Commission for Gender Equality 2022/23 Annual Performance Plan and other matters

Meeting report

The Chairperson welcomed everyone to the meeting and asked Ms N Sharif (DA) to brief the Committee on the National Youth Development Agency (NYDA) and Sedibeng matters.

NYDA and Sedibeng matters
Ms Sharif said the allegations about reviewing the questions in the legislature came from the MEC for Human Settlements. The information given to the MEC from Sedibeng was false information. The District Mayor said Sedibeng officials are acting officials. According to the District Mayor, the Chief Financial Officer said the R2.8 million was spent on all youth programmes in Sedibeng municipality, but it cannot account for R2.55 million. NYDA can account for R550 000 but the rest cannot be accounted for. The Chairperson recommended forensic investigations look into the spending. There must also be an investigation on why false information was given to the legislature, as Sedibeng municipality has committed perjury. NYDA was asked to put in place strict monitoring tools on money spent and to conduct its own investigations into where the money ended up. The District Mayor agreed an investigation needs to be conducted for unaccounted finances and misinformation. NYDA was also asked to sue Sedibeng municipality for damage to reputation.

A two-bedroom house was constructed by students and had cracked lines. Even so, it was impressive that it was built by the youth. Sedibeng municipality let these youth down and created a scandal by putting their names in the media.

Commission for Gender Equality (CGE) Annual Performance Plan 2022/23
Ms Jamela Robertson, CEO, CGE, delivered the Annual Performance Plan (APP) for 2022/23. Ms Robertson said for this financial year the CGE has shifted its strategic focus. The entity previously said it identified limitations in its establishing Act. The Act says the entity must promote public understanding of the CGE mandate on gender equality. It shifted towards refocusing its outcomes and introduced a research agenda which will be internally articulated by the entities’ principals before venturing into research projects.  CGE has refocused its strategic outcome by re-operationalisation of the entity’s business model. The initiation of the revisions of the Act and introduction of a new Bill will form part of the core project for this financial year. government’s priorities and other transformation instruments are dealt with in strategic outcome one and three, which deals with monitoring through research and using the entity’s legal department to evaluate the performance of the public and private entities on quarterly and annual objectives.

The CGE has planned the following for the 2022/23 financial year:

An enabling legislative environment for gender equality
- 16 legislative submissions and reports
- systemic investigation conducted and a report
- 40 courts monitored and a report
- 144 South African Police Services & Thuthuzela Care Centres (TCC) Monitored
- One CGE Act Amendment Bill submitted to the relevant authority and a progress report on the situational analysis and consultation processes for reviewing the Act
- One CGE Initiated Bill submitted to relevant authority and a progress report on research and consultation processes for initiating the Bill

Gender equality promoted through information and education to foster public understanding
-18 municipalities in which sustainable development goals are localised through Gender Mainstreaming (GM) sessions
- 4 320 people reached through public education and a report thereof
- 540 000 people reached through community radio education outreach and a report thereof
- 720 stakeholders reached through Gender and Development (GAD) Workshops and a report thereof
- 48 000 000 people reached through Information & Communication Initiatives and a report thereof

Monitoring and research investigations on issues that undermine the attainment of gender equality
- 100% Annual Research Agenda initiatives implemented
- 100% research recommendations from previous financial years followed up and a report thereof
- Two Policy Dialogue

A renewed, efficient and effective organisation which is sustainable
- 75% implementation of defined organisational effectiveness systems
- One cost business plan submitted to National Treasury for funding
- 75% implementation of the business model as per defined criteria
- Four update reports on the implementation of the Tracking Tool
- 100% expenditure on planned improvement initiatives
- 100% audit action plan of the previous financial year implemented
- 100% risk mitigation plan implemented
- 100% compliance with legislative requirements identified in the compliance universe
- 5% vacancy rate
- Four training and development initiatives conducted
- Ten strategic partners engaged and a report thereof

Budget allocation
- The pandemic and the need to increase the social grants, increase demand for social services, which puts more pressure on the fiscus. However, surplus revenue collection from revenue authority provides some relief on the fiscus.
-  National Treasury allocated an amount of R6.8 million above the baseline of R 93.7 million in the 2022/2023 financial year. The budget will be adjusted down to a baseline of R94.1 million in the 2024 financial year.

