SIU & Information Regulator 2021/22 Annual Performance Plans

Meeting report

The Chairperson welcomed the Special Investigating Unit led by Adv Mothibi and his team. Today the Committee would be dealing with the Special Investigating Unit (SIU’s) annual performance plan and budget.

Adv Andy Mothibi, Head, SIU, greeted the members of the Committee and thanked them for the opportunity to present the SIU’s annual performance plan and the budget. He was joined by his colleagues. When his colleagues presented their part they would introduce themselves. Members of the executive committee of the SIU were present.

Briefing by SIU on APP and Budget

Adv Mothibi presented the SIU’s annual performance plan for the 2021/22 financial year. The presentation was divided into various sections. The presentation detailed the strategic overview, environmental scan, outcomes and outcome indicators, SIU outcomes and key strategic focus areas, measuring performance and institutional risks. The SIU had four programmes which were measured. Programme one was administration. Programme two was investigations and legal counsel. Programme three was market data analytics and prevention.

Mr Andre Gernandt, Chief Financial Officer, SIU, presented the SIU’s budget overview for the 2021/22 financial year.

Funding Model

The current funding model has over the last few years consistently proven that it is not sustainable. In the many State institutions, especially in the Local Government Sphere, where municipalities simply do not have the funding to pay the SIU for the investigation services rendered.  The SIU has, together with the Department of Justice and Correctional Services, engaged with National Treasury during the third quarter of 2020/21, and will further engage in the 2021/22 financial year, with a view of amending it to be more sustainable for the SIU, and the Government Institutions that it is servicing.

Budget Overview  

This part of the presentation detailed an overview of the 2021/2022 budget and MTEF estimates. The total expense of the three programmes for the 2021/22 financial year was R907.8 million. The debt outstanding per province was also detailed. The grand total of debt outstanding was R530.8 million.

(See Presentation)

Discussion

Adv S Swart (ACDP) congratulated Adv Mothibi and his team on the incredible work done in fighting corruption and recovering ill-gotten gains. Whilst welcoming the presentation, he wanted to touch on one or two aspects. He had expressed this view last week when the Minister and the Department presented. He had concerns about the reduction in the SIU’s funding. This was made worse by the level of debt that was owed to the SIU. The amount of R531 million was totally unacceptable. The Committee needed to take clear note of this in its report. It may well be that, in addition to the recommendations that Adv Mothibi had suggested in approaching the Auditor-General, the Committee might want to call to account the other Departments that owed the SIU funds. This obviously impacted on their work. At the moment, while the SIU had a reduction in its budget it was indicated that the SIU was in a relatively good position. In other words, the SIU was able to fund the addition of staff requirements, the addition of forensics but when it reached the 2023/24 outer year it enters a deficit. He wanted an indication from the SIU that if the ongoing debt was not collected what would the impact be? It was a massive debt that had increased from an outstanding previous amount and only R75 million collected. This could well be aggravated given the fact that other Departments were facing constrained finances. This was the first issue that he wanted the SIU to unpack. The Committee needed to be aware given the very important role that the SIU played.

He then touched on a few specific issues going forward. He wanted an update on the PPE procurement steps that had been taken, that matters that were referred to the NPA and how that memorandum of understanding with the NPA was working? Given the fact that there were concerns in the past, was that working better when it came to prosecution of matters? He wanted an update on the operation of the Fusion Centre. The Committee was impressed with the operation of the Fusion Centre last year, this time, when the possibility of PPE-contracts fraud was raised and the Fusion Centre had already taken steps together with the possibility of real-time audits. With the vaccination procurement, distribution and administering process were there similar checks being put in place? This was worth R4 billion of expenditure going forward. There was broad concern about the possibility of corrupt activities in that regard. There was concern with regard to the procurement, distribution and the administering of vaccines. Was there a similar action or was the Fusion Centre looking at that? Was there a possibility of trying to prevent corruption taking place? He appreciated that fact that there were legislative amendments proposed. The Committee would like the SIU to expedite that because of the challenge with proclamations. He provided a practical example. It was reported in the media about alleged corruption in a High Court application relating to the Turkish powership tender, an estimated R200 billion contract over 20 years. There was a High Court application with affidavits. The Department of Mineral Resources and Energy said that it would oppose it but what does the SIU do when it saw that a High Court action had been lodged, with an affidavit, with serious allegations of corruption? Was the SIU able to start an interim investigation, pending a possible proclamation, given the massive extent of that contract?

Ms N Maseko-Jele (ANC) appreciated and recognised the work done by the SIU. She recognised the progress in their work. She discussed the issues of risk. If the Committee did not address the issues of risk that, had been mentioned by the team, then the work of the SIU would not be impactful. She said Adv Swart covered her on the issue of debts.

She discussed the risk report plans. The SIU indicated that there was an inability to financially sustain SIU operations. She had read something from the presentation. The SIU said that it had escalated the issue and complaints with COGTA. She requested that the SIU give the Committee a report on that in connection with the debts, particularly of municipalities. All of the threats were very serious.

She raised the issue of inadequate management of employees’ performance through an output-based system. It was in the presentation. She was worried. Why had the SIU not yet signed all of those performance management contracts? The SIU had recognised it as a risk. She wanted the SIU to comment on that matter.

She then discussed the failure to provide proper monitoring and evaluation services on organisational performance. The SIU said it was going to develop compliance risk management plans (CRMPs) and develop compliance monitoring plan. Considering the seriousness of the work that the SIU were doing these plans should have already been in existence. What was the delay on this matter? For her, it was one issue that should have already been dealt with. How could the SIU go forward without having these compliance risk management plans and compliance monitoring plans?

She commented on the inability to provide appropriate ICT services across the SIU? This was a very important matter particularly when the SIU wanted to make sure things were done in line with the modernisation of South Africa’s institutions. The Committee commented that other institutions that reported to it also needed to speed up in this area particularly in the time of Covid. Communication would be very slow if this matter was not attended to. She appreciated and thanked the team. She realised that this was one important risk. She said that the SIU needed to address all of these issues in order to make sure that there were speedy recoveries on the monies that were lost by the Government. Government needed that money back. The Committee indicated to the NPA that it needed to work hard on that area because the country was facing a very difficult time when it came to the issue of finances. The Committee should request that the SIU also work hard on that area in making sure that the monies were recovered so that South Africa could go forward as a country.

Mr W Horn (DA) thanked the SIU for the presentation. He also wanted to discuss the risks. He said it was a pity that time ran out and that the Committee could not be fully addressed on the risks issue. He discussed the ballooning debt owned by different Government departments. He noted Adv Mothibi’s closing remarks that the SIU was not able to mitigate those risks. The Committee had seen ‘this movie’ play out every time the SIU appeared in front it. He was not fighting the SIU regarding this issue. He was sourcing whether the SIU really believed, that in a continuous engagement with Treasury and the different entities and Departments who were not paying them, that that tendency was ever going to change? He asked if the Committee should consider a legislative amendment? To enable Treasury, in a more tangible way, to ensure that from the budgetary allocation of the Departments that the SIU was paid what was owed to the SIU. He had doubts as to whether the ongoing engagements were ever going to be really effective. He said that in respect of the other issues even though there were mitigation plans there was a worry that there would be a continuation of those risks being ever present.

He noted with concern the issue of ICT as was referred to by Ms Maseko-Jele. The difficulty was that the ICT was a recurring issue that the Committee was being addressed on every time the SIU appeared in front of it. The same was true of forensic investigations. In the past the Committee had been informed on the in-house programmes, learnerships but yet the SIU was still in the situation where forensic, and possibly other professional services, remained a risk issue for the SIU. He was focusing on the internal issues of the SIU. He raised a concern that the internal audit, once again, did not seem fully capacitated. He appreciated that the SIU had received a clean bill of health from the Auditor-General it must be added that a good audit outcome was there only to assist an institution. To not have a properly functional internal audit system ultimately exposed the SIU. Lastly, he raised an issue that was identified as a risk. The cases before the special tribunal seemed not to proceed as was envisaged. There was a long history, even in this Committee, that for many years the Committee exerted pressure through its oversight for the Special Tribunal to be re-established. It was a bit of concern to note now, that in diplomatic terms, that there were ongoing engagements with the Judge President of the Special Tribunal on the availability of presiding officers. Of course, this was coded language for cases being delayed. The Committee needed further unpacking of that issue. What was the current trend? Were the cases before the Special Tribunal already on the backlog roll? What were the main contributing factors? What was then the efficacy of the Special Tribunal in dealing with the cases brought before it?

