COVID-19 impact on judiciary; OCJ & Information Regulator 2020/21 APPs; with Deputy Minister of Justice
12 May 2020
Chairperson: Mr G Magwanishe (ANC)
The Portfolio Committee on Justice and Correctional Services met in a virtual format with the Office of Chief Justice and the Information Regulator to discuss their Strategic Plans, Annual Performance Plans and Budgets for 2020/21. Initially the Committee expressed its concern that the documents presented by the entities were irrelevant because they did not take into account the impact of Covid-19. However, it was decided that, in terms of processes, it was necessary to approve the budget as originally appropriated by Parliament and that adjustments would be made once the Minister of Finance presented the adjusted budgets to reflect the impact of Covid-19. The Committee indicated that that it would require all presenters to show how they were addressing the challenges and risks associated with Covid-19.
The Office of the Chief Justice presented a report on its five-year strategic plan, its legislative authority and institutional performance as well as the 2020/21 Annual Performance Plan, the budget and the risk management plan. A major risk was an inability to fully capacitate the Office and that would require a reprioritization of budget to fund critical posts.
Members asked what had been done to reprioritise the budget to accommodate Covid-19, what were the particular challenges and how did the Office plan to meet the challenges. How did it intend to ensure access to justice by the citizens? What was going to be done about the Covid-19 cases that were extending the backlog exponentially? What precisely were the courts doing seeing as cases had been postponed? Members asked for accurate data on how many criminal and civil cases that were on the roll for hearing in April, May, June and July 2020 would not be dealt with. They also requested that the Committee be informed as to how long it would take between when a trial-ready civil court case was enrolled in court and when it would be heard as that went to the heart of access to justice. Had the Office of the Chief Justice engaged with the Ministry in terms of what could be safely done in the courts at level 4 and also in preparation for level 3? Could a meeting be arranged with the Chief Justice?
Members asked for information on the intentions of the Judicial Education Institute to deliver online learning during the disruption to classes. Had the audio visual facilities been prepared for courts and were they working in the rural areas? How was the Office of the Chief Justice preparing for audio-visual presentations? Why was the Office struggling to meet the 50% requirement for women employees, especially at senior level? Why were targets written in such a way that they did not allow for qualitative assessment of the meeting of targets?
The Deputy Minister presented figures for backlogs in the lower courts, noting that was not the domain of the Office of the Chief Justice. The backlog in the District courts had been 19.73% in April 2019 and was up to 26.2% in April 2020. The backlog in the Regional courts over the same period was up from 57.29% to 68.77%. He believed that was understandable in the context of the courts not functioning efficiently over the past few weeks.
The Information Regulator informed the Committee of the urgent need to bring the Protection of Personal Information Act (POPIA) into full effect. The absence of a fully functional and effective personal information regulatory authority was beginning to have an adverse effect on the country. The number of data breaches in the public and private sectors, the unlawful and unauthorised use of personal information of individuals, cyber-crime and identity theft were increasing at an alarming rate. The Information Regulator had been in the process of filling positions but had been interrupted by Covid-19.
Members asked if the Information Regulator would only be able to handle the additional functions at the end of the current financial year? Could it manage the functions of both the Promotion of Access to Information Act and the Protection of Personal Information Act?
Members requested more detail about how the Information Regulator was involved in the track and trace process related to Covid-19? Was the Information Regulator in contact with the designated judge? Was the Information Regulator involved in ensuring that people’s personal information was dealt with appropriately? Members expressed concern about the lack of access to information that the decision-makers were holding. Was it possible to hold workshops in all provinces in the light of Covid-19? Would information be provided in sign language and in braille so that disabled people could access the information? Had the piloting of a complaints management process started, for how long would it run and, if not, when did the Regulator envisage conducting the pilot? What were the rights of the people who were being tested in public, and even shown on television, with their mouths wide open? Could the Regulator advise the judge on how to deal with that as it was only Black people who were being depicted with their mouths open?
The Deputy Minister of Justice confirmed that the legislative unit at the Department of Justice and Constitutional Development had prepared an 8-page document on the Protection of Personal Information Act that had to be discussed with the Regulator. Unfortunately, Covid-19 had interrupted that process and many people were working at home and the drafters had been working on regulations for the Disaster Management Act.
The Chairperson noted that the Committee would be receiving a presentation from the Office of the Chief Justice (OCJ). He asked the Secretary-General (SG) Memme Sejosengwe to introduce her team from OCJ: CFO – Mr Casper Coetzer, Head of Strategy and Planning – Mr Ithumeleng Malao, Director for Strategy and Planning - Dr Edzisani Netshiozwi, Mr Jakes Jacobs Chief Director: Office of the Secretary-General, Mr Nathi Mncube - Chief Director: Court Administration; Judiciary Spokesperson, Mr Nixon Kadiramwando Chief Director: Information and Communications Technology, Mr Ranako Mabunda - Chief Director: Internal Audit, and the CEO of the SA Judicial Education Institute (SAJEI), Dr Gomolemo Moshoeu.
The Chairperson requested the SG to omit the slides on the Introduction and Overview so that the meeting could be completed by 15:00. He also welcomed the Deputy Minister of Justice, Mr John Jeffery, to the meeting.
Adv G Breytenbach (DA) stated that she had been through the documents and they were completely outdated and irrelevant as they did not deal with the Covid-19 virus and how OCJ was going to deal with the issue going forward. It made a mockery of the work of Parliament because it was pretending that there was no issue. She recommended that the OCJ go back to the drawing board, redraft the plan and indicate how it would deal with the situation going forward. The current presentation served absolutely no purpose and was making a mockery of the work of Parliament. She saw no point in engaging with the document until it addressed the contemporary issue.