For more budget information and the APP, please consult the presentation.

Discussion
The Chairperson asked what informed the allocation for each strategic outcome; how an amount for each strategic outcome was decided; and how the Commissioner approved the APP without even asking questions such as these. The Chairperson said the budget allocations for 2022/23 are complicated, for instance, there were items in the APP all along, but are no longer there. The Chairperson could not see the complaints in the APP. If it is not there, does it mean the CGE was no longer taking complaints?

The Chairperson said some of the budget targets set by the CGE are not specific, measurable, achievable, realistic, and timely (SMART) because it lacks detail.

The CEO said in her presentation that CGE still needs to work out the cost for each activity. She asked what is going to happen if CGE realises along the way it need more money to fulfil a target. When one is using public money one is obliged to use National Treasury guidelines. She asked why CGE did not put what it is presenting in its operational plan. CGE would have understood better what it is supposed to achieve as CGE.

The Chairperson said she does not have a problem with CGE changing protocols to make delivery easier. However, the entity needs to come to the Portfolio Committee for approval of its strategic plan and APP. It needs to be put forward according to what is standard.

Ms Kashifa Abrahams, Committee Researcher, was asked to flag key issues found by the Portfolio Committee on the APP for the current financial year.

Mr L Mphithi (DA) asked for clarity on the R19 million returned to Treasury. There was an indication additional funding might be required to fulfil some of the objectives highlighted in the APP.  He asked how one sends money back to the Treasury and then ask for more money at the same time.

Dr Nthabiseng Moleko, Deputy Chairperson, CGE, said the consolidation of the APP was to position the CGE better for impact, and in line with its mandate. There are various activities which can be consolidated into the APP. CGE will amend activities which are not in line with SMART. For CGE to align to its timeline it had to rephrase some of its activities and constitute them into the APP. It also ensured measures are linked to the mandate on strategic impact instead of having activities in the APP which are not strategic.

Dr Moleko said strategic object one primarily deals with enabling the legislative environment. The previous activities which have been changed from the previous strategic outcomes were highlighted. CGE prefers to have an impact, and reform through meetings is its guideline. The meetings should be captured in what is called the monitoring tool, which deals with the legislative reform and recommendations from its high-level meetings. This will not be seen as a deliberate activity, but the monitoring tool, which monitors its stakeholder engagement on gender, transformation, and gender mainstreaming. What will assist the impact is to look at the outcomes of the recommendations from the CGE’s own reports. Meetings should be tailored according to a specific report or recommendation and not be generalised. It has an additional outcome that deals with monitoring courts and other activities of the justice and security cluster. It never had this outcome as a regular activity before. One aspect of the strategic outcome is CGE wants to promote information and education. This is where activities, outreach efforts, and advocacy lie, all of which are regarded as targeted interventions.

The Chairperson asked if the impact is determined by the specifics.

Dr Moleko referred to point 4.4 of the APP as there was an example raised there, a specific question on legal and research.

The outcome said: CGE cannot continue to simply have meetings for the sake of it. It has to have a pointed meeting related to organisational work which has been done historically, currently, and to come.

The exact detail of what CGE said is in point 4.4 of the APP. The plan has an updated report on the implementation of CGE's legal and research reports to measure the effectiveness of those historical and current recommendations, because those are constantly updated. The specifics and the details will be shared if the Committee says it wants to look at the CGE’s tracking tool every quarter and if the Committee asks how far CGE has gone with the recommendations. It is not strategic to have three or five meetings to deal with impact measurement. CGE created a monitoring tool and is constantly updating it to measure the effectiveness of the organisation in relation to the instrument on the effectiveness of legislative and gender mainstreaming reform.

