PPSA 2022/23 Annual Report; Divorce A/B & RICA Bill: public hearings

Meeting report

PPSA presentation
Adv Kholeka Gcaleka, Deputy Public Protector, PPSA, reflected in her opening remarks, on the challenging and turbulent times over the past 16 months at the institution as a result of the sooner-than-expected leadership transition. The institution nevertheless managed to maintain effective levels of performance through the collective effort of both the leadership and committed staff. The PPSA achieved an unqualified audit finding but is disheartened by the regression in the performance which was attributed mainly to legacy legal fee issues. The institution has learned from and attended to these legacy issues. Consultations with National Treasury were ongoing regarding steps to prevent future adverse findings. This presentation coincided with the 28th anniversary of the PPSA’s office. To mark this milestone, the institution will be focusing on Good Governance under the Good Governance Month banner, which is an annual campaign during October since 2010.

(NB: This is a brief summary of the introductory remarks. Refer presentation for the complete introduction.)

Performance Overview
Ms Thandi Sibanyoni, CEO, PPSA, stated that the institution attained an overall achievement of 86% for the year under review. This was similar to the outcome of the previous financial year. The institution received an unqualified audit opinion with findings for the 2022/23 financial year. The material findings related to the procurement of legal services for suppliers who were appointed by the former PP and were linked to the section 194 impeachment process.

Financial Performance
Ms Sibanyoni reported that the baseline budget allocation of R357 million was augmented with an additional allocation of R20 million. The total budget of R377 million was used mainly to fund posts and for handling cases. Of the 582 required posts, 357 were funded leaving 225 posts unfunded. 343 of the 357 funded posts have been filled. The number of cases handled totalled 7 518 and 5 366 cases were finalised. Cases that fell outside the jurisdiction of the PPSA’s office totalled 578 and 573 cases were referred.

Mr Mfundo Mdingi, CFO, PPSA, reported that irregular expenditure increased from R30 million in the previous financial year to R49 million in the year under review. The increase of R19 million in the current financial year is related mainly to inadequate processes for the selection of legal service providers. Fruitless and wasteful expenditure related mainly to accommodation costs of the previous PP.

(See Presentation)

Adv Gcaleka, said a meeting was held with National Treasury to discuss future funding requirements. She pleaded with the Committee for an increase in the baseline budget allocation. The additional R20 million made a difference but it was received towards the end of the financial year which made it difficult to account for in the year under review. An application was submitted for Kara Funding to attract critical skills.

Discussion
Mr W Horn (DA) sought an explanation for the inaccuracies in the Annual Report. He asked if the Executive Authority was not scrutinising the integration between the quarterly and monthly reports. He wanted to know if the process of filling senior management positions had started. In the context of the organisational culture in the recent past, he was mindful that the recruitment process could only unfold once the appointment of the Public Protector is confirmed which would be problematic for instilling a culture of good governance. For the health of the institution, the recruitment of senior management should not be linked to the person occupying the PP’s position. He asked about the steps taken to avoid acting positions for long periods. He enquired about consequence management to remedy the fruitless, wasteful, and irregular expenditure. The PP embarked on 11 litigation matters but had withdrawn the defence because of a limited chance of success in the courts. He suggested that matters must actively be dealt with to prevent future fruitless and wasteful expenditure. He held the view that the former PP must personally be held responsible for the procurement of her accommodation. The gratuity of the impeached PP was not addressed in the Annual Report although the matter was in the public domain. It is logical that the gratuity should be forfeited in the event that an impeachment occurs before the end of the term. He asked if a legal opinion had been sourced about the entitlement to gratuity. As an oversight body, Parliament and the Committee are entitled to be briefed on the status of the matter. He asked if the total expenditure incurred by the PPSA’s office for legal fees, travel, and accommodation of the section 194 committee had been calculated. Making the information available was important for future implications on the public purse.

The Chairperson replied that the figures about the section 194 expenses are contained in the Annual Report.