Adv S Swart (ACDP) said that he had raised the same issue at the Chief Whips Forum. The Speaker had addressed a letter to all departments requesting them to update their presentations so that they included an indication of how their budgets were going to be adjusted. Committee Members were encouraged to engage with all departments to ensure that they had given consideration to the revised situation. There was a procedural need to briefly look at the existing appropriation budget but the time could not be spent addressing the outdated plans. Committees had limited time and he did not believe that it was wise to spend significant time on strategic plans that he knew were going to be changed significantly.
Mr W Horn (DA) agreed with Adv Breytenbach and Adv Swart. The only way in which OCJ remotely acknowledged the challenges the country faced in the light of Covid-19 was on slide 42 which addressed eLearning modules. A strategic plan could never be set in stone. While he understood the comprehensive and complex processes that a department went through to prepare the strategic plan, one was living in “the new normal” i.e. a Covid-19 era. One could not pretend that nothing that had happened in the world and the country since February/March 2020. The presentations could not be accepted in their current format in his view.
Mr R Dyantyi (ANC) welcomed the introductions by the OCJ but he differed from Adv Breytenbach and Mr Horn. The plan presented in February/March 2020 could not be changed because that was before Covid-19. They could not do their own thing outside of the approved budget. He hoped that the OCJ would indicate what the management team would review in the strategic plan and in the performance plan in the light of Covid-19. That was what the Committee had to listen to. OCJ could not re-do its plan but it could add addenda in the light of the changes. The team had to indicate which areas had been heavily affected by Covid-19 and then they should come back in September and present their revised plans. He completely disagreed with a mindset that said the plans were outdated. Not everything was outdated. It was not outdated at the time of submission. OCD should have a separate page showing the changed position.
Ms J Mofokeng (ANC) agreed with Mr Dyantyi’s position. The Committee had to give the entity an opportunity to present and the team should say what they would change. The Committee could not shut people out without hearing what they had to say and it could not waste time. That was not right.
The Chairperson determined that the team from OCJ could go ahead. He had been advised that by July 2020 departments would have to prepare adapted programmes. He suggested that OCJ should make its presentation and the Members could make their inputs. OCJ could be requested to come back again and present the changes, but the original budget and plan had to be approved by the Committee.
The SG stated that she had heard the conversation but the presentation was in line with compliance requirements. The Department of Planning, Monitoring and Evaluation (DPME) had indicated that there would be time to revise the plans and National Treasury had indicated that it would come back to departments with a revised budget. OCJ Exco had already begun looking at necessary revisions.
Briefing by Office of Chief Justice
Mr Itumeleng Malao, Chief Director: Strategy and Systems, made the presentation. He explained that all government departments were required to adopt a new approach to strategic planning and had to focus on outcomes and impact. The impact that OCJ wished to achieve was quality and accessible justice for all.
The presentation highlighted various outcomes and targets over the five-year MTSF:
- Effective and efficient administrative support: 80% Percentage of staff trained in line with Workplace Skills Plan (WSP)
- Improved court efficiency: 90% finalisation of quasi-judicial matters within prescribed timeframes
- Enhanced judicial education and support: 550 judicial education courses
It also unpacked all the Outcomes, Outputs, Performance indicators and targets for 2020/21.
Mr Casper Coetzer, CFO, presented the financial report. The voted budget was R2.717 billion. The core functions received 81.3% of the budget.
Risks and Mitigations were presented by Mr Malao. A major risk was an inability to fully capacitate the OCJ and that would require a reprioritization of budget to fund critical posts.
Adv Breytenbach asked what had been done to reprioritise the budget to accommodate the virus, what were the particular challenges and how did the OCJ plan to meet the challenges. How did it intend to ensure access to justice by the citizens? What precisely were the courts doing as cases had been postponed? Covid-19 cases were being postponed to July and later, so what were courts doing? What was going to be done in respect of the backlog of cases in the courts and, particularly, what was going to be done about the Covid-19 cases that were extending the backlog exponentially?
Adv Swart said that he appreciated that it was the original plan. He reminded the meeting that the Committee had raised the issue previously that Parliament, and the Speaker had indicated the previous week that she wanted to meet with the Chief Justice and the Head of Courts. That was where the questions lay. A lot of the questions about the ability of the courts to operate were beyond the OCJ. The main concern was the increasing backlogs because the courts were not sitting. He asked when civil and criminal trials would re-commence. A massive number of people were being arrested for what was, in his view, trivial offences and that was adding significantly to the backlog because people were being fined for stepping outside five minutes after curfew, etc. The fines meant that people would gain a criminal record, so people would be contesting the fines issued. He appreciated that much of that would occur at the Lower Courts but it was something that OCJ would also have to consider.
Adv Swart noted that vacancies would have to be re-considered. The SG had said that National Treasury was engaging about the budget. In the Chief Whips Forum, Members had been asked to specifically engage on the changes that departments foresaw to their budgets. The Committee needed to consider the present budget but also what would have to be changed and that would impact directly on the risks and mitigation.
Mr Horn responded to Mr Dyantyi who had commented on the kind of a mentality that led Members to question the presentation. If one did not question, it was an ostrich mentality. Members of Parliament had an absolute duty to enquire what the departments would be doing going forward.
In relation to the backlogs that had been raised by Adv Breytenbach and Adv Swart, he would have hoped that the OCJ in its role of providing support to the judiciary, would have accurate data on how many criminal and civil cases that were on the roll for hearing in April, May, June and July would not be dealt with. If they had not collated that data, the Committee had to appeal that this data be collected at all levels of the courts, including the Supreme Court and the Constitutional Court although they were going virtual, and that had to be reported to Parliament. There were different definitions of a backlog and Parliament had to be informed of the definition used in determining the figures. He also requested that the Committee be informed as to the period of time between when a trial-ready civil court case was enrolled in court and when it would be heard. That went to the heart of access to justice. Only then could OCJ facilitate planning to create additional court hours to deal with the growing backlog. How many additional judicial officers would be needed? He pleaded with the OCJ to run with that baton.