Adv G Breytenbach (DA) said that her concerns over risk and mitigation were covered by the previous two speakers. She saw that the SIU was still planning on purchasing a building. Was this still the case? Given the developments with regards to Covid and off-site working and people working very effectively from home using digital platforms could this expense really still be justified? Was it necessary? Was there some innovative way to work around that and perhaps use those funds for a more essential purpose? She wanted Adv Mothibi’s views on that matter.

She then discussed in-house legal services. She agreed with the introduction of such a component but noted that the SIU said that the current practicalities did not allow for the recruitment of additional capacity right now so the operational model remained outsourcing litigation to members of the bar. She said that must be exorbitantly expensive. She wanted the SIU to inform the Committee how that balanced out. Could the money used to outsource be more productively used to capacitate that unit? She said there was a term used that she was not entirely familiar with. The term was disruptive innovation. The unit spoke about how a market analytics project was disruptive innovation. She wanted more information about that.

Dr W Newhoudt-Druchen (ANC) commented on the slide that stated South Africa was one of the 66% of countries that were below 50. Did South Africa remain below 50% but 50% of what? The slide said South Africa was number nine. She asked number nine out of how many countries? The next slide said out of 44. She was not sure what that meant? Was South Africa the most corrupt or the least corrupt? What were the statistics really about? She then discussed the impact of Covid. What has been the impact of Covid? Was Covid not an institutional risk? If not, why not?

She said there might not be enough time but maybe a written explanation could be provided on the investigations into the Master’s office and the State Attorney’s office. She wanted an update into how far the investigations were. She discussed the hotline used for people to report. Was it used optimally? What were the statistics with regards to that? What was the current vacancy rate? Did the SIU have any challenges with recruiting? Had the SIU had any challenges so far?

Mr R Dyantyi (ANC) appreciated the progress and future planning by SIU. He had some concerns that were outside of the APP and were issues that he wanted the Committee to think about. He welcomed what Adv Mothibi presented but he was missing a slide that was not prepared. The presentation stated that Covid had forced the SIU to do things differently. Every month the President was being briefed. This was something that was not there before. Every six months there was a particular reporting cycle. That was why he said there was a slide missing. Covid has forced the SIU to work in a new way. That was missing in the performance areas with regard to this new way being informed by Covid. The SIU needed to move away from the old ways of doing thing. Both in the narrative and in the plans he saw. Whilst this was being said as a positive thing the SIU remained in a comfort zone of the old kind of planning. That disjuncture did not sit well with him. He made that as an overall point across all of the planning. If Covid taught the SIU new thing, then it should be able to make that its practice going forward. If the Committee received quarterly performance reports that were more budget related was it not proper for the Committee see the SIU more often given the kind of work that it did? In every term in Parliament the Committee should be able to have the SIU appear before it to follow through on not just the budget issues but these progress actions and so on. He left that up to the Chairperson but it was an idea that he was pushing so that the Committee could stay close to the SIU on quite a number of things.

He highlighted one of the things worrying him. The SIU said that it had moved very quickly in how it did things. He was interested in the implication of that speed. The SIU was moving quite quickly despite the same capacity that was there to produce reports, actions and interventions. Maybe the issue was not with capacity because with the same capacity the SIU was able to produce timeously and with speed. He understood that to be a serious lesson. It was something that was doable and it did not relate to Government adding another hundred thousand of capacity. In the SIU’s creativity, forced with this pressure, and under Adv Mothibi’s leadership it had been able to do things differently. The SIU was able to do business unusual. These were the things it was able to do with the capacity that it had. In what way has that speed compromised the quality of the kind of reports that were produced? He was interested in that. The SIU needed to share with the Committee if that speed had influenced the quality of the reports that it had produced? The best way to see that was through a slide that detailed how the timelines had improved. The slide would indicate either that the SIU was seeing more litigations based on the speed of reports that it was producing. If the SIU put all of the information together it would be able to see that. He provided an example of the Tribunal.

With regards to the Tribunal cases how many cases had the SIU produced? And out of those how many challenges did the SIU have? Was it related to the SIU’s internal capacity or other issues? He was really interested in these kinds of questions.

He was interested in the lessons that Covid was teaching about how to do things differently. He was no longer interested in ticking the box. The SIU was forced to do things in the way that it did and everyone seemed to be happy. This was opening up another door for the Committee. This applied not only to the SIU but could be applied to others. This was something the Committee needed to pick up and latch onto so as to not go back to the comfort zone. The SIU had already got onto this lane. The Committee wanted it to stay in this lane of how things were done without the SIU demanding more resources and more capacity when it was able to do these things. He was coming from a different angle so that the Committee could challenge the SIU more and push the envelope. Capacity was not just about numbers. It was the style and the leadership that was provided in doing these things.

The Chairperson asked Adv Mothibi if the position of Deputy Head had been filled? He said there was a question by Adv Breytenbach about the necessity of the SIU procuring the building. If the SIU was to think otherwise and not procure the building, then what would be the impact of that postponement be in terms of the budget? The last time he checked the SIU spoke about a deficit of R173 million in 2023/2024. Most of it would have been influenced by the issue relating to the procurement of the building. Did the SIU have an audit committee? The Committee would like to speak to the audit committee chairperson when the SIU came back either for the quarterly reports or when the Committee dealt with the BRRR reports. The Committee would like to have the report of the audit committee and of the Chief Risk Officer. When he read the SIU’s report last night there had been some targets that had been removed. He wanted the SIU to speak about those targets. Why were those targets removed?

Adv Mothibi responded to the question of outstanding debt. The SIU would appreciate the Committee’s intervention in whatever manner. The SIU had done what it could in the circumstances. The SIU had engaged with Treasury so that it could write to these state institutions. With regards to the credit management of State institutions the SIU would like to engage the Auditor-General so that the State institutions could be held to account. The SIU was of the view that if the debt remained unpaid then at some instances the SIU would need to invoke the Intergovernmental Relations Act just ultimately short of court actions. The SIU used that as a last resort. If the SIU enforced the payment of debts against State institutions through court processes, it would like to leave that to the last.

Adv Mothibi discussed the PPE investigations. The SIU was pleased to report to the Committee that it had met the last reporting cycle. It was a six-weekly report. The SIU submitted the report to the President. The latest was submitted on 30 April 2021. He gave the Committee the highlights. The SIU would come back and report in any way the Committee wished. The SIU would be able to report in detail on the PPE investigations. To date, a combination of finalised matters and ongoing matters count up to 94%. The SIU had made significant progress and impact. As the SIU investigated there were still new matters being reported. He had told the team that the SIU could not close new matters that were being reported. Otherwise, the SIU would be failing in its mandate. Although the SIU wanted to close these investigations it could not ignore the new allegations that were being reported. That resulted in investigations that were yet to commence. As of 30 April, that was at 6%. That was compared to the big amount that it had done. As of 30 April, the amount of irregular contracts or allegations relating to irregular contracts of PPE stood at R14.2 billion. That was the contract value.

 The SIU was going to talk about the list of Special Tribunal cases. This was the contract value and in appropriate instances the SIU took it to the Special Tribunal. At the end of the adjudication, just and equitable orders were made. The SIU would then recover the appropriate amounts. The SIU was pleased to report that it had made this significant progress. The SIU had shown outcomes which for the purposes of today it would not go into detail on. The SIU was in a position to present to the Committee at an appropriate time.

He then discussed the Fusion Centre. The Fusion Centre continued to be a centre that really added value. In most of the cases had it not been for the Fusion Centre collaboration and operation the SIU would have probably taken longer to return some of the outcomes. The typical example was the PPE investigation in the Gauteng Health Department. The SIU had been able to follow the money and freeze some of the monies with the assistance of the Fusion Centre and in particular the FIC. Those investigations where the SIU found criminal evidence or evidence pointing to criminal acts were referred to the NPA. The SIU also incorporated the Hawks. The SIU worked collaboratively to ensure that the matters were addressed and investigated on time. The SIU had really seen value. In some of the ongoing investigations the SIU had also seen the value of the Fusion Centre. The SIU was currently busy with the Department of Education investigation in Gauteng with regard to the PPE irregularities. The SIU was continuing to see the same value that the Fusion Centre had given it in the Health investigation. The SIU would be pronouncing on some of those outcomes which it had pronounced on in the report to the President. The investigation was still ongoing. In response to Adv Swart, he said that the Fusion Centre continued to show the value that it was created for.

