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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
12 April 2005
COUNCIL FOR DEBT COLLECTORS, COMMISSION ON GENDER EQUALITY, AND MASTER OF THE HIGH COURT: BRIEFINGS
Documents handed out:
Council for Debt Collectors Annual Report
Commission on Gender Equality submission
Master of the High Court submission
The Council for Debt Collectors reported that they were not funded by the government, but by the Swiss Agency for Development and Co-operation. They had seen a steady growth in registrations of debt collectors, although some people de-registered recently. The Council received much fewer complaints than they expected, and many complaints dealt with professions other than debt collectors. There was a need to put debt collectors and attorneys under the same code of conduct and legislation.
Members discussed various matters including the format of complaints; the visibility of the Council; putting debt collectors and other professions under the same legislation; exploitation by debt collectors; registration certificates; and investigations about complaints.
The Commission on Gender Equality (CGE) reported that their organisation had met many of its objectives. The CGE Act had to be amended to improve the work of the commissioners. They had been successful in their evaluation of the CGE and at improving their visibility. The CGE had monitored several courts and conducted gender analyses of Employment Equity reports and annual report cards from municipalities. They had taken part in public education through several programmes, including Equality Act workshops and Provincial and National Men Summits. Their total allocation constituted R22.9 million for the year 2004/2005. The Commission’s total expenditure during the year under review amounted to R20 433 342. The CGE investigated complaints and intervened in the legal process as Friends of the Court. They also conducted research in the form of poverty hearings and a Gender Opinion Survey. They faced internal and external challenges.
Members discussed various matters including the tabling of annual reports; conditions of service; staggered appointments and terms of office; reaching rural women by radio and phone; the Association of Women Judges; monitoring of the CGE’s website; an ‘audit’ of legislation; the structure of the organisation; performance assessments of directors; and witchcraft violence and non-compliance with protection orders.
The High Court Chief Master then reported that their current budget was sufficient, but that their allocation for 2005/2006 would not be enough. He provided an assessment of how far they had come in achieving the promises they had made to the Committee the previous year by addressing salaries, offices, appointments, diversity and transformation, anti-corruption initiatives, liquidations and the Guardians Fund.
Mr L Landers (ANC) said that he would stand in as Acting Chairperson while the Chairperson was occupied in the National Assembly.
Council for Debt Collectors submission
Adv J Noeth, Chairperson, said that they did not receive any funds from government. They received a grant from the Swiss Agency for Development and Co-operation. They had limited staff. They had seen a steady growth in registrations of debt collectors, but recently some people started to de-register. The number of registered debt collectors was 8945 on 28 February 2005. Four hundred and thirty-four registered debt collectors chose to cancel their registrations, as they were no longer in the profession. The Council would try to assist all people as much as possible in the registration process.
The Council recently started to receive complaints from the public about debt collectors. Adv Noeth said the complaints were much less than expected. They had an excellent code of conduct. The number of complaints affected less than 1% of the registered debt collectors. They received many complaints about other professions, notably attorneys and people who were not debt collectors in terms of the Debt Collectors Act, such as businesses who collected their own debts. The Council also received complaints about debt collectors who were not registered, which was a criminal offence. A problem the Council encountered was that complainants were often not prepared to give an affidavit.
Mr O De Meyer, CEO, said that the problem they had with unregistered collectors was that they did not have jurisdiction and the police were not interested in the matter. Mr De Meyer thought the code of conduct should be made applicable to all other organisations.
Adv Noeth said that all registered debt collectors’ details were available on their website.
Mr Landers asked if the complaints had to be in a specific format. Mr De Meyer said that it was prescribed that any complaint must be in writing and under oath. When the public were not be able to fulfil these prescriptions, the Council would still try to assist them if possible.
Imam G Solomon (ANC) said that they had mentioned that less than 1% of complaints were about debt collectors. He asked if the Council were visible enough so people could contact them. Adv Noeth realised that they had to do more to be visible. It was a question of available funds. They planned to go on regional radio and the local press to reach rural areas. He said that during the registration process people in the most outlying parts registered.