The Chairperson said the CGE must be able to track the things it said it is going to do. If it does not appear in the APP, then it is a problem. She asked how the CGE is going to track it and hold itself accountable. The Committee was not saying CGE must not bring changes and must not be innovative. The Committee was saying CGE must put this in its report so it can also make the Committee’s life easier, to track and measure impact and CGE’s targets. CGE’s targets must be clear to the Committee.

In addition to the normal APP quarterly, Dr Moleko recommended the CGE provide a quarterly tracking tool. This addendum would provide further details on what is happening in relation to meeting targets, for example, for a policy workshop, engagements and dialogue details are not reflected in the APP. Therefore, one must provide more details in the addendum. CGE has details on point 4.4, as reflected in the APP.

The Chairperson agreed and said she was looking at the research report item highlighted in the APP, but she had questions such as what, who, how, and where will the research report be monitored.

The Chairperson said the Committee is not going to have problems with what the CGE has said, now. But, the Committee needs to be told when it is going to submit this. It must be done and accepted before the Budget Vote on 19 May. The Committee needs to get it by the following week, so it is able to finalise its report. It must be on Tuesday or Wednesday evening.

The Acting CFO, Ms Pearl [surname not confirmed], said when she was talking about the sub-classes retention in relation to National Treasury instruction, CGE was dealing with the GRUB principle and it was using cash basis modification. Before 31 March 2021, what it did was assess bank liabilities, and the money was then returned. Under GRUB, CGE still has accrual sitting there. Yes, it does not make sense, why CGE would return money and then ask for more money. However, it needs to be remembered that by 31 May some of CGE’s accruals were not paid. Therefore, CGE needs to comply with this on an accounting basis. The R19 million is compliant with the reporting principles. The retention of the surplus is coming from the previous year’s surplus accumulation.  National Treasury calls it a surplus, but for CGE it is actually meant to be allocated for what it still needs to do. This does not mean CGE did not do anything and is asking for money. What CGE is trying to do is to comply with National Treasury, because CGE used a different type of reporting standard. CGE will provide detailed plans in its financial statements and mention it still has items which are not paid for, therefore it needs to retain the money. The Committee must consider it was the 2022/23 financial report which was presented, and the R29 million for goods and services does not include any commitment or accrual which accrued in the 2022 financial year. 

Ms Robertson asked if CGE can get the document which was flighted by Ms Abrahams (researcher) so CGE can respond to the issues raised in it fully.

Ms Sharif said the timelines and the targets of the APP lack details. It makes it very difficult for the Committee to hold the CGE accountable and to be able to monitor its performance. There is lack of clarity on budget requirements. It concerned her that the Committee has been sitting in these meetings but still does not have clear details on the CGE’s plan. She said the CGE needs to go back and provide the Committee with a detailed APP.

The Chairperson said the CGE needs to go back and add the addendum to clarify the issues raised with the Committee today. CGE must ensure the items comply with SMART, so CGE is not turned back.

Ms T Masondo (ANC) asked how the APP passed CGE plenary approval when so many targets are not compliant with SMART; and why there is no continuity between the last and the current APP. She asked what informed the budget; what has happened to litigation by the CGE as a key function; how the CGE has translated the promotion and protection of gender equality within the Revised Strategic Plan and current app; how CGE ensures continuity of its work when targets are no longer reported on; what the implications of the Amended Strategic Plan for the work of commissioners over the Medium Term Strategic Framework (MTSF) period are; what the role of commissioners in giving effect to the entire APP is; what the plan in relation to this is; how the commissioners are to be held to account in this regard; what members of the Committee can expect of commissioners within their constituencies and provinces in the current financial year; how the CGE ensured its recommendations have been taken up and addressed within the 2022/23 APP; and how the CGE ensured the concerns raised by the agencies of South Africa have been taken up and addressed within its current APP.

