Public Protector on Organisational Structure; Committee Reports: Remuneration of constitutional institutions office bearers and Regulations for Judicial Officers in Lower Courts

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Justice and Correctional Services

19 June 2020
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video: Portfolio Committee on Justice and Correctional Services 19.06.2020
Audio: Public Protector on Organisational Structure; Committee Reports: Remuneration of constitutional institutions office bearers and Regulations for Judicial Officers in  Lower Courts 

Tabled Committee Reports

The Portfolio Committee on Justice and Correctional Services was briefed by the Public Protector South Africa on its organisational structure. Members expressed concern that they had received the presentation only in the early hours of the morning of the meeting. They felt that this was unfair for both themselves, to fulfil their oversight role and make good decisions, and for the office of the Public Protector (PP) to feel prepared and ready to present.

The PP said the current structure contained a total of 707 positions, and of the 351 funded posts, 262 were within the core business -- 180 investigators and 82 support staff. The remaining 89 were administrators. There were supposed to be 21 regional offices, but five had been closed and eight had never opened as the institution could not afford them.

The average case load at the end of March was 79 cases per investigator, which was a challenge. One of the reasons for reviewing the structure was because there were no entry level posts in finance and supply chain management. The revised structure contained two executive managers under the Chief Operations Officer, who were responsible for provincial investigations and integration. They had been divided into two clusters, coastal and inland. The number of posts in the proposed structure had been reduced by 125. Assistant investigators were being removed, but the appointment of more investigators would assist in reducing the case load per investigator. The legal service unit was being expanded to build capacity internally, to limit the use of external law firms.

Members raised concern on the lack of research capability in the institution, the absence of a line of authority between the Deputy Public Protector and the rest of the institution, the impact of not having a wellness programme in light of the Covid-19 pandemic, and whether the revised structure was within the allocated baseline. They asked how the revised organogram would improve efficiency, what value it would bring to the office, whether it would build capability, how it would impact on the execution of its mandate, and how it was going to be capacitated in terms of strategic support and technical capacity.

The Committee wanted to know what the views of the labour unions had been during the consultation process, what form of assistance had been provided by the Department of Public Service and Administration, and whether the office was prepared for the fourth industrial revolution. It was concerned that the cost of employment and salaries constituted 78% of the budget, and asked how this impacted on operations when only 22% was allocated for other programmes. Members said that the entry level posts in the finance and supply chain management must take into account the President's instructions that youth must be considered, and no experience must be required of them.

The Committee adopted both of its reports on the Regulations for Judicial Officers, and the Remuneration of the Public Protector and Commissioners of the South African Human Rights Commission, without any corrections. The Democratic Alliance reserved its position on both reports.

Meeting report

Late submission of Public Protector’s report

The Chairperson opened the meeting and asked the Public Protector (PP) to begin the presentation.

Adv Busisiwe Mkhwebane, Public Protector, apologised for the late submission of the report. She introduced her delegation and asked for the presentation to begin.

Mr R Dyantyi (ANC) said Members had received the presentation at 2am this morning. Last week, they had received the PP's organogram without the narrative presentation to accompany it. Why had the structure been sent alone last week? Had the PP finished the narrative presentation only yesterday, or did the problem lie with the Committee section? Members needed to apply their minds in order to fulfil their oversight role and make good decisions. It was not an acceptable practice to send documents at 2am in the morning before the meeting the next day. Could this be explained?

Adv G Breytenbach (DA) agreed with Mr Dyantyi, and said she was concerned about the timing of this report.

The Chairperson said the Committee Secretariat had received the document after 11pm last night, and Members received it only at 2:15am. This was unacceptable. Could Members be provided with an explanation?

Adv Mkhwebane replied she would have to ask the Acting Chief Executive Officer (CEO) to explain why the structure was submitted first and the document later, and whether there were any timeframes or requests to include in the presentation after the structure. She agreed that the documents should have been sent to the Committee simultaneously, and was not sure if there was any miscommunication between the PP's office and the Committee Secretariat. She asked the Acting CEO to provide an explanation.