Mr Landers asked for their website address. Mr De Meyer said it was "www.debtcol-council.co.za".
Imam Solomon was aware that two groups of people collected debts: attorneys and debt collectors. They fell under different Acts, and were treated differently. Imam Solomon requested that they be put under one Act. He asked what the Council thought about it and what the difficulties would be. Ms S Camerer (DA) agreed that it would be preferable to have all debt collectors under the same statute. Adv Noeth said that they had actually suggested such amendments. It would only be fair to level the playing fields. They would have to think about it. Everybody should be subjected to the same code of conduct.
The Chairperson apologised for being late. She enquired about complaints and was worried about direct exploitation by debt collectors, when they charged more than they were entitled to. She asked about the prevalence of complaints of this nature compared to other complaints, and a sense of the areas where people were really exploited. Adv Noeth said they had a number of complaints about trust accounts during the time of registration. It happened that some debt collectors were not utilising their trust accounts, which were then closed by the banks. Some also did not understand the difference between trust accounts and normal bank accounts. Some of these people were charged, while it appeared that others made genuine mistakes. This constituted about 25% to 30% of complaints. Mr De Meyer said that some people complained about being overcharged. Adv Noeth said that people would have to comply with the Act if they wanted to stay debt collectors.
Imam Solomon asked if a debt collector was required to put on a letterhead that he was a registered debt collector. Adv Noeth said it was compulsory.
Mr Landers asked if a person was entitled to see a certificate of registration when dealing with debt collectors. Adv Noeth replied in the affirmative and Mr De Meyer said that it was too expensive to make IDs with photographs for the debt collectors. If debt collectors did not comply, they could be charged with misconduct.
Mr Landers said debt collectors could be very intimidating in rural areas. Ms Mahlawe said people were victimised in rural areas. She wanted copies of registration certificates as examples for her constituency. Adv Noeth said they would provide her with copies.
The Chairperson said that the Council would have to do a lot of legwork regarding the inclusion of attorneys in their legislation. She said it was something to bear in mind. The Committee felt very strong about it, and the Chairperson asked the Council to pursue it with the professions. She urged them to be firm in negotiations. Adv Noeth said that they had already started this process; they would soon take it forward.
Ms Camerer enquired about the turnaround time for investigations. She asked if there were a lot of outstanding investigations. Adv Noeth said that some investigations took longer than others. The criminal matters were dependent on the police, for who this was not the most urgent matter. The Council was trying to get an appointment with the Commissioner of Police. Mr De Meyer said they were in negotiations to arrange a workshop with the police and public prosecutors. He was aware of two arrests.
Ms Mahlawe asked if the Council could be invited to certain areas. Adv Noeth asked that they be contacted where complaints arose. He said it was most important to protect the public.
The Chairperson assured them that they would get their legislative amendments.
Commission on Gender Equality submission
Ms Joyce Pilise-Seroke (Chairperson) said they had managed to achieve some of their objectives, but they had not met all of their goals. They enjoyed the respect of the civil service. She was concerned that they had sent a report to Parliament every year, but that they did not receive any feedback.
Ms Pilise-Seroke wished that the CGE Act could be amended to improve the work of the commissioners. She was also concerned about the appointment of commissioners, which happened all at once. She preferred that their appointment was staggered.
The CGE received a lot of support from the Public Protector, notably in the North West Province. The CGE were aware of the challenges facing them. They recently lost their Chief Financial Officer. Their major challenge was to change attitudes.
The CGE’s work was guided by its constitutional mandate that commanded the CGE to promote respect for and the protection, development and attainment of gender equality. The CGE were in the process of familiarising themselves with the outcome of an evaluation of their institution.
The Commission started to enjoy greater awareness and media coverage as they opened new offices in the Northern Cape and North West. Their provincial offices served as extensions of the Head Office to ensure that there was uniformity in their work and to increase their visibility and contact with constituencies in rural areas.
The CGE monitored equality courts, family courts, maintenance courts and sexual offences. They also did a gender analysis of the Employment Equity reports from selected employers. Annual report cards from municipalities were also monitored. The CGE also monitored the implementation of international instruments ratified by government.
