutes

Committee minutes dated 3 and 7 March 2023 were considered and adopted.

Meeting adjourned