Mr Horn hoped the OCJ had already determined what could be done in terms of the current matters. Covid-19 related court dates were not being issued for a day or two in advance but for July 2020. That had to be questioned. Had the OCJ engaged with the Ministry in terms of what could be done safely in the courts at level 4 and also in preparation for level 3? The OCJ had to advise the ministry on what else could be done. Had the Enhancement Committees met virtually? If not, how would they meet and how was OCJ going to facilitate the meeting of the committees so that the collective could work on a way forward?
Mr Horn had noted that the South African Judicial Education Institute (SAJEI) was contemplating e-learning modules delivered on virtual platforms so that judicial education did not come to a standstill. What progress had been made? Were they considering presenting courses on a virtual platform?
Mr Horn referred to a slide showing the Supreme Court of Appeal (slide 23). The photograph shown was not that of the Supreme Court but a photograph of the Free State Legislature. Sadly, it was an indication of how inappropriate the presentation was.
Ms W Newhoudt-Druchen (ANC) asked about the focus areas. How would those be implemented, especially with regard to women, youth and people with disabilities? How would all areas be covered, especially with Covid-19 in mind? Had the AV facilities been prepared and were they working in the rural areas? How was the OCJ preparing for audio-visual presentations? Why was the OCJ struggling to meet the 50% requirement for women employees, especially at senior level?
Ms Mofokeng said that she had been covered on the backlog in the courts. Were the special commercial crimes courts - that the Committee had been told would open - going to be opened and in which provinces would they be opened? Regarding Covid-19, how many courts were closed and how many were operational? The issue of the backlog was very important and one needed to know, as Mr Horn had said, what the backlogs were because the OCJ needed to know whether courts would open for five days or seven days a week. That would impact on the budget. Had OCJ developed partnerships with non-state anti-corruption institutions as it had said it would be doing?
Mr Dyantyi appreciated Mr Horn. He was well looked after in the Free State with the lowest number of Covid-19 cases. It was not the same in the Western Cape.
Mr Dyantyi noted that that, naturally, the presentation was about wishes and prayers of what the OCJ wanted to do but the verdict would come in September/October 2020 which would apparently be the time when Covid-19 reached its height. The OCJ had a Covid-19 off-ramp. Did the team see an opportunity to jumpstart the IT project? There would not be a better opportunity. Would the OCJ go back and look how to jumpstart the IT project?
He added that he was worried about the quality of the outcomes and the impact – using numbers for targets did not determine quality. He wanted to see a measure of the quality of the outcomes and the impact that the outcomes would achieve. He wanted the OCJ to think more deeply about targets and their impact so that one could look back and see the impact that had been achieved. Ticking the box that outcomes had been achieved would not be good enough.
He asked about the magic in the 2% increase of measures. What was scientific about a 2% increase each year? Regarding Adv Breytenbach’s point about the risk, he would say that Covid-19 was itself a risk. For example, for judicial sessions, certain things could not be done because it would depend on the Magistrate’s Commission. In the past two months the Commission should have interviewed and appointed magistrates but had not happened. The Commission had not even met. The OCJ had to go back and indicate in a clearer way what risks would emanate from Covid-19, and how those would be mitigated.
Adv H Mohamed (ANC) addressed the roll-out of specialised crime courts in the provinces. What would the OCJ measure of the performance of those courts be on the new indicator? Would it be norms and standards in terms of their primary duty? The logistics of identifying the courts would be the task of OCJ but the performance would be partially the responsibility of the Department of Justice and Constitutional Development (DoJ&CD) and partially the responsibility of the National Prosecuting Authority. What would be measured?
Considering the impact of the lockdown, Adv Mohamed asked what the OCJ’s view was on the request that legal practices be declared an essential service so that trials could be heard by video conferencing. Had any work been done in that respect with the partners of OCJ. His concerns about risks had been covered by his colleagues.
Ms Sejosengwe indicated that she would respond to concerns about Covid-19 as that was on the top of everyone’s mind. The OCJ had a plan for the management of the pandemic. Subsequent to the declaration of a national disaster, various directives had been issued, and so had the Chief Justice and Heads of Courts issued directives. The OCJ was supporting those processes, including the emergency procurement of personal protective equipment (PPEs), health requirements and other requirements by the National Disease Institution. The OCJ had set up a national committee linking to high and superior courts to convey information. As the leadership in the organisation, the team had been working on the impact of Covid-19. The DPME had contacted OCJ and informed it that there would be directives regarding how departments would have to revise operational plans and the Annual Performance plan. The Covid-19 committee met on a weekly basis and had issued circulars, procured all the PPEs and sanitisers, etc and directed courts how to address social distancing, etc, assisted all the judges to ensure that they had software to undertake remote courts, such as Microsoft Teams. Some courts had started: the Constitutional Courts and the Gauteng High Courts.
Some staff were going into the office. Exco went to the office every other day to ensure that everything was on track. Each unit determined who was needed in the office. 43% of the office staff were going in every day and the rest were working from home. Exco was reviewing its plans but National Treasury had yet not indicated the percentage of the budget cut. That was not included in the presentation as the presentation was in compliance with the documents lodged with Parliament. She added that the procurement of certain private protector equipment (PPEs) was more difficult than others. Temperature scanners were in use and people with high temperature were not allowed into courts.
Concerning the meeting with the Chief Justice, the SG informed Members that the Committee Secretary was working on a meeting date. Letters had been exchanged and the Chief Justice had indicated his availability. The ball was in the court of the Portfolio Committee.