Ms Yalekile Lusibane, Acting Chief Executive Officer, Public Protector South Africa, replied that the submission was first made to the Speaker of the National Assembly (NA) around three weeks ago. Late last week, a letter had been received from the Speaker's office indicating that the submission had been sent to the Committee. On Tuesday, the PP's office had received an invitation to today's sitting, indicating that the deadline for the submission was yesterday. She apologised for the delay in sending it late last night, because it should have been sent by close of business. Several inputs had been received after the presentation was drafted, and they needed to be incorporated into the final version.

Adv Breytenbach said it was not sufficient or fair for the PP's office to be told on a public holiday that they were appearing today. This was only three days’ notice. They did not sit in their office waiting to be called upon. They had other work to do as well. If the deadline for the submission was yesterday before close of business, when precisely were Members supposed to receive it and prepare for today? She was not blaming the Committee Secretariat, because even if it was received by 5pm, it would have been impossible to send it to Members in decent time to prepare for the meeting. She understood everyone was working in difficult times and the conditions were not optimal, but such short timeframes were not helpful to anybody.

Mr Dyantyi said his earlier question had asked where the problem lay. If the first deposition had been to the Speaker of the NA, and the response had indicated that it had been referred to the Committee, then the ball was brought back to the Committee. He asked the Chairperson to get clarification from the Committee section and the Secretariat on this matter. The Committee had set an elevated standard in February that Members must receive documents seven days before any meeting. It was a problem for the Committee section to create its own standard, by indicating that the deadline was the day before the meeting. This was certainly not an expectation from Members. If the explanation provided by the PP's office was undisputed, it meant the Committee had an in-house problem that needed to be solved. The problem needed to be located so that it could be dealt with.

Mr X Nqola (ANC) said the document had been received in the early hours of the morning, which meant that Members would have seen it only at 8am when the business of the day started. Members operated according to schedules and programmes, to execute the mandate of Parliament. This meant they were busy throughout the day and would not have had ample time to analyse and reflect on the presentation. It must be practice that documents were received within a reasonable time, otherwise it made Members ineffective and inefficient. The organisational structure of the PP was a very critical component for the performance of the entity. It was important for Members to stress that they did not accept such treatment from the PP's office. It was not the first time the PP had appeared before the Committee, and past experience showed that documents must be submitted within a reasonable time. Receiving the presentation a few hours before the actual meeting must not happen again. Members must have stricter measures in place to ensure that such issues did not repeat themselves.

Ms J Mofokeng (ANC) said Members were not blaming the PP. It was important to also look at Parliament's role in this. If the communication had been sent out on a public holiday, what did the Committee expect from the PP? Did they feel ready and comfortable to make the presentation? It was unfair that Members received it only this morning, but it was also unfair for the PP. Members should not be able only to critique the report, but also to assist the PP to get things going. This issue needed to be looked at in a very serious way, because it was unfair for both Members and the PP. What had happened inside Parliament that had allowed communication to be sent out on Tuesday?

The Chairperson said the Committee would have to follow up on this matter within Parliament to ensure that communications to all stakeholders were done timeously. The stakeholder's response must also be done timeously so that Members had enough time to exercise their constitutional right to critique and interrogate the report before them.

Adv Mkhwebane said she took note of the concerns raised and apologised for the late submission. The submission to the Speaker had been very detailed. It meant that in future the structure report or any document must be sent with the presentation attached to it. This was critical so that Members could prepare themselves timeously. The PP's office would improve on this. She handed over to the Acting CEO to begin the presentation.

Ms Lusibane said the invitation was received on Monday, and not on the public holiday. The deadline for the submission was yesterday. The office of the PP profusely apologised for the delay in the submission.

Public Protector South Africa: Organisational structure

Ms Lusibane said the organisational structure comparison between Model 6 (the current structure) and the revised structure indicated that the former contained a total of 707 positions. Out of the 351 funded posts, 262 were within the core business, of which 180 were investigators and 82 were support staff. The remaining 89 were administrators. A total of 356 posts were unfunded. There were four branches under the Chief Operations Officer (COO), and nine provincial offices and eight regional offices that were currently functional. The current structure was supposed to have 21 regional offices, but five had been closed and eight had never opened as the institution could not afford them.