Ms Pilise-Seroke discussed their several public education programmes:
- Equality Act Workshops;
- Provincial and National Men Summits;
- Campaigns promoting gender equity;
- CGE Website (www.cge.org.za)
- Outreach through radio
- Media monitoring and networking; and
- Response to public enquiries.
The CEO said that they continued to focus in terms of their mandate and that much research had been done on gender to inform their actions. They received many complaints from the public. Their total allocation constituted R22.9 million for the year 2004/2005. Their human capital amounted to a total of 57, of which 12 were males and 45 females. The Commission’s total expenditure during the year under review amounted to R 20 433 342. The projection for the next financial year grew with a small percentage to R 21 412 000.
Ms Pilise-Seroke said the CGE intervened in a number of complaints regarding gender discrimination. They also handled complaints from the public about media advertisements; 27 cases of this nature were handled during the year under review. The Commission also intervened in the law making process through submissions to Parliament. They were involved with the following bills:
- National Health Bill;
- Child Justice Bill;
- Traditional Leadership and Governance Framework Bill;
- Property Rates Bill;
- Children’s Bill;
- Older Person’s Bill;
- Islamic Marriages Bill;
- Stalking Bill; and
- Alteration of Sex Description and Status Bill.
The Commission was also involved in research. They conducted poverty hearings in the provinces. The research resulted in the following recommendations:
- Stiffer penalties for cases involving the abuse of women and children;
- Strengthened measures aimed at protecting the rights of widows and the elimination of gender-based discrimination and violence; and
- Democratisation of traditional authorities across rural South Africa.
The Commission also conducted a Gender Opinion Survey, intended to assess how the status of women had changed in accordance with South Africa’s constitutional democracy.
The CGE were involved in court interventions as Amicus Curiae (Friends of the Court). This included the Bhe Customary Law of Succession Matter, Shilubane Chieftancy Matter and the Omar Constitutionality of Certain Sections of the Domestic Violence Act (No. 116 of 1998).
The Commission faced internal as well as external challenges. Internal challenges included their staff’s slow-moving negotiations with NEHAWU as their union, a lack of human resources capacity to conduct workshops and the administration of the annual report cards in municipalities. The CGE also needed amendments to the CGE Act to cater for:
- lack of Conditions of Service for the commissioners;
- litigation of cases; and
- tabling of their Annual Report directly to Parliament timeously.
Their external challenges showed that gender-based violence continued to a problem in South Africa regardless of the Domestic Violence Act and protection orders, which were often ignored. Other challenges were the outdated legislation impacting negatively on women and contradicting the principles of the Constitution and the implementation of the Domestic Violence Act.
The CGE collaborated with the Chapter Nine institutions of the Public Protector and Human Rights Commission (HRC) at both national and provincial levels. They signed an agreement with the European Union, which would make funds available to the CGE, and the Public Protector to conduct advocacy programmes in the Eastern Cape, Kwa-Zulu Natal and Limpopo.
The Chairperson said that in October 2004 the Committee had special hearings with the CGE, HRC and the Public Protector. They looked at some detail at their annual reports, in an attempt of Parliament to engage more appropriately with annual reports. She hoped that this could be brought in again this year and the future. The reason was that during the budget hearings not enough time could be given to the financial matters and the year gone by.
The Chairperson said that the annual reports had to be tabled with the Clerk of the Papers, who then submitted them to the Speaker who would then be notified that the document had been introduced. The Chairperson said that the previous year’s annual reports were tabled with the Committee and not with the Clerk of the Papers, and the Speaker was thus not informed. She said it was important that reports be tabled at the Clerk of the Papers, because the Committee would not do it on their behalf. Ms Pilisi-Seroke said they were grateful for that information, because they wondered why they had been hounded by the Speaker for not handing in the report on time. The CGE’s CEO said normally annual reports would be sent to the Department of Justice’s Director-General, the Minister of Justice and a request would be made for it to be tabled. They also sent copies to the Presidency and the Parliamentary Library. She said that once the reports were sent away, the CGE took it for granted that they would be tabled. She asked that the legislation be changed to allow them to table directly to Parliament, as the HRC had legislation to table their reports directly, while the CGE had to table it via the Department of Justice. The Chairperson said the issue had not been a problem until the previous year. She did not want to create a mountain out of a mole’s hill. She said it should not be a problem and suggested that they provide the Department with a letter asking them to table the document. She said if they still experienced problems, then the Committee might look into it.