He then discussed the vaccination programme. He was pleased to report that there was an Inter-Ministerial Committee that was led by the Deputy President. The SIU was part of the operations part of that Committee. The SIU had been called upon to share some of the experiences in the PPE procurement irregularities with the view of adding on the risk mitigation plan around the vaccination programme. The CRO has been part of that. The SIU was pleased to say that it had shared its views and that risk mitigation plan was put in place in that process. It continued to be monitored. He discussed the possibility of an interim investigation. It was possible that the SIU could do that. The SIU continued to do that with the State institutions. Where there was no proclamation yet there was a provision in law that the SIU could engage with the State institution and conclude what was called a secondment agreement so that it was able to investigate these matters.

With regards to the litigation process, the SIU also monitored some of the litigations that were going on in the State institutions. The SIU approached where it could be a party of interest so that it could assist the State institutions. The SIU reached out so that it could be part of that litigation.

He responded to Ms Maseko-Jele’s questions around the institutional risks that were indicated in the presentation. As the SIU did the strategic assessment it did also conduct the risk assessments. Most of the risks could probably be similar to the previous year’s risks. This was because as operational risks and strategic risks the nature of the SIU’s operation was such that those operational risks would not change in nature. The SIU ensured that the mitigation plans were always there to ensure that those risks do not realise. The SIU was satisfied because it did have the risk management teams led by the Chief Risk Officer. They did monitor the risks and the SIU had a risk committee that was independently chaired. That chair sat on the audit committee to continuously report on these risks. He asked the CRO to assure the Committee on the concerns raised around the risk management process.

Mr Thulani Mkhungo, Chief Risk Officer, SIU, said that in terms of the SIU’s framework it identified risks every year. It first reviewed the previous year’s risks. When the SIU found a risk the model stated this was something that could occur, it identified the risk and looked at what could prevent it from achieving its objectives. In this case, these were not things happening yet but the SIU was putting measures in place so that these risks did not occur. These risks were being well managed at the moment. The risks were reviewed quarterly to make sure that they were still up to date. When the SIU responded to the Committee formally, then he would provide more information in terms of the risk to show what were the risk triggers and what impact it would have on the organisation if it happened. This would be provided so that the Committee could analyse and understand the matter better. He said that it was working effectively.

He responded to the question of whether the hotline was being effectively used. The hotline had not fallen under risk. In 2020/21, the SIU had received 667 complaints or reports compared to 2019/20 where there was a total of 272. That meant people were starting to trust the hotline more and were reporting the allegations. The whistleblowing hotline was also effective. The SIU would compile the risk report and present it to the Committee when the risk committee report was requested.

Adv Mothibi said that in the formal report the SIU would indicate the RAG status which was the red, orange and green status of these risks. Just so that the Committee could see how these risks were appropriately mitigated.

He referred to Ms Maseko-Jele’s question about the performance agreements. The SIU was busy signing those agreements. The SIU acknowledged that it was a delayed implementation. It was delayed as a result of engagement and consultation with the recognised trade union. The SIU has since agreed that it was something that needed to be done. The Committee had indicated that it needed to be done. The SIU ensured that the templates that were required were put in place. All the executive members would have signed agreements. The SIU had been using the operational agreements that would be translated into performance agreements. All the provincial heads will have performance agreements and the ones below them. The SIU would do that. The SIU would submit the timelines to the Committee within which all these agreements would be done. That could be submitted within the next seven days because the SIU did have a plan.

He responded to Mr Horn’s question about the risks. The risk committee and the CRO would submit a formal report.

He discussed the issue of the ballooning debt. The SIU would really appreciate if there were legislative changes, whichever were appropriate, in enabling National Treasury and enabling the SIU through the legislative amendments that would be put through.

He discussed the issue of internal audit capacity. The SIU had just made an appointment regarding the insourced audit capacity. It started in April. The SIU was a stage where the status quo of capacity remained. The audit function would continue to be able to audit. The SIU would like to ensure that the audit had its own resources. This was the plan that the audit committee was monitoring so that the SIU reduced outsourcing of audit capacity as it was quite costly.

He responded to the concerns about the cases in the Special Tribunal. There had been tremendous progress in that space. The cases that had been enrolled or issued at the Special Tribunal had surpassed the SIU’s expectation. The Chief Legal Counsel would expand on that. This also related to the PPE outcomes. As of 30 April, the SIU submitted matters to the Special Tribunal to the value of about R126 million. The Chief Legal Counsel would correct this amount. It was quite a significant amount. Some of the key successes included seeing the outcome of the Beitbridge litigation. The SIU defended that matter and it was ruled in the SIU’s favour. The next step was to ensure that the Special Tribunal cancelled the agreements and that the monies, particularly of the Department of Public Works, that were spent were recovered. The challenge that the parties there had mounted was that the Special Tribunal had no jurisdiction and that had been adjudicated. The SIU defended this matter and it was up to the Special Tribunal to rule.

The matters related to the PPEs were some of the critical examples were the SIU had various orders in favour of the SIU where it had cancelled the contracts. Another example was brought by the previous MEC of Health in Gauteng. He sought to challenge the SIU’s outcomes. This related to the concerns over value that Mr Dyantyi had raised. As the SIU investigated it ensure that it also produced the outcomes that were value based. The outcomes were legally sound and would stand up to any challenge. After a lengthy litigation process the court ruled in the SIU’s favour. That court had settled the issue. At the level of the executive authority there were responsibilities and duties that the executive authorities were enjoined with. Accountability started from officials up to the accounting officers, or accounting authorities, up to the executive authorities. There were legal provisions related to all of these levels in terms of the PFMA and Constitution. He was quite vocal to his colleagues that as the SIU turned around the investigations speedily it should never compromise on the quality. He asked the Chief Legal Counsel to give the Committee assurances with regards to these matters.

Dr Jerome Wells, Chief Legal Counsel, SIU, gave a brief overview of the matter and added some further stats. 69 matters had been issued, to date, in the Tribunal with a contract value of just over R7 billion. In terms of PPEs, there were 15 matters to the value of R365 million presently pending with the Tribunal. To date 13 preservation orders had been handed down by the Tribunal. Notably, the Tribunal has also issued forfeiture orders. Two forfeiture orders had been submitted this year totalling in excess of R44 million. Both of those matters were presently pending. An appeal had been lodged against both of those matters. There were a number of other cases where the SIU had also frozen monies that had been deposited into accounts by various service providers for officials of State institutions. Those accounts were frozen. He highlighted the importance of the Tribunal. The number of cases finalised, despite the covid conditions that prevailed, was much more significant than what the SIU experienced in terms of litigation in the High Court. Similar matters had been issued in the High Court. One or two of those matters had been finalised over a period of a financial year. The matters that had been issued in the Tribunal he confirmed that 13 orders had already been issued over a period of eight to 12 months. The significance of all of this was that this was helped by the judges that had been appointed in the Tribunal. The cases were actively case managed. The time periods for matters to be finalised were much, much shorter and the impact was greater. He said if there were any specific questions to deal with any of the issues raised he would answer them.

Adv Mothibi responded to the question raised by Mr Horn. It was in the institutional risks part where the SIU indicated that as a risk the inability to expedite and timeously conclude civil matters. The SIU had to identify that as a risk linked to the strategic outcome of improving or increasing the recoveries. The SIU was stating a risk related to that could be the inability to conclude its civil matters. That could be a factor of various matters including engaging with the Tribunal President if there were issues there. It was important to note that the Tribunal was independent of the SIU but the SIU did, if there were issues, engage with the Tribunal. Those risk mitigation plans were meant to ensure that the risk itself did not materialise. At the moment the risk had not materialised. As Dr Wells had presented to the Committee the SIU continued to see the value of the Special Tribunal. He thanked Dr Wells for correcting the figure given to the Committee. He apologised for understating the value of the PPE matters that were in the Special Tribunal. The SIU was pleased that the Special Tribunal was proving to have value for what it was meant for.