Dr W Newhoudt-Druchen (ANC) said the resignation of 17 people was of concern. She asked if exit interviews were done and what the reasons were for the resignations. She wanted to understand how many positions were filled because it was already funded. She stated that organisations representing people living with disabilities such as DeafSA had not been contacted to attend the presentations that the PPSA made to Community-Based Organisations (CBOs). She asked if the PPSA’s office had ever made contact with CBOs working with people living with disabilities or if any presentations with subtitles were made on TV programmes to accommodate people living with disabilities. She enquired about the appointment percentage of people living with disabilities in the office of the PPSA. She was aware of lawyers who are unemployed because they are not recruited due to their disabilities. She enquired about organisations that the PPSA’s office had been working with to recruit people living with disabilities. She wanted to know if the correct processes are being followed to ensure that positions for legal services are filled.

Adv G Breytenbach (DA) asked if the quality assurance process had been beefed up to avoid a reoccurrence of errors in the Annual Report. She requested more detail on actions to recover the accommodation costs from the previous PP. She sought an explanation for the failure to submit a report to the Information Regulator. She asked why the year-on-year decline in finalised matters had not been arrested.

Mr G Hendricks (AJ) said the institution needed to be more creative in sourcing funds. Organisations listed on the JSE should not be using the services of the PPSA for cheap hearings. He suggested that a limitation should be placed on cash-flushed organisations to protect the office of the PPSA. He bemoaned the high legal costs when matters were taken to the High Court. He remarked that the PPSA’s office was doing a two-thirds job because one-third of the positions were vacant. After 30 years of service at the CCMA, he was familiar with a speedy resolution process and suggested that decisions of the PPSA’s office need not be defended in the High Court.

Ms Sibanyoni replied that all senior management positions had been filled. The only vacancies were in respect of two officials who have recently left the institution. Officials at lower management levels are highly motivated and often look for alternative options. The reason for resignations given in exit interviews was mostly for better offers elsewhere. The PMFA stipulates clear guidelines for dealing with fruitless and wasteful expenses. Cases must be investigated and presented to the Lost Control Committee. Depending on the amount involved, the amount could either be recovered or written off. A breakdown of the impeachment hearing costs is being calculated in terms of the legal fees, travel costs, and VIP protection. At the end of March 2023, the amount was R30.1 million but increased to R33.5 million to date. She explained that 343 of the 372 funded positions had been filled. The recruitment process for senior management positions could take up to three months to finalise. It was not possible to have 100% employment because of the continuous movement. The acceptable norm is below 10%. The institution has been maintaining a vacancy rate of 7% throughout the years. She could not remember that presentations have been made to CBOs linked to organisations representing people living with disabilities since she joined the institution. The CBOs are supposed to help identify vulnerable communities that the PPSA’s office could be missing. A deliberate attempt is being made to include people living with disabilities as key stakeholders. She was mindful that outreach through technology might not be effective.

The Chairperson said the broad statements were not helping and requested the CEO to be more specific on accommodating people living with disabilities. It is government policy to recruit 2% of people living with disabilities. At this stage, the institution should have made concerted efforts and implemented concrete plans.

Ms Sibanyoni, replied that Human Resources was given instructions to consult CBOs and institutions of higher learning as part of the recruitment process. The Sector Education Training Authorities (SETAs) are approached to identify people living with disabilities that form part of their learnership programmes. The institution will be intensifying the recruitment of people living with disabilities since the budget cuts have been suspended and started producing Braille brochures. She advised that the process to recover the accommodation costs from the impeached PP had started. However, it was found that the framework for recovery of expenses applies to employees and not to the Executive Authority. The PPSA’s office will be approaching National Treasury for guidance in line with the recovery principles.

The Chairperson questioned the robustness of the system because the irregular expenses should have been identified before the departure of the former PP.

Ms Sibanyoni said information on the accommodation expenditure is available because the PPSA’s office paid the Department of Public Works (DPW) directly. The extent of further expenditure is being determined including personal costs that might have wrongly been paid by the former PP. For example, the defamation of character matter against the DA should not have been paid by the office because the matter arose before the former PP took office. All expenses since 2016 are being scrutinised before engaging National Treasury.

The Chairperson asked if the former PP was advised that her accommodation costs were not in accordance with the prescripts of the law.