To improve the PP's accessibility, various memorandums of understanding (MoUs) had been entered into with different institutions, including the Commission for Conciliation, Mediation and Arbitration (CCMA), the South African Post Office (SAPO) and others. None of these institutions had made permanent office space available, but negotiations and discussions were continuing in this regard.

The average case load at the end of March 2020 was 79 cases per investigator. The PP was still in the process of finalising its 2019/20 annual report, which was due at the end of July. One of the reasons to review the structure was because there were no entry level posts in finance and supply chain management.

Ms Lusibane referred to the high level revised structure, and said it was important to note that there were now two executive managers under the COO who were responsible for provincial investigations and integration. They had been divided into two clusters, coastal and inland. Administrative Justice, and Service Delivery and Good Governance and Integrity, had been merged into one branch called Investigations. The number of posts in the proposed structure had been reduced by 125.

Assistant investigators were being removed because they did not handle investigations independently and therefore did not make an impact in reducing the workload. The appointment of more investigators would assist in reducing the case load per investigator, which was a current challenge. Most complaints in Administrative Justice and Service Delivery could be dealt with by investigators, because they were not complex. The number of senior investigators had been reduced from 17 to six, while the number of investigators had been increased from eight to 18.

The Legal Service Unit had been expanded to build capacity internally, to limit the use of external law firms. In the past, the auditing process had been outsourced, but now the internal audit had a critical role to ensure there were necessary controls to improve efficiency.

The PP was in support of the drive for cost reduction, hence the Department of Public Service and Administration (DPSA) had been approached to assist with the review of the organisational structure at no cost.

Discussion

Ms Mofokeng said the strategy of the PP was very important. How would the revised organisational structure improve this? There were a lot of investigators in the structure, but nothing indicated the presence of researchers. The strategy of the office of the PP and Deputy PP was critical. In one of the advertisements, it had been indicated that an investigating officer must have experience with research. It was very important to have a separate research component so that investigators were able to do their work and be efficient. Could clarity be provided on this?

Who had developed the revised organisational structure? Were there any consultations with the DPSA or the National Treasury (NT)? She noted that the DTAC assisted in the Office of the Chief Justice, and they were now assisting the Department of Justice (DOJ) so that they could be aligned to the strategy. Was that happening? On the MoU's to improve accessibility, were there timeframes as to when they should be signed? Had the PP received inputs from the staff or unions? How ready was the organisation for the fourth industrial revolution?

Mr W Horn (DA) referred to the manner in which the Deputy PP had been placed in the organogram -- there was no line of authority, responsibility and accountability between the Deputy PP and the rest of the institution. Was it proper and sound to position the Deputy PP in this way? He did not know if the way the organogram had been set up was a true reflection of the factual position. What form of assistance had been provided by the DPSA in the exercise of the review? To what extent was the ultimate organisational structure the product of the DPSA's energy and work? Was the DPSA in agreement with the structure, and how far had the involvement and assistance gone? Had it just been consultations or a brief orientation, or a transfer of knowledge as to how to go about the review process?

Section 3(11)(a) of the Public Protector Act required the tabling of a document setting out the remuneration, allowances and other conditions of employment determined by the PP within 14 days after such determination. The Act stated that ultimately the NA must approve it. Apparently there was a more detailed document sent to the Speaker of the NA. Had there been compliance with this section? When could Members expect to engage with that document? In order for Members to pronounce on it, they had to look at the entire bundle of legislative requirements.

Mr Horn commented that the Minister of Finance had said he had no objection to the new organogram on condition that it was implemented within the allocated baselines. The presentation had indicated that funding was urgently needed for additional positions. This seemed to be a bit of a contradiction. Members had to understand properly how the consultations with the Minister of Finance had gone. He was unsure whether the Committee had the authority to even advocate for funding to the NT. He said would not disapprove of the organogram on condition that the PP worked within the apparently allocated baselines.

He asked if there had been engagements in the run up to the drafting of the disaster-induced adjustment budget which would be tabled next week? Were there cuts to the baseline for practical purposes? On the Legal Service Unit, it was not true that this would work towards saving in litigation costs. The unit could assist in protecting the PP in judicial reviews and assist with in-house opinions as to whether specific reviews had to be defended or not, but there was no way law firms would be satisfied with working on internally drafted documents. If the unit was set up and capacitated, it was not going to result in a cut in litigation costs.