Mr Coetzer, responded to the questions on finance. He explained that, until the OCJ knew the exact budget cuts, it could not change the Annual Performance Plans and targets. However, it had re-prioritised internally a portion of the budget, i.e. the goods and services allocation, to provide for PPEs, etc. There might need to be an increase to pay for the additional requirements for IT, including hardware. For the present time OCJ was covered by the budget.
Dr Moshoeu confirmed that SAJEI was looking at delivering the training of the judiciary virtually. She had a draft plan that would be discussed with the chief magistrates the following day. SAJEI would be engaging with the Chief Magistrates within a week. The Institute had developed material to assist magistrates who were dealing with the Covid-19 cases as well as children’s cases. She had received positive feedback about the information. The Institute was working on online material while working on a fully fledged online system. Some lessons had been put online and SAJEI would be using Microsoft Teams because it had appropriate capability. She had noted the comments about the quality of the outcomes. She would look at the outcomes and provide feedback.
Ms Sejosengwe reminded the Committee that the Chief Justice had issued directives as to how courts should function during the lockdown and he had delegated authority to the heads of regional courts to deal with applying the directives in the context of each court.
Mr Mncube concurred with Adv Swart’s statement that the Chief Justice did account at the end of each year so that any issues pertaining to the backlog were for the Chief Justice to report on. However, he pointed out that when the lockdown had started, the superior courts were about to go on recess until 16 April 2020 so the backlog was not as severe as it had been with the magistrates’ courts. As indicated, the Chief Justice had issued directives and each head of a superior court had issued his or her own directives. The directives were available on the OCJ website. The Judge Presidents worked with the OCJ when issuing directives. Some Divisions such as the Eastern Cape were still finalising their plans while other Divisions had completed that process and the Chief Justice would be able to provide information on those plans.
He explained that OCJ could only respond to superior court issues. Specialised court issues were a matter for the DoJ&CD. The only superior court impacted by the virus was the Polokwane High Court which had closed for a short time, but all superior courts were open at that time.
Mr Mncube agreed that it was an opportunity to fast track the court modernisation programme but it would depend on the infrastructure and OCJ was looking into that. Piloting would carry on in the third quarter, so that was on-track. OCJ had started with testing in both courts in Gauteng.
He added that the National Efficiency Enhancement Committee (NEEC) sat twice a year and usually sat in May and November so that would still be an opportunity to discuss case-flow management. The nine Provincial Efficiency Enhancement Committees (PEECs) sat four times a year – at the beginning of the year, in April, June and September, or as required. There was no indication that the meetings would not happen in 2020.
Ms Sejosengwe stated that her earlier comments had covered the questions about compliance with Covid-19 requirements in courts. OCJ had ensured complete compliance. She informed Adv Mohamed that she had not caught the gist of his question about the measurement of performance at a court. She acknowledged that Covid-19 became the primary risk in affecting the operations in a department.
Adv Mohamed explained that he had been referring to the roll-out of the specialised commercialised crime courts and how the performance in those courts would be measured: Would it be the usual measure of the court statistics or how would the court performance be measured?
Mr Ncube replied that the OCJ did not have specialised courts. They were lower courts and that was an arrangement between the NPA and DoJ&CD.
Adv Mohamed clarified that his enquiry was around the measurement of performance of the court but if that were not the business of the OCJ, he would hold the question for the Committee meeting with DoJ&CD.
Mr Mabunda informed the Committee that there was a pandemic risk register that was constantly being refined and that would be absorbed in the strategic and operational risk register of the OCJ. The risk profile would be the outcome. The pandemic risk register would include risks such as an inability to hold face-to-face meetings because there could not be physical contact, cyber risks from the access of OCJ documentation by staff working from their homes and so on. The cyber risk register would inform the main risk register.
Mr Mabunda also responded to the question on partnerships between the OCJ and NGOs dealing with anti-corruption. There were formalised structures with the NPA and other stakeholders with regard to collaborating on the anti-corruption fight. A coordinating committee had been established. There were relationships with NGOs but it was usually on a case-by-case basis that affected certain role players. For example, if the work related to supply chain management, service providers would work with OCJ on the particular issues.
Ms Sejosengwe stated that the Legal Counsel opinion that civil courts be opened for trial was in line with the Directive by the Chief Justice who had delegated the authority to the Judges President to make the determination for the courts that they were in charge of. The opinion had been noted by the OCJ but the matter was in the hands of the Judges President. Legal practitioners should liaise with the Judges President. She noted the issue raised by Mr Horn about the photograph.
Mr Mncube said that the registrars were dealing with cases of taxation, default judgements and warrants of release and so, in that area, they would be able to meet the targets and there would be no backlogs in that area. Warrants of arrest were addressed within a day and forwarded to the correctional facilities where the detained people were kept. He did not foresee challenges in that area.
The Chairperson stated that he was concerned about the inclusion of the wrong picture in the presentation. One could ask what else was wrong in the presentation. Presentations to Parliament had to be thoroughly edited and checked. In addition, the strategic plan did not make clear what lessons had been learnt from previous MTEF and how those lessons had been incorporated in the current strategic plan.
Ms Sejosengwe noted and accepted the criticism around the picture. She had not meant to convey the wrong message. She assured the Committee that she checked the text before anything came to Parliament. She would have to look at lessons learnt from the previous METF and provide a response to the Committee. Concerning the struggle to meet the target of 50% women, she noted that it was a struggle in each and every department and organisation and was dictated by the recruitment processes and outcomes but women in OCJ had increased from 37% in 2018/19 to 43% in 2019/20.
The Chairperson stated that he had two Members who had additional questions.
Adv Breytenbach asked about the Judicial Services Commission (JSC) that had to provide a report to Parliament within six months of the year-end and which had to include information on the Judicial Conduct Committee as well as information on the registerable interests of judges. Where could she find that information?
Ms Newhoudt-Druchen’s question about how the focus areas of youth, women and people with disability were being addressed had not been answered.