Ms Sibanyoni replied that the Chief of Staff at the time attempted to inform her that the state could pay for her accommodation at the secure estate where she had been residing since 2018. A letter from the Minister of Public Works at the time advised her to sign a stop order for rental payment but this information was kept hidden.

The Chairperson asked if the former PP was informed about the defamation costs.

Ms Sibanyoni said the office was scrutinising all the records to confirm the information. The idea is to make a determination of the full amount before approaching National Treasury.

Adv Gcaleka said the former PP was well advised to move to a less costly residential place. The documentation was not forthcoming during the investigation because the staff at the time were no longer at the institution and the current SAPS Commissioner was not at the helm when these incidents were taking place.

The matters, including the legal costs involved, had been brought to her attention hence payments had been discontinued. The issue of the Executive Authority was posing a hurdle. Adv Van der Merwe was in the process of verifying the fees for the section 194 hearing. R900 000 had not been paid. The withdrawal of attorneys produced invoices but they are unable to prove the results of their work. She stated that at no stage was the PPSA’s office considering payment of the gratuity. The determination to pay is being done by processes outside the institution. The latest communication from Parliament referred to obtaining a legal opinion regarding the body responsible for the payment.

In response to the inaccuracies in the Annual Report, she explained that the final report was tampered with. A former employee obtained the signatures of the acting PP and the CEO to affix it to the report. It was unthinkable that the report would be tampered with. A monthly review of reports is being done but subsequently, two weeks were added to the calendar for quality assurance and thereafter individual verification before signing off.

She replied to Mr Horn that the only senior management vacancy was the Customer Services and Stakeholder Relation position which was as a result of an internal promotion. Only one employee in Mpumalanga cited a non-conducive environment as a reason for resignation. An induction and training manual was compiled as guidance for a five-day induction training course. She has quarterly meetings with newcomers to gather their views and input on how the environment could be improved.

She replied to Dr Newhoudt-Druchen that the institution started printing Braille pamphlets. Attempts to reach out to deaf people are being hampered by the costs involved in sourcing interpretation services. She was hoping to provide progress on this matter in the next meeting. The headhunting process is expensive but the recruitment of people living with disabilities will become a priority since the budget for the following financial year would no longer be cut. She undertook to report positively on this matter in the next meeting.

She replied to Adv Breytenbach that the quality assurance process had been strengthened. Complaint forms have been amended to assist the quality assurance process from start to end. The COO’s office would be strengthened to assist with the quality assurance process. Decisions are made at the executive level and no longer at the investigation level. She explained that capacity challenges at the institution had resulted in not submitting the report to the Information Regulator. An experienced Information and Knowledge Management official had been appointed to redress the institutionalisation of information.

The Chairperson asked if the challenges were explained to the Information Regulator. The Information Regulator might feel snubbed if there was no communication in this regard. He advised the acting PP to meet with the Information Regulator as a relationship-building exercise.

Adv Gcaleka replied that Adv Van der Merwe had met with the Information Regulator and the reasons for the failure to submit the report are understood by the office of the Information Regulator.

She replied to Mr Hendricks that the complaints template is being revised. Most cases are submitted by small businesses because they have limited funds. Few cases are received from JSE companies and it would be challenging to limit JSE companies from approaching the PPSA’s office.

Dr Newhoudt-Druchen said many government departments and entities have been outsourcing the recruitment function to Human Resource agencies but these agencies are not sensitised to the needs of people living with disabilities. The deaf person, who is a lawyer, was told to bring along somebody to assist him during the interview process instead of the agency making preparations for a sign language interpreter. People are reluctant to put their deaf status on CV’s for fear of not being considered for positions. Government departments and entities should be aware of the need for interpreters.

Mr Horn sought clarity on whether the acting PP had formally engaged National Treasury on the R2.1 million accommodation repayment that the former PP is required to make. The lack of provision in the PMFA for common law responsibility of the Executive Authority does not mean that the Executive Authority cannot be held accountable for giving direction that resulted in fruitless and wasteful expenditure. He wanted to know who was responsible for filing a report to National Treasury and how the engagement was unfolding.