Mr S Ngcobo (DA) said he agrees CGE had to come back with an updated APP which provides more information. He asked if CGE is still rolling out the Boy Child Project for the 2022/23 financial year.

Ms F Masiko (ANC) said the un-detailed APP does not necessitate room for discussion on quarterly specifics and targets. CGE will only be able to thoroughly engage with the details once the updated APP comes before the Committee.

Ms P Marekwa (ANC) said when CGE reverts with an updated APP, it must include considerations of recommendations made by the Auditor-General’s (AG) Office at the last meeting. It is very important for CGE to look at its internal financial issues so it can have good audit reports.

Responses
Ms Tamara Mathebula, Chairperson, CGE, told the Portfolio Committee that the CGE looked at a three-point approach. The first approach involved planning. It went through a strategic planning session at the beginning of this year for reflection and internal consultation. The sessions provided a framework which sets out a basis for four strategic outcomes for the current financial year. The second approach involved budgeting, and detailed how the APP and Strategic Plan are going to look for the next two years. Under this approach, CGE looked at carrying a month to month and quarter to quarter budget for the CGE. This is how CGE is able to request quarterly allocations and budgets from National Treasury. The last approach involved forecasting based on historical data. Slide six of the budget presents this information. The data comes from the 2019 reflections of the budget, and expenditure until 2026. The current budget is cognisant of the working conditions, inflation, and so on, to enable predictions for the new financial years. The Chairperson said the CGE will append some of the detailed monitoring internal frameworks. CGE will use the Portfolio Committee’s document to actually look at what best CGE can do to articulate the current APP so it is able to come back and present.

Ms Robertson said the exercise of submitting an addendum of activities related to CGE’s outputs will assist with litigation, complaints handling, and other issues. This task will be highly prioritised and responded to timeously. The Boy Child is one of the standing programmes in the APP. The APP is a high-level document and CGE was discouraged from putting in daily activities, which consequently omit some of the important updates for the Portfolio Committee. CGE understands this is unfair to the Portfolio Committee because the Committee does not see what it should be overseeing. Some of these activities, such as The Boy Child and Men and Boy Projects are embedded in the strategic partnership outcomes. These will be detailed in the activities which will be submitted.

Ms Sharif said the CEO and the CGE asking Ms Abrahams for a document for comparison is massively problematic. She said she would imagine it was preferred to look at the previous year’s APP and compare it to the new current APP. She is not saying the Committee must not help the CGE and send the document, but this is the work which has to be done by the CGE. It is not Ms Abraham’s role to give information to the members of the CGE. She said she is concerned the CGE had its strategic planning session at the beginning of this year when it should have been done already. If CGE still has to cost activities it means there is a delay within the CGE. Perhaps, this points to issues around management and leadership within the CGE. 

Report 1: Commissioner Mbuyiselo Botha
Ms Mathebula said she will speak to the first report which provides progress on the breach of the code of conduct by Commissioner Mbuyiselo Botha. The report will take the Committee through a sequence of events pending the disciplinary inquiry and will provide context. There was a report shared with the Portfolio Committee last year which provided substantive information on the matter.

Discussion for Report 1
Dr Herman Tembe, Office of Institutions Supporting Democracy (OISD), said the response given by the CGE to the Speaker was crafted by his Office. The CGE, speaking in relation to the action taken against Commissioner Mbuyiselo Botha, said it is incapacitated to act.

According to the Commissioner’s handbook signed in 2012, the Commission has powers unless it was a request to the Speaker of the Office requiring removal of the Commissioner. He said it falls under Section 194 of the Constitution, which is an impeachment provision. The CGE was supposed to offer a last warning, which cannot be done by Parliament, only the plenary. He said point 16.2 of the Commissioner’s Handbook highlights that any Commissioner who has been warned or faces a request of removal in terms of Section 16.1 (c) may within 14 days of being notified of the plenary decision appeal to the Chairperson in writing. If there is an intention for removal, the Commissioner is given latitude to appeal before the decision or request is made to Parliament.