He responded to Adv Breytenbach’s comments on the SIU’s plans of purchasing a building. That was in the plan but through the observation of the fiscal constraints the SIU sought not to pursue that with the timelines that it had before. At the moment the SIU was seeking to optimise the space that it currently had. The SIU was aware that going out to purchase a building would probably be costly and it would not bode well with the current fiscal constraint. There had been a plan from the SIU’s finance department to make provisions for this based on some of the engagements that were had with the Department of Justice. There were plans to go forward. The Department was looking at creating a justice precinct. All of the entities reporting to the Department would probably have to make some input into that. This was still at an early stage. The SIU was still to have further engagements with the Department. The extent to which the SIU would need to make a provision would be elaborated further by the CFO. He asked the CFO to provide assurances to the Committee on this matter.

Mr Gernandt discussed the cash resources that the SIU was able to build up over the last few years. Despite the challenges in the recovery of debt, the SIU was able to end the year with R741 million in the bank. A big portion of that figure will be used to fund the deficit over the next three or four years. To answer the question of financial sustainability, the SIU did have enough cash to sustain itself over the next three to four years. However, the SIU did see that the funding model needed to change to address the systemic deficiencies. Included in the figure that the SIU reserved, which the SIU would motivate to Treasury to retain that cash surplus, was still a figure of about R150 million. The SIU found it prudent to reserve that figure in order for Treasury not to take away the cash resources of the SIU. How the funding model would change over the longer term was that from a legislative point of view there was a conflict of interest. The SIU was currently invoicing the State institutions. The SIU was pursuing a model where National Treasury could either centralise the invoicing themselves or with the Presidency under that budget allocation. This would be done so that there was no conflict of interest where if the SIU investigated somebody then it had to rely on them to pay the SIU. Those were the discussions that the SIU was having with Treasury. Treasury indicated that over the next five years it was unlikely that the SIU would receive an increase in the actual grant allocation. The SIU was of the view that in the bigger scheme of things that the SIU should not be, as a fraud fighting entity, cut and that their budget should actually be increased.

Adv Mothibi discussed the in-house legal services. He agreed with Adv Breytenbach and said that it was still the plan. In accordance with the SIU’s legislation those SIU members who were legally qualified and had the right of appearance could appear in the courts on behalf of the SIU. The SIU would like to make sure that it built up that capacity. Already in Dr Wells’ space, the SIU had made a few appointments. The SIU was beginning to see that those appointments were ensuring that the SIU sped up the litigation process. At this stage where the SIU needed counsel appearance it still went through the State Attorney and appointed counsel on behalf of the SIU. The SIU did take the point that going forward it should build up its capacity to ensure that it did it in-house.

He then provided clarity on the term ‘disruptive innovation’. The SIU benchmarked some of the terms and going forward it would unpack some of the terms so that it made sense. Disruptive innovation was terminology that was used particularly in the technology space or in the innovation space generally. The SIU wanted to innovate such that it disrupted the trends of corruption, the trends of maladministration and ensure that it ultimately brought down those trends. The innovation was around the SIU’s business processes and the IT space.

Mr Dyantyi noted the SIU’s remarks that Covid had changed the way it had done things. Mr Dyantyi asked where in the APP that was unpacked. He responded that the SIU had probably not gone into detail. Under programme one, under administration, on those targets there was an output indicator saying that ‘Implementation of an approved ICT Project Plan for Data Analytics Capability’. He said that under 2017/18, 2018/19, 2019/20 and 2020/21 it was a new indicator in the APP. With the permission of the Committee the SIU could outline in detail what the ICT plan was about. The ICT plan should be the one that really enabled the SIU to do this innovation so that it was ultimately able to assess whether it was as disruptive as it wanted to be to those corrupt maladministrators. The SIU did have a plan that it could unpack to the Committee.

He discussed the scoring with regards to the internal environment. The scoring related to Transparency International and some of the scoring organisations. They normally scored South Africa out of the various countries in Africa and internationally. That scoring indicated where South Africa was globally and continentally. The SIU was aware that it could not alone influence the scoring of South Africa. That could be done as a collective. Recently, in the JCPS the SIU was given the responsibility to do research on what Transparency International took into account when they scored the country. The JCPS gave a mandate to the ACTT that it should actually come up with a plan for the country on what it could do to improve on this scoring. This part in the APP was to ensure that the SIU continued to understand what its role was in contributing to the collective plan under ACTT, JCPS and was now to be driven by the National Anti-Corruption Strategy. The SIU would continue to make sure that it was part of that.

He responded to the question about the current vacancy rate. He said he wanted the SIU’s Chief Human Capital Officer to give that number because he did not want to give the wrong number. The SIU was satisfied that it really closed it with all of the recruitment that had been going on it had reduced its vacancy rate significantly.

He responded to Mr Dyantyi’s concern about the missing slide which related to the issue of the new way of doing things. The SIU acknowledged with appreciation the view that it had done its best. The SIU continued to do its best. He urged his colleagues that the SIU could not revert back to the previous ways of doing things where the SIU almost ran a reputational risk of taking long to investigate. The SIU could not slide back to that. The SIU had said to itself that it had set a standard with the Covid-19 investigations and that standard needed to remain with other investigations. Mr Leonard Lekgetho, the Chief National Investigations Officer, had a review planned. Mr Lekgetho would review all other investigations on a regular basis the same way it was doing with the Covid-19 investigations. The Covid-19 investigations were going through review processes. In the review processes the SIU checked how the investigations were doing, what resources were needed, how it was that the teams could be assisted?  The SIU wanted to ensure that it produced outcomes that were supported by evidence. The SIU wanted evidence-based outcomes so that it continued to make the impact that was required. The SIU monitored the cases that were at the Special Tribunal and monitored the outcomes that came from the investigations. He said that the observations made by Mr Dyantyi were probably accurate in principle. It was not about headcount but rather how the SIU managed its business. The SIU had really disrupted itself. The SIU noticed that if it did things better, if it monitored the investigations and identified the gaps, from a resource point of view, what was required for the investigations, did its timesheets appropriately then that had shown the SIU that effective monitoring and management was important. The SIU needed to ensure that it demonstrated to the public that the SIU could do it. He believed that the SIU had managed to do it with the PPE investigations, as massive as it was, but the SIU needed to make sure that it did not slide back. The SIU had identified some of those needs from a resource perspective that it needed to augment. He highlighted the importance of forensic accounting. The SIU wanted to draw out the balance sheet and the income statements of State institutions like Transnet and Eskom. The SIU wanted the capability to make sure that it interpreted that as speedily as possible so that it was able to follow the flow of money. The SIU did have accountants but they were few compared to the mammoth work that was facing it. Covid had changed the way SIU did work. The SIU would be able to unpack that to the Committee the next time it appeared or as early as any time the Committee wanted the SIU to submit.

The SIU would also submit the ICT plan. That plan would indicate how the SIU will support the investigations going forward. The SIU did take into account that there was a need to turnaround its investigations as speedily as possible. It was important that the SIU gathered evidence in a legally defensible manner. It should be credible evidence that the SIU could defend in a court of law or any place like a disciplinary process where a State institution wanted to discipline accountable members. The evidence was also referred to the NPA and the Hawks. The SIU had end to end control in the civil litigation space. The SIU wanted to make sure that as it investigated and gathered evidence to challenge and set aside the contracts that the evidence was defensible. To date the SIU had seen that most of those orders that had been issued were issued in favour of the SIU. The well-known scooter case in the Eastern Cape, the OR Tambo door-to-door had been ruled in the SIU’s favour. There had been various cases in KwaZulu-Natal around the blankets matter. All of those matters were ruled in the SIU’s favour. He also mentioned the cases relating to the Department of Health in Gauteng, in the North-West and in various provinces. The SIU was pleased that its investigators did the investigations with the speed and credibility that had to be attendant to the evidence that was gathered. The SIU continued to urge its teams to investigate with speed because the Special Tribunal had been put in place to adjudicate on matters emanating from SIU investigations. The SIU needed to continue to make sure that it added value. The SIU would not be going back to the comfort zone. He assured the Committee that the SIU would keep on its trajectory and ensure that all the senior managers, all the members of SIU were quite aware that its business unusual. This was to ensure that the SIU made the impact that the Committee and members of the public would like to see. The SIU wanted to continue to contribute to the wider fight against corruption and maladministration. The Deputy Head position had not been filled yet. The SIU was in the process of ensuring that it would advertise and that it was filled appropriately. With all the recruitments that had been going on the SIU wanted to make sure that the operations area was filled up appropriately. There was a need to ensure that that position was also filled. The SIU noticed the deficit in the outer years. The surplus that the SIU had built may look like quite an amount now but it can be seen that in the outer years it would go down. That was why the SIU wanted to push the payment of the debt so that it could be addressed. The SIU wanted to ensure that in the outer years the SIU was able to sustain its business. The SIU did have an audit committee. He would pass on the message that the Committee wanted to interact with the audit committee. The Committee would recall that at some point during the SIU’s appearance the chair of the audit committee also appeared. The message would be passed on that the audit committee needed to continue to prepare the report that it could independently present to the committee. The CRO had taken note that the Committee would like a formal report from the Chief Risk Officer.