Adv Gcaleka replied to Dr Newhoudt-Druchen that the institution is recruiting directly through newspapers because it cannot afford to outsource the function to agencies.

She agreed with Mr Horn that the PMFA does provide for accountability. Engagements with National Treasury had been informal to date but a formal letter will be submitted to National Treasury once all money involved is calculated because she wanted the process to stand legal scrutiny.
 
The Chairperson sought clarity on the application that was made to the Kara Fund for the recruitment of skilled staff. It is posing a serious sustainability risk to recruit from a fund meant for a specific project instead of approaching National Treasury.

Adv Gcaleka replied that the appointment is not for permanent staff but for critical skills linked to a specific project and for a specified period.

Mr Horn asked that the Committee be kept informed on how the matter was unfolding.

The Chairperson thanked the office of the PP for the report and the work done despite the glitches. He was satisfied that the 86% performance outcome was maintained but was expecting an above 90% rating in the next term and 100% by the time of the next Parliament. He appreciated that the work was done under difficult circumstances. He requested an update on issues that the PP committed to provide feedback on by the end of November 2023 for inclusion in the legacy report of the Committee. As part of the legacy report, he proposed that at the beginning of the year or during the BRRR process, relevant departments and entities should update all Members of Parliament on the state of affairs so that the work is not viewed as impacting this Committee only. Matters that committees should focus on such as the status of systematic issues, the capacity of the state, and audit issues should be reported on to ensure the integration of processes in a manner that would make the oversight function more effective. The relevant departments and entities include the PPSA, AG, Public Service and Administration (PSA), the Human Rights Commission, and the Monitoring and Evaluation Department in the Presidency. This would form part of the tools to present a good picture of all organs of state and an opportunity to reflect on what lessons were learnt in the Sixth Parliament and which the Seventh Parliament can build on. He stated that this was the last meeting with the office of the PPSA. The journey has been long but he wished for a positive road ahead. The institution had been reflecting on the challenges and building experience to recover from the setbacks. He did not support celebrating clean audits because it should be basic for any functioning organisation. The focus should be on performance and the impact of the work on changing the lives of citizens. He appreciated the fruitful engagement.

Divorce Amendment Bill Oral Submissions
The Chairperson called for oral presentations on the Divorce Amendment Bill.

Women’s Legal Centre (WLC) Presentation
Ms Charlene May, Senior Legal Practitioner, WLC, said the WLC supports the draft legislation and welcomed the proposed simplified language because it would greatly assist in the implementation of the legislation. It was important to consider the particular mechanism of the Divorce Act in ensuring a just and equitable distribution of the estate as it relates to the dissolution of Muslim marriages. The recognition of children in Muslim marriages was welcomed. The WLC was concerned about the retrospectivity in the draft Bill because it would limit the relief within a particular time limit.

(See Presentation)

Discussion
Dr Newhoudt-Druchen agreed that all women are equal under the law regardless of their religion and should benefit from the law to assist them.

Mr Hendricks thanked the WLC for focusing on this matter. He stated that in terms of the Sharia Law, a Muslim marriage can only be annulled when a Muslim Authority issues a certificate of annulment. A woman remains married even if the legal process is finalised in the Divorce Court. He asked if the WLC had a problem with this situation.

Ms May stated the position of the WLC is to ensure that all women enjoy the same protection. The focus of the WLC is on constitutional law. It was not within the realm of the WLC’s expertise to comment on Sharia Law. The emphasis was on ensuring that the proposed legislation meets constitutional muster.

Adv Breytenbach asked if a woman, married in terms of a Muslim arrangement, is deemed to be divorced once she obtains a divorce order from the Divorce Court. She sought clarity on the legal status of such a woman and if she would be able to remarry.

Ms May replied that it was envisaged for a woman to be legally divorced once a divorce order is obtained from the court. She would be able to enforce the court order and there would not be any impediment to remarry. The Department of Home Affairs was developing marriage statutes that will deal with the recognition of marriages in greater detail.

The Chairperson thanked Ms May for spearheading the matter and for assisting the Committee in dealing with the issue.
 