Dr Tembe says it seems like the CGE has jumped the cart before the horse because one cannot expect Parliament to act before the internal processes have been exhausted. He said the Alternative Dispute Resolution (ADR) of point 4.4 reads as follows: “when a dispute arises, the Commission should endeavour to resolve it expeditiously, effectively, and efficiently”.

He stressed that the conflict between commissioners should be referred to the Chairperson. “If a conflict arises between the Chairperson and the Commissioner, the plenary should establish a team of three commissioners to deal with the matter because a matter cannot be resolved internally. An external dispute resolution organisation such as the Arbitration Foundation of Southern Africa should be sourced to deal with the matter and its findings should be referred to the plenary. Once the findings are adopted by the plenary this binds all parties concerned.  Should any party not accept the outcome of the matter, she or he may refer this to the Speaker of Parliament for guidance”.

Even the Chairpersons have powers in regard to the non-attendance of meetings unless the outcome is removal. Point 5.5 of the Commissioner’s Handbook says in instances where a person has requested a written explanation from any Commissioner, and after considering the same. The Chairperson may approach the National Assembly to request the President act according to Section 35 of the CGE Act for the removal of a Commissioner. “Clearly, one approaches a Speaker for the removal option after ADR is exhausted”.

Dr Tembe said the CGE needs to clarify to the Portfolio Committee if it is aiming for the removal of the Commissioner, which is the last option.

He said a precautionary/preventative suspension is put in place to allow the matter to be investigated, as it is not a punitive suspension. It is done to make it possible to collect the evidence which will be used in a disciplinary hearing while the employee still remains being employed by the CGE with full benefits. If it is a punitive suspension it means a person can be suspended with no pay. The CGE needs to know that during a suspension an employer must have positive grounds for deciding to suspend an employee, because a wrongful suspension could make an employer liable for a claim for damages, and in this way, liable for an unfair labour practice.

Dr Tembe said he presumed the CGE had a legal advisor and exhausted internal remedies before coming to Parliament to say it is hamstrung as far as acting according to the Commissioner’s Handbook goes.  

The Chairperson said the CGE has followed all its internal processes. The CGE has established a Committee with three commissioners and it also wrote to the Commissioner to abstain from all actions written about in the media. However, the person did not refrain from these activities. Further, the Commissioner insulted, discriminated against, and defamed the characters of some of the other five commissioners in the Committee. According to the Chairperson’s understanding the CGE exhausted the internal processes. The Commissioner ran to the court instead of cooperating with the CGE. The commissioners are making recommendations to Parliament, as read by the Chairperson of the CGE, Ms Mathebula.

Ms Mathebula agreed with the Chairperson about CGE exhausting all internal processes and following the Commissioner's Handbook. It was a very difficult situation. Mr Botha also did not finalise and finish internal processes.

Dr Tembe said for any labour dispute, if you go to the Commission for Conciliation Mediation and Arbitration (CCMA) or to court, the first question in addressing the raised labour matter would be to consider if the parties exhausted all the internal remedies. It should be highlighted you are escalating the matter and there is no other comfort or redress which one can obtain from internal remedies.

He said point 16.1 says a Special Committee constituted of at least two commissioners may investigate and make a finding on any alleged breach. There is no recommendation from the report in Addendum A, which says Commissioner Botha should be removed. The option available is the rectification of the decision by the plenary through either a formal warning, of which it is not clear if it was recommended, or a request to refrain from the prohibited conduct of a commissioner in a certain manner, and a request to the Office of the Speaker requiring the removal of the Commissioner. Dr Tembe asked what the recommendations of the plenary were, as it is not clearly outlined in the report. 

Dr Tembe said according to point 16.2, any Commissioner who faces removal must be warned first, and secondly, there must be a removal according to point 16.1(c). The Commissioner may within 14 days of being notified of the plenary decision appeal to the person in writing.