Mr Mncube responded to the question by Mr Dyantyi about the quality of outcomes. He agreed that outcomes remained a wish or something that OCJ aspired to. The OCJ could only evaluate at a later period whether the outcomes had been achieved or not. Outcomes were crafted in a broad sense – they were not like outputs.
The Chairperson asked how the Committee would be able to evaluate the OCJ.
Mr Mncube said that OCJ would review the strategic plan every two years and present a report that outlined the achievement of the medium-term strategic framework.
The Chairperson stated that that process was not acceptable to the Committee.
Mr Dyantyi commented that it was a nice shortcut but it was not going to work.
Ms Sejosengwe stated that the report on the Judicial Services Commission had been done and would be submitted as soon as the Chief Justice had signed it off. It had been impacted by Covid-19. All the relevant information had been reported as required by the law. She committed to submit it online as soon as the Chief Justice had signed it but assured the Committee that she had a draft report. She had commented on women but the youth target was 30% and OCJ was at 34%. OCJ was on 1.06% on disability against the government target of 2%.
The Chairperson invited Deputy Minister Jeffery to make some remarks.
Remarks by the Deputy Minister of Justice
Deputy Minister Jeffery emphasised that the Appropriation Bill was the one introduced in February 2020 before the lockdown started. It was a bureaucratic process to address that budget but it was what had to be done. The Minister of Finance would address the adjustments for Covid-19.
The OCJ only dealt with high courts and DoJ&CD would deal with lower courts when it presented. The previous day he had been given the backlog figures for the lower courts. The backlog in the District courts was 19.73% in April 2019 but was 26.2% in April 2020. The backlog in the Regional courts over the same period was up from 57.29% to 68.77%. That was understandable in the context of the courts not functioning efficiently. When any person in the court tested positive for Covid-19, there were a lot of repercussions. For example, in Cape Town, the criminal magistrate’s court had had to move across the road because an orderly had tested positive.
The Chairperson had not seen Ms Maseko-Jele’s hand and invited her to speak.
Ms N Maseko-Jele (ANC) informed the Chairperson that she always had trouble gaining access to the meeting and asked him to look into who was denying her access. She wished to follow up on the issue of employing 50/50 male/female. The Department had to report on that at the next meeting. If there was a problem in the recruitment, the OCJ had to be assisted to deal with the issue.
Adv Breytenbach requested to make a statement and was granted permission by the Chairperson.
Adv Breytenbach stated that she got the feeling that the Committee was receiving a perfunctory report. Mr Horn had asked a question about a photograph and the response was that it had been noted. She had asked what the courts were doing and was told that the answers were on the website of the OCJ. She had asked about the report of the JSC and was told that it was ready but had to be signed off by the Chief Justice and the Committee would get it when OCJ was good and ready. The JSC report had not been submitted since 2014. It was not good enough. The reports were merely a perfunctory matter to get through. Members were spoken down to and told to go and look on the website. It was simply not good enough.
The Chairperson noted the comment by Adv Breytenbach. He said that there would have to be a follow-up meeting with OCJ as a number of issues were not ready, especially around Covid-19. The executive team had to do work on the Covid-19 adjustments and there had to be a meeting to deal with operational issues. The Committee needed to agree on a virtual meeting with the Chief Justice so that those issues that he had to attend to could be addressed with him.
The Committee had three days around the end of May and would be able to fit in a meeting during that time. The Chairperson noted the progress made by the OCJ but there were many issues that it had to address. The Committee had to engage much more with OCJ at an operational level, and also with the Heads of Courts.
He noted that it was time to move on to the meeting with the Information Regulator.
The Committee agreed to arrange a virtual meeting with the Chief Justice for later in the month.
The Chairperson welcomed the Information Regulator, Adv Pansy Tlakula. He invited her to introduce her team and to make the presentation.
Briefing by the Information Regulator (IR)
Adv Pansy Tlakula, Chairperson, IR, wished all nurses well on International Nurses day.
Adv Tlakula introduced the Chief Executive Officer Mr Marks Thibela, Adv Stroom-Nzama full-time Member of the Regulator, Adv. Collen Weapond full-time Member, Mr Sizwe Snail ka Mtuze part-time Member of the Regulator, and Mr Prakash Narismulu: Chief Financial Officer
Adv Tlakula said that the IR was in the process of filling positions but had been interrupted by Covid-19. She requested that the Committee expedite the replacement of Prof Pistorius on the IR. Prof Pistorius had resigned the previous year and because the budget was so small, the IR needed all hands on deck to help with drafting documents and so on.
She said that the urgent need to bring the Protection of Personal Information Act (POPIA) into full effect could not be over emphasised. The absence of a fully functional and effective personal information regulatory authority was beginning to have an adverse effect on the country. The number of data breaches in the public and private sectors, the unlawful and unauthorised use of personal information of individuals, cyber-crime and identity theft were increasing at an alarming rate. Until the remaining sections of POPIA were brought into effect, the Regulator was unable to enforce compliance and victims were deprived of an appropriate remedy. It was for that reason that the Regulator had written to the Minister of Justice and Correctional Services to request him to bring the remaining sections of POPIA into effect during the 2020/21 financial year.
Adv Tlakula noted that the Deputy Minister of Justice seemed to have been assigned to work with the Regulator. However, the issue of Covid-19, working online and sharing of personal information, even in the tracing of those who had come into contact with a person testing positive for the virus, violated the rights of people. The case during the online parliamentary meeting the previous week was a case in point. People continued to violate the right to privacy during this time. Post-Covid there would be lot of tracing etc, and so the right to privacy would continue to be an issue. She requested the Committee to assist in getting the Minister of Justice to proclaim the POPIA so that the President could bring the Act into operation.