The Chairperson said the conditions of service issue had been raised by the Speaker. There were clearly aspects requiring regulation and clarification, such as study leave. She said if there were no regulations, there would be nothing governing it, except that the CGE Act made provision for the President with the approval of the Minister of Finance to determine some of those provisions, but it was very broad. Ms Pilisi-Seroke said that the Treasury was drafting conditions of service for Chapter Nine institutions and this year they would receive a draft so that they could react to it. They had not received the draft yet. The Chairperson said that there was a general manual containing guidelines for institutions that were not state institutions, and were not governed by the public service regulations. They were busy updating this manual to incorporate some of the areas that had been left out. The CGE would be one of the institutions that would fall under these guidelines. However, it did not deal with commissioners by name. The Chairperson said they would have a proper workshop in the future that would deal with the issues. Members of the Committee would also be invited to such a meeting.
The Chairperson said staggered appointments were a matter of some concern. There were some practical problems regarding parliamentary processes. Ad hoc committees were formed to deal with appointments, and it took quite a long time to appoint people. It would be expedient to appoint two people at one time and then appoint two people again at a later stage. It was more efficient to deal with all the appointments at the same time. The Chairperson saw how it affected the CGE. She said it would be one of the issues raised at the envisaged workshop. Ms Pilisi-Seroke said the terms of the appointed commissioners would end next April, and they did not know who would be re-appointed, which added to the problem. The Chairperson said that continuity would be easily dealt with if the ad hoc committee were to say that a certain contingent of the people had to be re-appointed. The other problem with the staggering of appointments would be that people would stay on whom Parliament did not want to re-appoint. It was certainly something to look at again.
Ms M Maruti (ANC) congratulated the CGE on their work and asked if women in rural areas phoned in to the radio programmes to ask for information. The CGE’s Commissioner of Public Education said they reached many people through radio and they received many calls for information. People also phoned for information not related to radio programmes, because other Chapter Nine institutions referred people to the CGE when applicable. The issue of rural women also came into law reform. There was an urgent need to address this.
Ms Maruti said that women judges formed an international association. She asked if the CGE had any connection with them, as the withdrawal of abuse cases was a problem. She asked if they could influence the judges not to allow these cases to be withdrawn. She also asked if the attitudes of women judges could be changed. Ms Maruti felt that the cases should not only be judged on the evidence presented, but women judges should find out the depth of the problem. The CGE were trying to have a formal association with the women judges, as they were part of the formation of the association. They made a submission to the judges on the representation of women in the judicial system. The reasons for the formation were not only to ensure cases were not withdrawn, but also to help women judges to be sensitised. There was a need to support them to know that they were part of the bigger legal community. The law was intimidating to women. There were cases where the police did not fulfil their function in the protection of females.
Mr B Magwanishe (ANC) asked if they were able to monitor the logins to their website, and how many people did so. He also asked for a provincial breakdown if possible. The Commissioner of Public Education said they had a system in place to monitor their website. On average 3000 to 5000 people visited their website per day. The website was interactive; people could ask for information. They employed a person to address these questions on a daily basis.
Mr Magwanishe asked if they had done an audit on the legislation impacting on women that were contradictory to the Constitution. The CGE produced a publication on gender discrepancies in past legislation. They were also working with the Law Reform Commission to look at legislation to repeal legislation on an ongoing basis. The Chairperson said that the matter of the CGE functioning as Friends of the Court should be seriously discussed. She could not see why both the CGE and HRC should have the capacity to litigate. Her view was based on budgetary concerns. It should not matter who would take a matter to court. It was never envisaged for the CGE to litigate. The CGE and HRC should develop protocols for these matters. This issue should be taken up at a different forum. The CGE were meant to be a lobby group and to change attitudes. The Chairperson thought it would enhance the status of the Chapter Nine institutions if they collaborated more.