Mr Dyantyi said model 6 had been approved in 2017, and three years later the Committee was dealing with this exercise again. If it supported and agreed to the new structure, what value would it bring to the PP's office? He was hoping that the funds and position of the COO would be used for something else. He did not believe the entity needed a COO. Why would one keep a COO, in addition to the CEO and other team members? The key thing that drove the entity was investigations. The presentation had painted a good scenario around this, but what did the ratio of case loads per investigator mean? Members must be able to see if they were achieving what they had presented. Were they just ticking boxes? What was the new structure going to address? Were they building capability?

The presentation had indicated a reduction of 125 people, which meant the issue was not how big the institution was, but its capability. What kind of skills did they want the new structure to deal with? Ms Mofokeng had already raised the issue of having research capability. In past interactions between the PP and the Committee, it had been said that the office did not have certain critical skills, and this had led to outsourcing and spending a lot of money on consultants. How would capability be achieved? What set of skills was required in the office? Were senior and chief investigators at the same level as a Deputy Director-General (DDG)? Would the new structure be operating within the same baseline? If this was not possible, were they making a new proposition to ask for funds beyond the baseline?

Ms W Newhoudt-Druchen (ANC) noted the reduction in staff by 125 positions, and asked how they arrived at this number. The presentation had indicated that the 125 positions included administrative support and assistant investigators. It had also stated that in each province, senior administrative officers would be appointed. What was the difference in the job descriptions that they were reducing versus the new appointments in the provinces? In light of the Covid-19 pandemic and its spread in the country, what was the impact of not having a wellness programme in their office? How would the new organogram result in improving efficiency?

Mr Nqola said the PP's office was very important for enhancing and safeguarding democracy, and its organisational structure was a critical component in executing its mandate. What was the impact of these changes on the operations of the entity in executing its mandate? Investigations were part of the core mandate, but the presentation had highlighted a huge number of unfunded posts. This may impact on the increase in the workload. How did the organogram impact on the execution of the mandate? As much as it was necessary to reduce the structure and align it with available resources, it was equally necessary to safeguard against rendering the entire office useless and unable to execute its mandate.

At a later stage, the Committee must be provided with the demographics and statistics on the entire national structure. It must show the representation of race, gender, youth and persons living with disabilities across the structure. This was necessitated by the provisions of the Employment Equity Act and the affirmative action policy. The presentation had highlighted that the internal legal team was being enhanced, and the office must be commended for this. It was long overdue, because it was less costly to have in-house legal services than always to outsource it. This was important when considering the fact that the PP was always in and out of the courts.

Mr Nqola said the PP's office must be reminded that the President had made serious promulgations on entry level posts. He had said that young people must be considered for entry level jobs, and no experience must be required of them. This had to be considered when the office moved towards establishing entry level posts in the finance department. The Minister of Finance had said he had no particular objections to the revised structure, but had given some inputs for the office to consider. In particular, he had spoken of the practical implementation of the revised structure, with due regard to the economic state of the country. Had the office taken this into consideration before arriving at the revised structure?

In the consultation process before the revised structure was concluded, the presentation stated that labour unions had been consulted, but there was no reflection of their views. This was a very critical point, because it spoke to some of the jobs being lost. What was the actual view of the labour unions on the revised structure? The cost of employment and salaries constituted 78% of the total budget. This left only 22% to attend to other programmes. How was this affecting operations? Members needed to be confident in the expenditure of the total budget.

The Chairperson said the issue raised by Ms Mofokeng was very significant going forward. It was important to have a picture on how the private office was going to be capacitated, otherwise there was a risk that the organisation became stronger than the office. Sometimes the office could be run amok by the organisation. The PP and Deputy PP only had personal assistants. Members needed to have comfort that there was enough strategic support for the private office. This was where one must ultimately be able to oversee the organisation effectively and ensure investigations were up to a certain standard. This required technical capacity. Ministers, for example, had advisors, yet the PP and Deputy PP had only personal assistants. He expressed concerned about how the private office was structured. It might not be feasible now, but it was an issue that had to be looked at going forward. If, for instance, the 17% budget cut could be effected, would this structure be viable?