The Regulator still used the policies and systems of the DoJ& CD. However, it was important for the Regulator to separate from the DoJ& CD. The separation was urgent and would ensure that the Regulator functioned independently, impartially and without fear, favour and prejudice as POPIA obliged it to do. She understood that the budget was tight, especially with Covid-19, but she was concerned that not all funds might be spent in 20/21 because the IR had been unable to appoint staff at the beginning of the financial year.
The Strategic Plan and the Annual Performance Plan was presented by the CEO, Marks Thibela. He reminded the Committee that the appointment of staff was important to the establishment of the Information Regulator. The Regulator had received an additional allocation for the 2020/21 Medium Term Expenditure Framework (MTEF) period as follows: R15 million (2020/21); R25 million (2021/22) and R30 million (2022/23) respectively. The IR would approach National Treasury for more money, even though it understood that there were constraints.
Mr Horn noted that the IR wanted the Portfolio Committee to assist it by advocating to the Minister that the remainder of POPIA be brought into operation. However, the targets in the performance plan suggested that IR would only be able to handle the additional functions at the end of the current financial year, and that was discounting the very slow progress made by the IR in the past and the fact that very few of the targets that the IR had set itself had been met. He argued that there should be more than a readiness plan before the Committee could approach the Minister. They had to be ready to handle complaints. The IR could not still be talking of testing and piloting a complaints system. The target for legal research was to develop a plan in the course of the financial year. Targets should be presented for each quarter. Unless more could be done to convince the Committee that the IR was not still in the process of developing the wheel, it was premature to bring the rest into operation.
Mr Horn noted that Adv Tlakula had referred to the impact of Covid-19 and the way that government was going about tracking and tracing people. He was not going to deal with that as he was pleased that a designated judge had been appointed because the Regulator was not ready. The IR had issued a guidance note but had the IR worked hand-in-hand with the designated judge and provided assistance to the designated judge? The big issue in the months to come, if the virus continued to spread, would be the increasing risk regarding the integrity of the information or data coming from cell phones. Secondly, the stage of de-identification was a concern. Had there been any about complaints regarding personal information and had the IR had any discussions with government or the designated judge about how that should be properly handled?
He noted that in the IR strategic plan was a target for a nation-wide education and awareness programme. Why was the target set so low: between 5% and 10% of the stakeholders had to be made aware of the IR and its functions? Who were the stakeholders? He would have thought that the SA public was the stakeholder. The IR was missing a great opportunity to use the pandemic to raise awareness about the right to privacy. The 24-hour channels were struggling for content and the IR could use those channels to raise awareness about how the right to privacy had to be balanced with the need to curb the pandemic.
Adv Breytenbach stated that she was largely covered by Mr Horn. She asked for more detail about how the Regulator was involved in the track and trace process related to Covid-19. Was the IR in contact with the designated judge? Was IR involved in ensuring that personal information was dealt with appropriately? She was concerned that the Regulator was not sufficiently involved.
Adv Swart asked about POPIA and PAIA (the Promotion of Access to Information Act). He supported the speedy implementation of POPIA but he also had concerns about capacity. He spoke from his personal experience with Covid-19. It was disgraceful that it had been reported in the media that he had tested positive before he had even taken a test for Covid-19. There could be very serious breaches of privacy in relation to Covid-19. There had to be a balance between the needs of public health and privacy. He was similarly concerned about the lack of access to the information that the decision-makers were holding.
Adv Swart said that it was important to flesh out the memorandum for the take-over of PAIA from the South African Human Rights Commission (HRC). He would also ask the questions of the HRC when it appeared before the Committee. Would the IR have the capacity, especially as the team was asking for more money, and knowing the history of the constraints faced by the HRC that said at every appearance before the Committee that it was not getting support from government departments?
Mr Swart’s concern related to the Covid-19 issues, the data information and the modelling issues. Over the weekend, the newspapers had said that that information was not going to be released because there was a concern about panic. He was not saying that PAIA was not operating. If one were to apply for that information via PAIA, he was sure that one would get it but the fact was that information on which decisions were being made was not readily available to the public. He understood the need for an effective operation of PAIA and therefore had a specific question for the IR: Would the IR be able to exercise the requirements of POPIA plus PAIA, given its constraints?
Ms Mofokeng congratulated Adv Tlakula on coming a long way in building her “Department”. Phase one had already been executed and 13 positions had been filled. The CEO had said that 18 positions were outstanding but as she understood it only nine people were to join the IR. When was the IR going to get the18? The key risk factors did not show that the IR was lacking many things. In the full establishment of the IR, there was a staff shortage and so on, and also Covid-19 was a risk. These should have been listed so that the Deputy Minister could hear about the risks. She had personally attended an IR stakeholder engagement herself and was of the opinion that one day had not been enough time for stakeholders to ask their questions. The IR needed a budget for stakeholder engagement as people had to know more about that “Department”.
Ms Newhoudt-Druchen appreciated the presentation. In one of the slides it said that the IR would hold workshops in all provinces but, in the light of Covid-19, was that still possible? If not, what would those workshops be converted to? Would television be accessible to people like her who required sign language and sub-titles? The IR had said that all information was to be in all languages. Was the information to be provided in sign language and in braille so that disabled people could access the information?
Adv Mohamed referred to the protection of personal information. Had the piloting of a complaints management process started, for how long would it run and, if not, when did the IR envisage conducting the pilot? Did the presenter have a slide on the current establishment versus the total establishment? If not, could that information be provided so that the Committee could see the full picture?
Ms Maseko-Jele emphasised the issue of speeding up the transfer of PAIA. She applauded the Deputy Minister as Adv Tlakula was interacting with him. The issue of speeding up was necessary and the Deputy Minister should assist. She applauded the work that had taken place in the stakeholder meetings. She recalled that there had been issues between the IEC and the IR and the IEC had been trying to align matters. Had the two entities found each other?