Mr Magwanishe was also concerned about the salary of the Chief Financial Officer because it was below that of most of the directors. He asked how they would be able to attract suitable candidates to the position. He also asked why there were differences in the salaries of certain directors. The Chairperson asked who determined the upper levels in the administration, excluding the commissioners. Mr Magwanishe also asked why the CEO got a personal assistant, but there was only one executive secretary for the eight commissioners. The CGE was on a lower level than the other Chapter Nine Institutions. This related to the allocation of the budget. The CEO of the CGE was at the level of Chief Director. This had an impact on the Heads of Department. They were in the process of bringing everything into accordance with the public service. The imbalances in the salaries were the result of the imbalances in the Chapter Nine institutions.
Mr Magwanishe asked if there were any performance management influencing salaries. The Chairperson asked at what point these assessments were done. They started to engage the public services to be in line with heads of department signing key performance contracts. This would be evaluated annually by the commissioners as well as an external person.
The Chairperson asked how the terms of contracts affect the CGE’s administration. Terms of contracts did affect the CGE’s administration, especially on labour matters. They had plans to engage staff in the CGE on different levels. The process would be disrupted in April when new commissioners came in. It was a unique situation, where people worked for them for a certain amount of time and then left, only to be replaced by different people, who would work differently. The terms had a serious impact on their administration. The Chairperson’s concern was with the terms of office, not so much the regulations. This was another area that had to be worked on.
The Chairperson said certain issues were raised during the October 2004 hearings. She would give the CGE a copy of the report with their undertakings, and asked that the CGE provide them with a package of their undertakings in due course.
The Chairperson said that the publications of the CGE would be very useful for the work of the Committee. She asked that the Committee’s attention be drawn to publications pertinent to them. The Chairperson also wanted documents relating to the CGE’s monitoring of the courts.
The Chairperson enquired about allegations of witchcraft. It could be life-threatening in certain areas. She asked what the CGE were doing about policemen who did not do their jobs. She asked if there were not some room for engagement with the South African Police Service (SAPS) as an organisation. The Chairperson thought that it was an awful dereliction of duty. Ms Pilisi-Seroke said that they had consultation with the SAPS and traditional leaders, amongst others, three years ago when the problem was rife in Limpopo. She said the Witchcraft Act had to be amended. This had not been done and left a void in the legislation that said witchcraft violence was against human rights.
The Chairperson also raised the issue of protection orders that were violated. She said they gave the police two years for training, but it was still not implemented. It must be done very urgently. The Chairperson promised the CGE the Committee’s assistance regarding this matter.
The CGE’s CEO said the problem did not only lie with the police, but also the judiciary and the withdrawal of cases. The Chairperson asked for a report with affidavits and names. She would make an example of the guilty parties. Ms Pilisi-Seroke said they would treat the matter with urgency.
Master of the High Court submission
Mr J Baloyi presented the Master of the High Court’s report to the Committee. He said that their current budget of R122 million was sufficient to meet their operational costs, but the budget for the 2005/2006 financial year was expected to fall short in achieving the priorities they had identified.
Mr Baloyi discussed the achievement of the promises they made to the Committee the previous year. The alignment of the salaries of the Assistant Masters and Estate Controllers with the evaluation of the Efficiency Advisory Services of the Department had been completed. Offices in Kimberly and Bloemfontein were upgraded, and the other offices would receive attention this year. The post of Chief Master had been advertised and would be filled when the post of Director-General had been filled. Mr Baloyi was acting as Chief Master.
Their recent appointments advanced the transformation process in terms of diversity. Several measures had been implemented to aid transformation and the restructuring of the Masters. They also undertook anti-corruption initiatives. They had also been very successful in achieving their priorities regarding liquidations.
The development of the first phase of the Guardians Fund Electronic System had been completed and rolled out to the offices. Every existing vacancy had been advertised and was in the process of being filled. The question of the reliance on Temporary Units would be addressed in the restructuring process.
The meeting was adjourned.