Public Protector’s response

Adv Mkhwebane replied that senior investigators were at the level of Deputy Director, so they were expected to have research expertise on legal issues and case law. There was also a manager who dealt with knowledge management and performed research. The suggestion by the Committee was appreciated, and it was something to look into so that investigators could focus on investigations, and when it was time to conduct research, there was already a team which did the research and provided the information. The Minister of Finance had been consulted on this matter. Resources to outsource researchers were unavailable, but the turnaround strategy and expertise determined the kind of work expected from a senior investigator.

The DPSA had provided assistance on the current structure, job profiling and support structure, but not on the office's core function. The Department had provided improvements on the existing structure and eliminating unnecessary positions.

All of the MoUs had been signed, and they had included those with the provincial Speakers. Some people simultaneously lodged a petition through the legislature and a complaint with the PP, so this would help to reduce the duplication of cases. There had been engagement with the DOJ to prioritise the utilization of magistrate offices. This process had already started in the Northern Cape, but there were some challenges with the Department of Public Works.

There had indeed been consultations with the staff and unions. The PP's office was ready for the fourth industrial revolution. It had started using a single system for meetings, and it was at an advanced stage of implementing a case management system. An app was also being developed where members of the public could lodge complaints on it. There was also the procurement of laptops for the investigative staff so that they were able to work from home.

Adv Mkhwebane said that any decision taken by the CEO passed through the Deputy PP before it got to the PP. The Deputy PP also worked very closely with stakeholder management, advising on how to maximise staff, on employee wellness, and made presentations to the NT.

A letter had been written to the Minister of DPSA requesting assistance. The Department had provided a team led by its Director General (DG). There were challenges because the PP did not operate like a public service. The document submitted to the Speaker of the NA was readily available, and could be provided to Members. The revised structure was within its allocated baseline. Additional funding was needed to perform the mandate, but the PP's office was not asking for this now. It was just to show Members the challenges and the complete picture of what was required to fulfill the mandate.

The internal legal team did not work only on litigation. It advised on reports to check whether they were review proof and legally compliant. There were several matters that the office was defending internally. The legal advisor had appeared several times on behalf of the PP and drafted affidavits which had been before court.

Adv Mkhwebane said the post of assistant investigators had been removed because they needed a lot of hand holding. Senior investigators were independent, and would be more efficient in finalising cases. 95% of the work comprised service delivery investigations. The revised structure encouraged more investigators to finalise these matters.

The COO position oversaw the performance of executive managers. It would be too much for the CEO to make sure each and every report was checked for its quality and the work was done properly. The CEO already worked on the annual performance plan and strategic plan, and had a number of people reporting directly to her. She was also the leader of the internal structure, and dealt with the peer review mechanism to monitor the workload. The PP and Deputy PP could not hold the executive managers accountable when it came to performance management and discipline. The COO made sure the quality of work was maintained so that the institution did not face audit findings.

Adv Mkhwebane said the investigators had a lot of work and still did work for public servants, which led to stress, low morale and taking leave because they could not cope.

Institutions and departments had to have their own mechanisms to resolve complaints from the public. Complaints were being referred to the justice unit, and if this fails then the PP became a complaints mechanism of second instance. The capabilities were drawn from service providers. For example, if there was an Eskom complaint and it required the expertise of an engineer, then consultants were used. Certain investigators, who were procurement experts or had legal qualifications, were needed.

On the reduction of the 125 posts, assistant investigators and assistant administrators were not in a position to support the provincial representative.  

An outsourced institution had been used on the wellness programme, but due to financial constraints the services were terminated. It was compulsory for each and every employee to have medical aid.

A breakdown of the composition of the staff could be provided to Members to show compliance with the Employment Equity Act (EEA) and affirmative action.

The request for an advisor to the PP had not been approved.