The Chairperson thanked Adv Mothibi and his team. It was a very good report that indicated that the SIU was hard at work. South Africa had prioritised the fight against crime and corruption. The Committee was pleased that the SIU was hard at work to ensure that crime and corruption were fought. It deprived resources that should be at the disposal of Government to fight hunger and inequalities in the country. He noted a few issues before this part of the meeting closed. One of the things that stood out from what the SIU presented, which would be good for Parliament and Cabinet Ministers, was the jurisprudence that it was developing through cases that dealt with issues of accountability. If it could be packaged in such a way that even with the inductions of MPs or MPLs, Cabinet Ministers, mayors, MECs, Premiers that it should be an area that was focused on. The Committee thought that the judgement in the Gauteng case might be ground-breaking. It would be important that there were wider workshops that were held to explain what this accountability means as far as executive authorities were concerned and even members of Parliament were concerned. People were not aware, in much detail, about this. It was important that the SIU either made a booklet or held workshops around the issues of accountability by taking the judgement of the Tribunal as a point of departure.

The Chairperson saw that the SIU was making inroads in the use of robotics in the fourth IR in improving operational efficiencies. The ICT plan, that the Committee would like the SIU to present in detail, needed to take into account the suggestion that was made by Mr Dyantyi that the Committee might need to increase the frequency of meeting with the SIU. One of the first areas that the Committee would want to go into detail with the SIU was the issue of the ICT plans and the use for IR to reduce operational costs and to increase operational efficiencies. It was one area that the whole of Government was grappling with. Everyone was talking about IR, but many did not understand it in much detail as to how it could be leveraged properly. What did it mean to be leveraged properly in terms of increasing efficiencies operationally? He got a sense that when people spoke about the fourth IR they were talking just about automation and mass processing. The Committee would appreciate it if the SIU provided a detailed plan. The Committee would also want to use the SIU’s experiences and the areas where the SIU was a torchbearer. The Committee wanted to use the SIU as a change agent so that other entities of Government could learn from it as to how this issue was dealt with. He proposed that he be given the mandate to write to the Speaker that the Speaker writes to the President because ultimately it was the President that signed proclamations. A proclamation needed to be signed that all the Departments, entities, organs of State and other layers of Government that as of a matter of urgency they need to pay all the outstanding debt. The President took leadership as far as that matter was concerned. He did not think that if the Government was to prioritise the fight against crime and corruption that there needed to be a situation where it was focusing on minimum resources. There was a problem with Governments all over the world. Governments seemed to have given up to the fact that criminals had more resources than them. This was true especially of Governments dealing with organised crime, corruption and illicit financial outflows. He read that the organised crime groups in Japan were more resourced than the Japanese Government. Government did need a change of approach. Corruption was a trigger point and if it could be successfully dealt with then a lot of resources would be unlocked that could deal with the issues of unemployment, poverty and inequalities. As the first point of departure, having an amount of R531 million in debt was too much for a small organisation like the SIU. If most of that debt was recovered, then it would give the SIU the necessary teeth to prioritise the fight that had been prioritised as a country.

The SIU had been promising, with the Department of Justice, that it would bring legislation that was going to deal with some of the issues that it had referred to. The fear was that there were quite a number of organisations like the Public Protector, the NPA and many others who were looking at overhauling their legislations. The later the SIU delayed the more of a problem it was going to be because there was only until next year. That year would be an election year. It was important that most of those Bills that would have a serious impact on its operations, and the survival of the organisation, needed to be prioritised. The longer the SIU delayed the Sixth Administration might not have time to deal with such legislation as some of them were quite bulky. The overhauling of the Public Protector was going to take a lot of time. The sooner the better. The Committee was pleased and encouraged by the work that the SIU did. He thanked the SIU for the report that it had given the Committee. The Committee was going to increase the frequency of the time it had with the SIU and would focus on specific areas of interest to the Committee. Some of those areas were for the Committee to understand such areas better especially the issues of ICT and the fourth industrial revolution. He was much more interested in the SIU’s use of robotics. He thanked Adv Mothibi and his team.

Adv Mothibi thanked the Chairperson and the members of the Committee for their time.

Information Regulator (IR)

The Chairperson welcomed Adv Tlakula and her team. He handed over to the Information Regulator to deliver their presentation.

Adv Pansy Tlakula, Chairperson, IR, expressed her condolences on the passing of Ms Jacqui Mofokeng who was a member of this Committee. She informed the Committee that Mr Mosalanyane Mosala was back. In November last year Mr Thibela, who was the former CEO, resigned from the Information Regulator. The Information Regulator immediately requested that Mr Mosala, who had started with the organisation in 2017, come back. The Information Regulator requested the Department of Justice to second him again. He had been with the Regulator since the beginning of the year. Yesterday, interviews were conducted for the position of the CEO. The Regulator appreciated that its budget had been increased for this financial year by more than 90%. Its communication with the Minister of Finance and National Treasury officials had borne fruit. The budget was still not sufficient but it was appreciated that the Regulator was given an increase. Most of the entities in Government Departments had their budgets cut because of the current financial situation. The listing of the Regulator was a matter that remained unresolved. The Regulator decided to take this matter into its own hands. The Committee would recall that National Treasury had undertaken to look into this matter. The proposals that it had put before the Regulator did not fit the kind of organisation that the Regulator was. The Regulator decided that it should look at this matter itself. After the Regulator came up with a proposal it would table it before the Committee before it was taken to National Treasury. The independence of the Regulator was another issue that remained unresolved. The Regulator was still dependent on the systems and the policies of the Department of Justice. The Regulator had drafted a separation strategy. The separation strategy would require a lot of money to implement. The Regulator was in discussions with the Department because the Department’s IT capability to assist the Regulator to do the kind of things that the legislation wanted it to do was a concern. The capacity of the Department’s infrastructure was also a concern. The sooner the Regulator was able to have its own IT infrastructure the better.

The Regulator appreciated the appointment of a part-time member, Ms Allison Tilley. Ms Tilley’s appointment had increased the much-needed capacity in the Regulator. The Regulator was pleased that the Committee had started discussions on the recruitment of members of the Regulator because the term of four members of the Regulator was coming to an end. It would be good if the new members were appointed before that.

Briefing by Information Regulator on APP and Budget

Mr Mosalanyane Mosala, Acting Chief Executive Officer, IR, presented the Information Regulator’s annual performance plan for the 2021/22 financial year. Mr Mosala firstly detailed the mandates of the Regulator. This included an update to the institutional policies and strategies over the five-year planning period. The strategic focus was also presented. This detailed the updated situational analysis. The presentation highlighted the institutional performance. This included amongst others planned performance, key risks and resource considerations.

Mr Prakash Narismulu, Chief Financial Officer: Information Regulator South Africa, presented the Information Regulator’s budget overview for the 2021/22 financial year.

(See Presentation)

Discussion

Mr Horn said that in the 2020/21 financial year the Committee was informed that the Regulator planned to appoint 41 staff members. Now it was envisaged that 54 staff members were to be appointed. Could the Committee be appraised as to whether the appointment of the 41 staff members in the previous financial year materialised? Was the 54 envisioned to be appointed an addition to those? If not, what was the total staff compliment in this financial year?