Ms Maseko-Jele stated that testing during Covid-19 was a concern. Public testing was taking place. What were the rights of the people who were being tested in public and even shown on television with their mouths wide open? Could IR give any advice to the dedicated judge in that matter? She noted that the public testing did not happen to everyone. Some were tested in private but others were done in public. Why was that?
Adv Tlakula stated that in terms of section 114 of the POPI Act, once the Act had come into effect, public and private bodies would have a year to comply with the requirements of the Act. That was why the IR was of the opinion that the Act had to be proclaimed and then the IR could test its systems within that one year. Covid-19 had certainly brought privacy to the fore but the IR had not contacted the designated judge. The IR had come up with the Guidance Note immediately after the regulation on tracing was passed and had sent it to the Minister and the designated judge. IR was not consulted when the regulations were drawn up, not even on the sections on data, de-identification and the security of information, etc. There was no reference to POPIA in the regulation. Immediately after the regulations were passed, the IR had been the first to issue a press statement on the importance of access to information and had implored the government to be pro-active in providing information. The Committee Members could see that if they went to the IR website. The IR would be contacting the HRC, the custodians of PAIA, to find out how many requests it had received in respect of POPIA.
Adv Tlakula stated that it was a chicken and egg situation. With its little money, the IR was doing as much as it could. The work had to be done and then the money would follow. It was very frustrating that the Act had not been proclaimed. On the international stage, the IR was asked what SA was doing but had to say that the Act had not yet been promulgated. She added that everything that Mr Horn had asked about was in the Guidance Note on the website. The IR would present a report to Parliament on the privacy issues that Parliament should be aware of in its work. She told Mr Horn and the Deputy Minister that POPIA had to come into effect and the IR would have a year to put it into effect. At the moment there was impunity for those abusing personal privacy.
She added that it was black people whose mouths were open all the time while being tested. One had to say it the way it was. But nothing could be done, excepting the creating of awareness.
Mr Thibela responded to the questions relating to administration. The IR was piloting the complaints system as it wanted to see that a complaint could go through all stages and also to check the turnaround times. Manual processes had to be in order before the IR could set up an automated system. For example, it would show how many employees would be needed in the process.
He stated that the IR had requested National Treasury for an additional budget. The IR had been given a certain amount and the money was sufficient for 18 positions. As the IR had to create its own support structure, most of the positions would be in administrative support but six would be in the core area. The process of appointments had been interrupted by Covid-19. The IR had advertised 10 posts at the end January 2020. The team had shortlisted 10 persons and another batch of eight positions had been advertised in March 2020. The closing date had been changed several times but it was anticipated that the positions would be filled by the third quarter. Then the Regulator would have to consult with Minister of Finance about further positions that the IR identified. The IR would engage with National Treasury about going to stage 3. Unfortunately, stage 2 had not yet been finalised because of the Covid-19 situation. Plans had been revised and the offices were being deep-cleaned as required by the Minister of Labour so that the members and staff could return to the offices.
Mr Thibela responded to the number of stakeholder engagements. The number of engagements had been reduced to nine so that they could target the highest forums. The IR had looked at the Premiers Forums and had sent letters to the Premiers of the provinces asking to meet with legislative executives and executive mayors but there would also be additional stakeholder engagements at the level of the public.
Adv Weapond responded to the issue of people being tested in the public as raised by Ms Maseko-Jele. The IR had noticed three things. Firstly, there were constraints to doing awareness about people’s rights to their personal information. Secondly, there was a disjuncture between the government effort and the IR regarding the Covid-19 effort. Thirdly, there were financial constraints at the IR but the IR would look at other ways of playing a role. The IR had written the Guidance Note and was preparing a report to Parliament about the oversight role that it should play during the pandemic. As his Chairperson had said, the role of the Regulator was ongoing.
He assured the Committee that the IR had the ability to exercise the mandates of both pieces of legislation. He commended the leadership of his Chairperson as she kept making the point that the Regulator was all things to all people and even in areas where the IR did not have specialist skills, the Chairperson had directed the officials to do some work and to cover the gaps. When the IR received the new budget in the phase 3 engagement, it would be able to make an assessment of how much it could do with the limited budget given to the entity.
Adv Weapond emphasised the fact that after the Act had come into operation, there would be a one-year mandatory preparation for implementation and then there was a discretionary opportunity to extend the preparation period for a second year.
Adv Stroom-Nzama addressed Adv Swart’s question of whether the IR could handle the functions of both PAIA and POPIA. The IR had been having hand-over meetings with the HRC so that there was a smooth transition of the functions of the PAIA from the HRC to the IR. The HRC had previously submitted a budget to National Treasury as it had huge financial constraints. She added that the IR had appointed the Executive that would handle PAIA, and other positions would be filled in the next phase.
She responded to the question of Adv Mohamed about the management system. The IR did not have an electronic system. The IR had a manual system that had been developed by a service provider and that was what the IR was about to pilot. The IR had finalised the Complaints Report which outlined all the complaints received and that would be made available in the Annual Report. The manual system would be piloted and then the electronic system could be developed.
Adv Tlakula stated that the colloquium with the IEC had been very useful. The two entities had identified sections of the Electoral Act and the Electoral Commissions Act that had to be adapted. The IEC had agreed to bring the amendments to Parliament. She pointed out that on payment of a fee, the voters roll could be made available to any person. That could not be. It was not right as there was a lot of private information on the voters roll. The IR had done what it had to do. It had only to monitor the IEC to ensure it did what it had agreed to do. She promised the Committee that the IR would get in touch with the designated judge. The IR would consider how to make contact with the provinces, such as through webinars.
She told Mr Horn that the media had said that if it was not a “man bites dog” story, it was not worth covering. IR had engaged with the media but she thought that the IR should approach the public broadcaster to see what role it could play in ramping up awareness. The risks were at a high level but would be unpacked when the team met to discuss them. It was the intention of the IR to develop pamphlets in plain writing and the Regulator would determine ways to contact disabled persons, such as a braille pamphlet.