COSATU Presentation
Mr Matthew Parks, Parliamentary Coordinator, COSATU, expressed his support for the Bill on behalf of COSATU. He advocated for the speedy passage of the Bill and urged the Committee to ensure that any remaining legal ambiguities and loopholes impeding the full recognition of Muslim marriages are removed. The 7th Parliament should ensure a comprehensive overhaul of marital legislation to ensure that all marriages are recognised and the rights of women and children are protected during divorce proceedings.

(See Presentation)

There was no discussion on the presentation.

RICA Bill Submissions
The Chairperson called for the presentations on the RICA Bill.

Baker & Mckenzie Inc. on behalf of Premium Ideas South Africa (Pty) Ltd Presentation
Mr Darryl Bernstein, Head: Dispute Resolution, Baker & Mckenzie, acknowledged the noble goals of RICA in his submission. But argued that the legislative framework falls short in facilitating the investigation and prevention of serious crime, and securing the safety of the nation. The solution offered by Premium Ideas South Africa (Pty) Ltd is to secure the packaging and distribution of the SIM-card, similar to the distribution of bank cards, in order to protect SIM-card-related information from being manipulated for fraudulent purposes.

(See Presentation)

Campaign for Free Expression (CFE) Presentation
Prof Anton Harber, Executive Director, CFE, voiced the concern of the CFE about the impact of improper surveillance on the privacy and free expression of individuals, particularly on journalists and lawyers because it impedes the manner in which their work is conducted. To this end, he recommended that a provision be introduced to ensure that all communication and data surveillance is done only through RICA. Furthermore, he recommended a full review of RICA to bring it in line with the Constitution, and not simply to deal with the Constitutional Court ruling on the matter.

(See Presentation)

Amabhungane Presentation
Ms Caroline James, Advocacy Coordinator, Amabhungane, raised some concerns about the text of the Bill. For example, the Bill introduces a new definition for a designated judge which implies the appointment of only one judge compared to the previous formulation of ‘any judge’ which allowed for the appointment of more than one judge. It is recommended that the definition should revert to the old formulation instead of the new definition of ‘a judge’. Although a review of the designated judge’s decisions was included, it does not go far enough in alleviating concerns about the ex parte nature of applications made to a designated judge. Amabhungane strongly recommended the introduction of a public advocate to provide an alternative position to the designated judge.

(See Presentation)

Intelwatch Presentation
Mr Murray Hunter, Acting Director, Intelwatch, highlighted the loophole in the Bill in terms of enabling law enforcement agencies to access sensitive communication data without any safeguards and restrictions through section 205 of the Criminal Procedure Act. It is recommended that the Bill remove this parallel procedure and ensure that RICA is the only mechanism for accessing communication data.

(See Presentation)

University of Johannesburg Presentation
Prof Jane Duncan recommended the consideration of baseline reporting standards for RICA judges according to the standards of reporting in the Necessary and Proportionate Principles. She suggested that the Inspector General of Intelligence should be responsible for reporting on RICA intercepts to Parliament. She agreed with the previous recommendation that the Bill should be clear about the appointment of the designated judges and review judges should be made with the concurrence of the Chief Justice. She was also in agreement that RICA should be the only mechanism for obtaining real-time or archived communication-related information.

(See Presentation)

Privacy International (PI) Presentation
Ms Karla Prudencio, Advocacy Officer, PI, highlighted the concerns about the post-surveillance notification requirements. The broad definition of a ‘potential national security risk’ in section 25A (2) of the Bill could lead to arbitrary exceptions. She advocated for the Bill to provide a maximum duration for notification delays to prevent indefinite postponement. She furthermore recommended the introduction of a well-defined procedure to guide individuals to address grievances effectively.

(See Presentation)

Closing Remarks

The Chairperson remarked that the presentations appeared to have been well understood and the points clearly articulated because Members had no clarifying questions to pose to any of the presenters. He agreed that it would have been preferable for the Bill to be presented to Parliament much earlier. He nevertheless undertook to finalise the Bill before the end of November 2023.

He drew attention to the letters from the office of the Chief Justice and the attorneys of Judge Motata that have been circulated. He asked that Members prepare for a discussion about the matter on Wednesday, 18 October 2023.

The meeting was adjourned.