He discussed the functions of the Regulator that were going live as of 1 July. What was the recruitment plan in order to ensure that those functions could be properly exercised and fulfilled with immediate effect? Given the obvious need for technical and specialised skills, was an environmental scan done on the availability of that kind of skills within the country? What had been done to prevent a situation where the Regulator came to the Committee and said that the specialised skills needed to deal with the new provisions of POPIA and PAIA functions, that the Regulator had taken over, were not available? In April, it was reported that an online portal for registration of information officers was expected to go live at the end of April. Has that platform gone live? If so, what had been the response? If not, what were the reasons for it not having gone live yet and when was it expected to go live?

He discussed the POPIA functions that would come into effect on 1 July. Whether institutions or individuals acted with intent or only negligently there were some penalties available to the Information Regulator going forward. Would it be that the full might of the law would be used immediately? Or would there be guidance and warning after the first period after 1 July? It was foreseen that 24 public awareness sessions were to take place. A lot had been done to sensitise business and big business specifically. There was still a real possibility that medium and smaller businesses might not yet be fully ready despite the best efforts of the Information Regulator to ensure that everybody was aware of the need to have POPIA plans in place come 1 July.

He discussed the development and plans in place looking forward to the local government elections later in the year. The Committee noted that the Department of Home Affairs had initiated changes to the electoral laws. The Department informed Parliament that those changes were initiated on the insistence of the Information Regulator. It had to do with the manner in which the voter’s roll would be made available to political parties and independent candidates who were contesting elections. He requested that the Information Regulator unpack the reasoning behind this drive a bit further. During campaigning and elections there was a need for a very careful balance between enabling political parties and independent candidates to campaign effectively. Campaigning effectively meant specifically to identify who were registered voters. In South Africa, one was only able to vote in an election if registered. There was an argument to be made that if someone registers to vote then that person opts in, at least initially or in principle, for political parties and independent candidates to make contact with that person. Through POPIA that person would then have the right to inform a party or all parties that going forward they did not want to be engaged in a direct manner by political parties. For the health of democracy and for free and fair elections to take place it was essential of political parties and independent candidates to know who they should be able to engage with. Had the Information Regulator considered the manner in which they had seemingly determined how the IEC must redact identity numbers on voters’ rolls? Could that not result in a situation where the ability of political parties and independent candidates was curtailed up to a point where they were not able to, in a free and fair manner, engage with potential voters in a run up to an election? He asked the Regulator to provide more information on how this manner was approached and the international benchmarking. Had the Regulator looked at how other jurisdictions had been dealing with this matter?

Mr X Nqola (ANC) said that the previous week the Committee, through the Chairperson, issued a statement voicing its concerns over the budget cuts that hinder the execution of mandates of the entities that reported to the Committee. It was worth welcoming when the Regulator presented to the Committee that it got an increase of 90%. The Committee should welcome that. The Regulator directed the increase to the issue of vacancies. That was a key factor in ensuring that the Regulator actually executes its mandate with the necessary internal capacity.

He highlighted the issue of improving access to the services of the Regulator. The accessibility of the Regulator was important to the people of South Africa. The Committee was going to monitor the Regulator’s utilisation of the budget very closely so that it was able to help the Regulator to get closer to what it sought to achieve.

There was the issue of the independence of the Regulator. That was a very critical matter that the Committee needed to take note of. He proposed that when the Committee’s programme allowed that it have an engagement around the matter of the Regulator’s independence. He heard in the report that there was a separation strategy that had been formulated and approved already. There was an issue with the Department of Justice and Constitutional Development. When time allowed the Committee needed to have an engagement around this matter with both the Regulator and the Department of Justice. He noticed programme two was access to information. He found it difficult to grasp the legal balance between PAIA and POPIA in terms of the mandate of the Regulator. The one was the promotion of access to information and the other one was the protection of personal information. He was struggling to see how the Regulator was to balance the two in terms of the mandate it was executing.

Dr Newhoudt-Druchen had a question related to the four members of the Regulator whose term was ending 31 December. She was concerned about these four because all of their contracts ended at the same time so there would be a loss of institutional memory. Why has this occurred? What was the background to these four contracts ending at the same time?

She then discussed the indicators. She mentioned the examples of public awareness and education strategy, awareness programmes, communication and production policy programme. How would those be presented to the public? She was more interested in how people with disabilities would be receiving access to these information programmes. How would the deaf community get information about the Regulator? Last week she read where the Regulator engaged with Facebook and WhatsApp on the exchange of information. Could the Regulator intervene if someone’s information was shared? What was the update with regards to the Regulator’s engagement with Facebook and WhatsApp? She paid fees for a child who was in private college. Last year, she struggled to get the results. When she asked for the results the institution said no according to POPIA they could not give her the information. She believed that if she was the account payer that she should be able to receive the information. The institution said no the information was sent directly to the student. She understood that but the point was that the information was not given to the student. Sometimes the students did not want to fight with the institutions to get the results but the parents could ask the institution because they paid the account. The POPIA Act was not implemented yet to prevent her, as a parent, to get the information. She wanted the Regulator’s advice on the matter. She was not the only parent dealing with this matter. There were also other parents who were complaining about this.

The Chairperson said that with respect to Dr Newhoudt-Druchen’s first question; that should be directed to members of Parliament. That was about legislation and the terms of office. The Committee should be moving towards staggered appointments so that there was not a situation where peoples’ contracts came to at the same time. It was a matter that the Committee should be looking at especially those Committees that dealt with State-owned companies.

Ms Maseko-Jele had a follow-up on the question raised by Ms Newhoudt-Druchen on the issue of awareness. There was a target of 5% in the presentation. What informed the 5%? Was this target sufficient for what the Regulator was going to do? She wanted the team to comment on the implementation of programme three considering the restrictions of movement the country had now for Covid. She wanted more information on the target of information technology analysis that had been removed. Was there going to be another target in 2021/2022 APP to monitor performance because that target had been removed?

Ms Hellen Shube, Executive: Corporate Services, IR, responded to the questions on recruitment. Last year, the Regulator received funding to fill positions. 19 positions were prioritised and were filled by the end of the financial year. However, in the same financial year there were three positions that became vacant at higher levels. Those positions were now in the process of being filled. In the current 2021/2021 financial year, the Regulator prioritised filling 43 positions with the funding it had received. Those positions had already been advertised and the Regulator was in the process of filling them. She discussed scarce skills. The Regulator had difficulty to recruit those positions that were scarce. The Regulator had engaged with the services of recruitment agencies. The Regulator also head hunted prospective candidates that could assist it. That process was currently unfolding. The Regulator should be able to report on progress when it came back to report to the Committee regarding that. It had been a challenge to get people in positions that were scare skills. Sometimes when the Regulator used the services of the recruitment companies they also struggled to get candidates in those fields. The Regulator was progressing and it should be able to report when it came back with regards to how far it had progressed on that matter.

The Chairperson asked what were those scarce skills?

Adv Tlakula asked Adv Weapond to respond and provide information on the areas where the Regulator had battled.

Adv Collen Weapond, Full-time Member, IR, said that the Regulator went on a recruitment drive for the executive for the protection of personal information. The executive had resigned and the Regulator was trying to fil that specific position. The Regulator had struggled immensely to get a person who met that specific criteria. It was quite a specialised skill because that person, to a certain degree, needed some understanding of information technology as well as law and certain other skills. The person needed to be quite agile and flexible. After the Regulator failed through its normal recruitment processes it went on a drive of headhunting but that also failed. That position remained vacant but the Regulator was doing everything it could to correct that process. That was just an example of the challenges the Regulator faced. It was the Regulator’s understanding that because POPIA was new that specific skill might not be readily available.

Adv Tlakula said that the Regulator needed to disclose that it had recruited someone as the executive for POPIA. He had resigned. She discussed the exit interview that was conducted with him. He came from the courts and was a magistrate. He felt that he wanted to go back because the task was too complex for him. The recruitment process of the Regulator showed that as well. It was very difficult. The Regulator went out three times. Twice with the recruitment agency and nothing had come out of it. Internally the two executives, the executive for PAIA and the executive for legal, together with the members were all doing POPIA work. It was proving to be quite difficult to get people who had experience. Even when the Regulator outsourced work and wanted a lawyer to do some work for it and took out requests for proposals, it was quite difficult. The team would discuss the WhatsApp matter later. To get people who were skilled in that area was difficult. The people who did have the skill and were in private practice were doing so well that they would never leave their practices to come to the Regulator. The 1 July deadline was coming and she felt that the practices would focus on that area of work. That compounded the problem as well.