Adv Tlakula insisted that POPIA had to come into effect because it would give the Regulator wide-ranging powers. The Regulator could appoint an enforcement committee and the decisions of the enforcement committee could only be reversed by a court of law. Once the Act was enacted, there would be no non-compliance as there were powerful mechanisms for enforcement.
Sizwe Snail ka Mtuze stressed that every month the team had been holding stakeholder meetings and not only on a high level but also with the poorest of the poor to convey the message. He agreed with Mr Horn that Covid-19 had been a missed opportunity. While the IR had been awaiting the proclamation of the Act, it had read in the Sunday papers that the court was giving consideration to appointing a designated judge. He believed that the regulation could have been better thought out and that it would have been more appropriate for the Regulator to be involved than a judge. Nevertheless, more measures could be taken to raise awareness through radio and other modes of communication. It was not too late. Something could still be done.
Mr Dyantyi agreed that the Regulator had to be made ready while it was flying. It did not work to try and get everything ready first. On that basis, he proposed that the Committee should push for an urgent meeting with the IR, the HRC and the Minister to discuss the handover. The IR would have to present a hand-over roadmap. The HRC could not hang onto what it did not have a right to have. He wanted the Minister at the meeting as he was concerned that , even after six months, the Minister had not formally responded to the Regulator. The Deputy Minister’s interaction was important but it was not a substitute for the Minister as the Deputy Minister could not submit the Act to the President. He did not want to miss the opportunity to finalize the matter. The longer the Act was not proclaimed, the more things could go wrong.
Comments by the Deputy Minister of Justice
Deputy Minister Jeffery responded to the issue of the coming into operation of the remaining sections of POPIA. The President had already brought sections of the Act into operation, i.e. those sections that set up the Information Regulator. The Chairperson of the IR had written to the President on 21 January 2020 and asked for implementation of the remaining sections of the Act on 1 April 2020 but she should have approached the Minister and not the President as the Minister had to advise the President. On 4 February 2020, Adv Tlakula had written to the Minister and the matter had been sent to the legislative section which pointed out that it was a complicated piece of legislation. POPIA had 115 sections and had a schedule that affected four other Acts. Processes had to be put into place to determine the impact of that legislation on other legislation.
The legislative unit had prepared an 8-page document and indicated issues that had to be discussed with the Regulator. Nothing was particularly serious. The issues were more administrative and operational so the legislative staff would have to meet with the administrative staff of the IR. Unfortunately, Covid-19 had interrupted that process and many people were working at home after the Covid-19 regulations. In addition, the drafters had been working on regulations for the Disaster Management Act. There was a need for officials to meet and to discuss the issues. He added that section 114(4) of the Act provided for a process for the take-over of the functions from the SAHRC.
The Deputy Minister agreed with the need to implement the Act and he hoped that the situation could be addressed as soon as possible.
Adv Swart asked if the Deputy Minister had any idea when it would be implemented as the Act had been passed in 2013 and at that time the Deputy Minister had been actively involved in drafting the Bill as a Member of Parliament. He was sure that the Deputy Minister would like to see it implemented as quickly as possible. Indications were that there was an eight-page document and discussions would have to take place, which would be hampered by the restrictions on meetings, etc. The IR had made an urgent plea and the Committee needed to respond. It had to exercise oversight in the matter. He was supportive of Mr Dyantyi’s proposal that the Minister be part of the next meeting.
Deputy Minister Jeffery responded to Adv Swart saying that the next step was a meeting between officials of DoJ&CD and the IR , even if it were a virtual meeting, and he would push for that meeting. Once the issues had been resolved, it would be ready to go to the President to bring those sections into effect. It was a priority and he did not envisage it taking too long.
The Chairperson told the Deputy Minister that the Department could have its meetings but Parliament would set its own timeframes. Immediately after the budget vote for the security cluster, the Portfolio Committee would have a meeting with the IR, the HRC and the Minister where the Minister would have to report that the matter of POPIA was with the President and state when it would be finalised.
The Chairperson stated that South Africa was wrong to think that things could be done incrementally in order for things to work. One could not do things using an incremental approach. The way the issue was being handled was concerning. The issue had to be dealt with in the context of the Fourth Industrial Revolution and the threat of cybercrime. With a budget of R28 million, the IR was going to face the same challenges that the Public Protector was facing. The IR would spend a lot of time in court as once all the sections were operational, it would have to fight very strong interests. Things would not immediately be solved once everything had been delegated to the Regulator. There was a need for the security cluster, and the relevant departments, to address the matter. 18 employees, or even 27 employees, could not deal with things as if it was just an administrative issue. It was a highly problematic matter.
The proposed meeting after the budget was a good beginning but the country needed a bigger and more strategic approach. Personal information was a big issue. For example, exposure of personal information could cause banks to collapse, and even the economy could collapse. He hoped that by the next meeting all issues of implementation would have been addressed. However, Parliament would have to address the bigger issue of budget and the capacity of the Regulator. There would be no point in giving the authority to the IR if there was no budget. With R4 million, the IR could not even take two cases to the High Court. Parliament had to take the matter seriously.
The officials should resolve the issues within a matter of weeks and there should be a way forward. The Deputy Minister should not raise further problems at the next meeting. POPIA had to be taken to the next level. For example, one did not know what threats would be posed in the local government elections in the following year.
The Committee needed to address the vacancy in the Information Regulator created by the resignation of Prof Pistorius. The applications had been received but the Committee had been interrupted by Covid-19. It was necessary to have a sifting process and then start with the interview process. He did not want to simply comply – he wanted to give the IR a person who could take the IR to the next level.
The meeting was adjourned.