Adv Kholeka Gcaleka, Deputy Public Protector, said the reality was that there were legacy and systematic issues since the inception of the PP, and this was why there was a struggle with the current structure. It was indeed a compromised structure. In order to address the budget issue, the institution had to ensure it was able to cut as much as it could -- more than what its purpose should be because of the financial state. It would have required expert intervention in developing the revised structure by looking at international standards, but this could not be done.

On the capacitation of the private office, the PP and Deputy PP had been required to be subject matter experts, who had gone through a rigorous interview process. The issue was that capacity was required in terms of research and investigators. The COO assisted with quality assurance and governance on the core business, because the private office did not have the capacity. Without capacity in the private office and without the COO, it would really hamper the decision making of the executive authority even further. The concern raised by Mr Horn was because the presentation had not depicted the line of authority accurately. The Deputy PP had been afforded sufficient authority in this position.

Adv Gcaleka said the institution was committed to ensuring that young people were actually capacitated and taken in at the entry level. However, after taking them in at the assistant investigator level, there was no career progression further within the institution. They ended up being redundant and stay assistant investigators for eight years, which was totally demoralising and did not give them any career progression, which defeated the purpose of why the institution took them in in the first place. The institution ended up having to lose them to other organisations. The internship programme gave them an opportunity within the organization, and some of them were absorbed from this programme, so it balanced the force of having to spend less on assistant investigators and those supported through the internship programme.

If the 17% budget cut were to take place, the current structure in its entirety would not be able to be realised as it was with the current baseline. The presentation had pointed out some of the injections that were required. The institution was trying its best through stakeholder management to enforce other commitments within the structure.

Ms Lusibane said there was knowledge management within the institution. A block had been established which all investigators could access, and it contained case law. There was also an account with LexisNexis, although it was not sufficient for all investigators to access. The DOJ had been engaged with on this matter, so that their licences were available to the institution.

On the cost of salaries, the determination of the remuneration had not changed since 2002. The only thing that had changed in the structure was the number of positions. The remuneration packages remained the same. This information could be provided to the Committee. The implementation of the structure was within the baseline. The unfunded positions were not being filled. They would be filled only after a person had vacated or exited a particular position. The institution did not fill any position without the required funding.

The labour unions had raised concerns about the case load of investigators, the inability to fund the positions, and the shortage of tools of trade. The current case load was more than three times the international norm. The last concern was being addressed by providing vehicles in the provincial offices, and the institution was in the process of procuring laptops so that staff could move around with their gadgets if they needed to during inspections in loco, and could work from home. If the revised structure was implemented in its entirety, the case load would drop to 49. This was still above the international norm, but it would alleviate stress.

The biggest chunk of the budget was salaries, and this was as a result of previous years’ baseline reductions by the NT. The only option had been to cut goods and services. Wellness programmes had had to be terminated, and the lease of vehicles and rentals. The work was labour-based and there were personnel who actually did the work. At this point in time, there was no work being outsourced.
Report of the Portfolio Committee on Justice and Correctional Services on Government Notice No R. 1692 published in Government Gazette No 42916 dated 20 December 2019: Regulations for Judicial Officers in the Lower Courts, 1993: Amendment, made under section 16 of the Magistrates Act, 1993 (Act No 90 of 1993), dated 19 June 2020

The Chairperson asked if any corrections were needed in the Report.

Ms Newhoudt-Druchen referred to point 4, and asked if the ellipsis should be there.

Ms Christine Silkstone, Committee Content Advisor, replied it should be there. 

The Chairperson asked for a mover for the adoption of the Report.

Ms Mofokeng moved for the adoption of the Report.

Mr H Mohamed (ANC) seconded the motion.

Mr Horn said the Democratic Alliance (DA) reserved its position.

The Chairperson said the Report had been agreed to.

Report of the Portfolio Committee on Justice and Correctional Services on the Notices determining the remuneration of the Public Protector and Commissioners of the South African Human Rights with effect from 1 April 2019, dated 19 June 2020

The Chairperson asked if there were any corrections and movers for the adoption of the Report.

Ms Mofokeng moved the adoption of the Report, and Mr Nqola seconded the motion.

The Chairperson asked if there were any counters or reservations.

Mr Horn said the DA reserved its position.

The Chairperson said the Report had been agreed to.

The meeting was adjourned.


 

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