Ms Varsha Sewlal, Executive: Legal, Policy, Research and Information Technology Analysis, IR, added a comment about the issue of technical skills. It was an issue that was not peculiar to South Africa but throughout the world there were very scarce skills in the data information and security analysis field. Even Governments that deployed privacy regulations were also outsourcing these types of requests because it was impossible to afford that kind of skill that was required. When it came to a specific security analysis skill the Regulator would have to look at outsourcing that skill.

She then provided feedback on the online portal. The Regulator worked very closely with the Department of Justice. The Department had developed the portal on behalf of the Regulator. The Regulator was grateful for that however the Department also had resource constraints and the number of staff that they had available to assist. At the moment the Regulator was relying on the infrastructure of the Department of Justice. The Department had developed the system for the Regulator. The Regulator was waiting for the Department to deploy remedies to some of the small problems that arose. The Department assured the Regulator that these were minor problems. The Regulator hoped that in the course of this week that the portal would be live. The Regulator did not have the resources to go out to the market on this and it had to rely on the resources of the Department of Justice. The Regulator hoped to issue a media statement as soon as that portal was up and running. The Regulator had been testing it daily and each time it tested there was another issue that arose. She believed that it would be resolved. The Regulator wanted to make sure of the integrity of the system before it allowed the public to have access to it.

Professor Sizwe Snail ka Mtuze, Part-time Member, IR, responded to the issue of fines. The country was currently in the grace period. As of 1 July, POPIA in its entirety would be of legal force. As of 1 July, data subjects would be able to file their complaints in terms of POPIA and actually get redress in terms of the complaint’s procedure. The Regulator had been taking a proactive stance for the last three years in terms of handling complaints. Once complaints were coming in from 1 July they would be adjudicated. Once they were adjudicated if the responsible party was deemed to have contravened the POPIA in any way then the necessary sanctions would have to kick in. Those would then be on a case-by-case basis.

Adv Tlakula said that in all the stakeholder engagements that the Regulator had been doing it had said when the grace period ends. The Regulator had been saying for the past three years that POPIA was here to stay and that people should put compliance processes in place. Come 1 July there should not be any excuses. All the bodies were given a one-year grace period. The Regulator would have to implement the law because there was a lot going on out there on violating the privacy of South Africa. The Regulator would have to implement the Bill.

She responded to the question regarding the amendment to the electoral law. There was a history behind this. The Regulator had looked at policies and laws. Part of the Regulator’s mandate was to look at whether the laws, policies and legislation complied with the provision of the protection of personal information. The Regulator held a colloquium with the IEC to which members of the Parliament were invited. The late Ms Mofokeng attended the colloquium. The Regulator identified the sections in the Electoral Commission Act which violated the provisions of POPIA. One of those provisions said that on payment of a fee the voters’ roll could be made available to any person. The voters’ roll contained a lot of personal information. Key among the personal information was special personal information like one’s identity number. The voters’ roll contained a number of identifiers. It also contained special personal information that in terms of POPIA needed to be handled in a particular way. The Regulator identified those sections and left it to the IEC to bring those sections in line with POPIA. The IEC then proposed the repeal of the section that said on payment of a fee they could give the voters’ roll to anyone. That section was repealed. There was also a section on publishing the voters’ roll and what information should be published. If anyone got hold on an ID number, then those people could do so much with that ID number. The Regulator then came up with a proposal that the IEC should redact the ID numbers. Her understanding was that that redaction would apply on the voters’ roll that the IEC was going to publish because they had to publish. The certified voters’ roll would have all of the information. Her understanding was that the voters’ roll that would be given to political parties will contain all of the information. She thought that the redaction would only apply to the voters’ roll that was going to be published. If that was not the case, then this was a matter that had to be followed up with the IEC. The Regulator was executing its mandate and had to protect the privacy of the voters. In doing that it had to balance between privacy and the free flow of information. It needed to make sure that the IEC, as a public body, was able to execute its mandate. The voters’ roll that was to be published to have all the details especially the ID number was a problem. She said that this was benchmarked against other jurisdictions. As she was doing research on this issue and was engaging with the relevant Portfolio Committee, she had looked at how other jurisdictions dealt with this. In other countries the voters’ roll was not made available at all. She actually saw that the amendment that the IEC had put forward was almost verbatim from Australian law. The IEC took it almost verbatim from Australian law. The objective of that law was to balance between privacy and the right to campaign. There always needed to be that balance. She did not think that the opt in provision by Mr Horn applied to this amendment. The opt in provision applied to direct marketing. When the voter registered they consent to their personal information being collected. The voter consents that the personal information must be used for the purpose for which it was collected. There were certain provisions that had to take into consideration the privacy of voters such as publicising all the information of the voters which included their ID numbers. She appreciated the comments from Mr Nqola. The independence of the Regulator would be dealt with by the CEO.

Mr Mosala said that the Regulator had taken a two-pronged approach to the separation strategy. The first approach dealt with the operational plan which included the devolving of certain functions of the financial, human resource and IT nature to the Regulator. This needed to be done so that the Regulator could operate as one of the regions of the Department of Justice. The Department of Justice had nine regions and they had devolved a number of functions. When the regions wanted to procure they were allowed to procure up until a certain amount. When the regions wanted to recruit they were allowed to recruit to a certain level. The Regulator had written to the Department’s DG to approve that the Regulator became one of its regions so that the Department could devolve functions to them. Everything that the Regulator did had to go through National Office even a cell phone claim. The second approach was as alluded to in the presentation under programme 5A which was the approved separation strategy. The Regulator had appointed a two-member committee which would start the work on the policy proposals to address the policy gap that existed. That prevented the Regulator from being listed and also to allow it to do its work independently as the Act said. That policy proposals, once developed, it would be consulted on within the Regulator. Once it was ready then the consultation would go outside the Regulator including to come to the Committee to present it. This would be done to get direction and lastly it would have to be presented to the Department of Finance for a decision. That was the approach that the Regulator had taken on the separation strategy.

Adv Lebogang Stroom-Nzama, Full-time Member, IR, addressed the issue raised by Mr Nqola of the balance between PAIA and POPIA. From 1 June, the PAIA mandate from the Human Rights Commission would come to the Information Regulator. The Information Regulator would be responsible for both PAIA, which was the Promotion of Access to Information Act, and POPIA, which was the Protection of Personal Information Act. The purpose of the legislation was not to have these two rights trump each other. There had to be that balance. When somebody lodged a PAIA request with the Regulator requesting, for example, personal information of a public figure. The information of the person whose information was requested might come and say that they were raising POPIA. Meaning that they were raising privacy as an issue. This was an opportune time for courts as well because that determination needed to be made. The issue of public interest would also play a major role. POPIA had never been tested in South African law so there was no jurisprudence. Once the balance was struck then the courts would also play a roll. It would be very interesting to see how it was going to play out.

Ms Nomzamo Zondi, Communications, IR, responded to the question on how the Regulator was going to ensure that the communication interventions and public awareness approaches would reach the community of South Africa, particularly the disability sector. The Regulator had put in place strategies that utilised a segmentation approach which would ensure that through the communication initiatives would reach the community far and wide. The communication initiatives would reach the illiterate community, it would be in different languages and would be able to reach the disability community. In order for the Regulator’s communication to be impactful to certain segments it was going to be important for the Regulator to work with organised structures such as the disability forums. These organisations could assist the Regulator in crafting communication or developing products that would ensure that the community at large received information on the programmes of the Regulator as well as the services offered by the Regulator. The segmentation approach would assist the Regulator. The Regulator sought to develop communication products that would be accessible and user-friendly to the community at large. It was developing communication products that were multi-media and audio-visual to simplify the language of these two pieces of legislature. The Regulator would also be developing pamphlets and flyers. The Regulator wanted to ensure that it reached the communities. That was its strategy to make sure that it communicated effectively and efficiently with the public. The Regulator wanted to simplify the language of these two pieces of legislature as well as the role of the Regulator.

She responded to the issue that was raised by Ms Maseko-Jele with regards to the public awareness targets. The Regulator’s public awareness targets for this financial year was 24 awareness programmes in throughout the country, covering all provinces. In the previous financial year, the target was nine. It had increased significantly. The Regulator wanted to ensure that it created much needed awareness in terms of the work of the Regulator and its mandate. It was going to break it down according to quarterly targets. In the first and last quarter it would be having five activations in selected provinces and seven in the second and third quarter. She assured the Committee that in the 24 activations it would definitely be using a basket approach so that it had more activations and covered all provinces.

She discussed Covid restrictions and how the Regulator would manage engaging with the public. The Regulator would be using a non-captive public awareness approach where it would not necessarily invite people to community halls. The Regulator would be doing engagements at taxi ranks, at malls, doing roadside interactions so that it was able to manage the issue of Covid restrictions and follow all the protocols. With the audience not being captive the Regulator would be able to engage with them one on one. It would be in an open space and it was distributing communication products which people would be able to take home. These products would outline the Regulators programmes, what was POPIA and PAIA and how individuals could exercise those rights outlined in those legislative pieces.

Ms Alison Tilley, Part-time Member, IR, discussed the way the Regulator approached the Facebook and WhatsApp issue. The Regulator engaged with WhatsApp and provided a critique of their approach. WhatsApp responded and tried to show how it did comply with local legislation. The Regulator remained of the view that there were two different legal and regulatory environments in effect. The one was for Europe and the other for those living outside of Europe. The Regulator was of the view that the South African Protection of Personal Information Act had a privacy regime which was similar to the European Union regime. The Regulator had advised WhatsApp that it should adopt the European Union policy in South Africa and other countries in the Global South. The Regulator had been exchanging correspondence with WhatsApp in this regard. WhatsApp indicated that they would be updating their application on 15 May and were going to ask people to accept the update. If people did not accept the update, then they would be removed. The Regulator was having conversations with a number of international organisations who were also dealing with this issue. The Regulator was trying to develop a strategy that was in common with them including the Global Privacy Assembly. That was one of the things the Regulator thought would have a better likelihood of success. Building a group of organisations, including data protection agencies around the world, in order to engage with this issue. Facebook was a massive company. It was not going to be particularly successful if they were engaged one Regulator at a time. It was necessary to build a coalition in order to make the intervention effective.  

Professor Snail ka Mtuze said it was important to mention that there was also that core section of Section 57. It dealt with prior authorisation. This was the intent to process unique identifiers for purposes that they were not intended for and also the processing of special information. In the last correspondence the Regulator did not say it would take Facebook to court but it said should they not want to further engage with the Regulator it would consider further options.

Adv Tlakula said that the Regulator was a member of associations of privacy regulators in the Commonwealth, globally and on the African continent. The Regulator had encouraged a network of African data protection authorities to write to Facebook to raise these concerns. The Regulator had a meeting with Facebook and WhatsApp where they were trying to justify their revised privacy policy. The Global Privacy Assembly was an association of data protection regulators, globally. The Regulator engaged with them to say that together they were stronger. The Assembly would write to Facebook. Later today the Regulator would be engaging with the Commonwealth data protection authorities as well so that they could also come on board. The Regulator was of the view that Government should also come on board because it was fighting a giant. She saw an example in Australia where the Australian Government passed a law that said if Facebook or Twitter carried news on their platform that it would have to be paid for. This was a fight that Government and Parliament should enter. The Regulator read in the media that the Portfolio Committee on Communications intended to call Facebook or WhatsApp to come and account to them. The Regulator would encourage, whether it was this Committee or Communications or both, to engage with Facebook. It was necessary to take this giant on to say that it could not be business as usual. These social media companies could not abuse the personal information of users. That was a proposal that the Regulator was putting forward to say that this Committee, together with Communications, should find ways to call Facebook to come and appear before the Committee to explain themselves. This was done in the UK Parliament.

Adv Weapond responded to Dr Newhoudt-Druchen question about parents’ access to examination results of their children. He said it was important to note the issue of a competent person. A competent person was defined as a person who reached the age of 18 or above. He said that according to the legal framework if a student was 18 years or above then he or her was a data subject when the Regulator applied the law. There was an opportunity for the parents to discuss on how to move forward. The parents paid and the student was receiving the results and this was because the results constituted personal information. The Regulator had dealt with this question at the University of Mpumalanga in 2017. If someone was 18 or older they would become a data subject and their results constituted personal information. It should only be disseminated to the data subject who was a student as this constituted personal information.

Ms Sewlal responded to the question related to information technology analysis being omitted. It had not been omitted from the legal operational plan and that is where it had been catered for. The reason for this was because the directorate had not been established yet. As the recruitment process unfolded the information technology analysis directorate would be established and key staff would be employed barring challenges related to acquiring critical skills. The output indicator for the fourth indicator, which had been provided for in the legal operational plan, included the conducting of research on technological trends and developments in electronic platforms and digital media, conducting of research and reports on potential threats and vulnerabilities and emerging cyber-intelligence threats. This directorate would also generate reports for both technical and non-technical staff to aid in the development of policies. It would also maintain an information risk register and assist with internal and external audits relating to information security. The Regulator hoped that once the directorate had been established it would have the requisite skills to conduct risk and vulnerability assessments and also look at recommendations on defence planning such as installing protective mechanisms such as firewalls and data encryption programmes to protect personal information. The awareness programmes could also include how the public can protect their personal information on digital platforms.

The Chairperson thanked the Information Regulator for the responses. As much as the Committee was excited about the budget that the Regulator had received it was quite clear that in the outer years there was going to be a big shortfall between what the Regulator needed and what would be given. This was going to pose some challenges going forward. The Committee was asking all of the entities to be very innovative in how they use the resources that were given to them. The reality of the situation was that the economy was highly constrained and the fiscus was highly constrained. There was always a need to strike a balance between what needed and what was affordable. The Committee understood that this was a new and very important institution to protect personal information of the citizens. It was playing both an economic and a security role so it was a very important institution. It was important that the Regulator’s budget should continue to grow as it was trying to find its feet. It was also important for the Committee to have further engagements with the Regulator and the Department on the issue of independence as Mr Nqola had raised. The Regulator could no longer continue to be an appendage of the Department. The Committee needed a clear project plan from both the Regulator and the Department as to how and when this independence was going to be achieved. The Committee wanted the Regulator to be independent as soon as possible. It was important for the Regulator to be independent and be seen to be independent. The separation strategy also needed to be discussed. In the next meeting with the Regulator and the Department, the Committee would be focusing on three issues. It was the issue of the Regulator’s independence, the separation strategy and the devolving of functions from the Department to the Regulator. The Regulator needed to function without any hindrances. The Committee would be focusing on those areas in the next engagement. There was also an issue that was raised by Dr Newhoudt-Druchen that was an anxiety of the whole Committee. The institution was at a very critical stage. If this process was mismanaged a lot of things could be reversed by many years. The end of term of the Commission needed to be carefully managed. It would be good if all of the members could avail themselves for re-election or for reappointment. The Committee was concerned that it might lose critical skills if the process was not properly managed. The Committee asked that all of the members of the Regulator availed themselves when the advertisement went up. Parliament would be advertising soon so that by the time December came the appointments would be able to be made. The Regulator had done extremely well. For many months it had also done administration. It was able to do administration and its functions given to it by the legislation. Some of the challenges were beyond its control. With what the Regulator had it was able to execute its work diligently. The Committee was grateful for that. The Committee hoped that the Regulator would avail itself. It was important for the members of the Regulator to avail themselves to be considered for those appointments. He thanked them for their hard work. There was also a lot of hard work ahead. The Committee would have to check with the Portfolio Committee on Communications and Digital Technologies on how far it was. The Committee would then take it from there if there needed to be joint meetings or if the Committee was highly advanced then it needed to proceed. The first port of call would be to check how far the Portfolio Committee on Communications and Digital Technologies was in its process. He thanked National Treasury for making resources available for this first year. The Committee was still going to carry on the fight to have more resources so that the Regulator would be able to meet its mandate as stipulated by the law and to ensure that peoples’ personal information was protected.

Adv Tlakula thanked the Committee for the support it had given the Regulator. It had been difficult. The staff was already working 24 hours in preparation for 1 July. The Regulator continued to rely on the Committee’s support as it prepared for that big day of 1 July.

The meeting was adjourned.