Answering the question if this happened or not, Dr Tembe said nothing was done according to points 16.1, 2, and 3. He added point 16.3 says all investigations will be conducted according to the rules of natural justice, the CGE Act, and policies, procedures, and rules (PPR). The rule of natural justice is known and it cannot be done by Parliament. The Commissioner's Handbook, point 5.6 notes the standard procedure for the removal of any Commissioner must be developed and included in the CGE regulations referred to as PRR and R.

One can see a discrepancy. There is a gap in the handbook which cannot withstand legal scrutiny in this particular case. He outlined and read the CGEs powers, based on Section 16 of the Commissioner Handbook. The report is clear and does not say Mr Mbuyiselo Botha should be given a formal warning and refrain from the prohibited conduct or behave in a certain manner, and it does not request his removal. It is also not clear if he has been given the right to appeal within the 14 days of the adoption of this report.

The Chairperson said the report says five of the commissioners were affected by the same incident. The Commissioners considered not participating in some of the decision making, as the commissioners are directly affected by the incident which prevents commissioners from fully participating in this matter. The established Committee must advise it on which position to take.

Commissioner Sediko Rakolote said the presentation by the Chairperson of the Commission covered him. All the steps were followed and the majority of the commissioners were directly affected. The affected commissioners cannot be referees and players in this matter. The last step was to allow the employer, who is the President, through Parliament, to be the referee in the matter. Parliament can assist in instituting disciplinary hearings.

Commissioner Ntuli-Tloubatla said she is covered by what the other commissioners have alluded to in this matter. The Labour Relations Act says the processes must be applied when a person is employed by an employer. When a person is hired by the public sector, the Labour Relations Act will be applied with Public Service Act, including its related matters and the internal process that each institution implements in a dispute between an employer and an employee. She said with the CGE case, the Commissioner’s Handbook was used as a tool to solve the issues. The CGE followed the Handbook to the letter; this is why it found itself facing the current issue. The powers of commissioners allowed commissioners to act as the commissioners acted. The CGE team took it upon itself to inform Commissioner Botha of every step it took. It seems Commissioner Botha missed an opportunity here. The plenary communicated with him and gave him a choice to act in a manner which suited him. He was aware of all the internal processes but he opted to take the matter to the media and serve individual commissioners within the privacy of the commissioners’ homes, with papers from his attorneys.

The Chairperson said the report did not package all the information and the steps taken to deal with the process, therefore it sounds or reads in a confusing way.

Dr Tembe said the Speaker of Parliament is not supposed to assume facts. The report did not fully outline the details of how CGE completed and finalised Commissioner Botha’s matter. Many commissioners are affected and the report should highlight this. The report highlights a precautionary suspension. He referred to point 16.1 and point 16.3, which says a special committee constituted by a Chairperson, may investigate and make a finding on an alleged breach of provision of discord with appropriate recommendations in the investigation report. He asked what a PPR and R are because it is not explained to Parliament or to the Speaker. According to the report, there is nothing suggesting the rules of natural justice were followed. He appealed to the Commissioner to provide the Office of the Speaker of Parliament with a clear definition of PPR and R so it can give holistic advice. A report submitted to a Speaker is an invocation of Section 194, which is an impeachment provision, and not merely for guidance as Section 4.4 of the ADR.

Ms Masiko suggested there must be a rectification report in line with what Dr Tembe has said.

Ms Marekwa said the commissioners should consider what has been said and have further engagements with Dr Tembe.

Ms Sharif said she agrees with Ms Masiko and the process should get underway.

The Chairperson said all agree the details in the report do not comply with what the commissioners presented. The CGE must go back to its plenary and sort this out according to how CGE presents, and attach all the documents to prove CGE followed all the internal processes. It must also include the letters from Commissioner Botha’s lawyers. The Chairperson asked how Commissioner Botha is sending individual letters when CGE is a team. The report must be clear on what steps were taken. CGE cannot say it needs legal guidance while it has its own legal team. It must make recommendations and the Speaker will definitely deal with the matter with the Portfolio Committee accordingly. It becomes difficult to make an informed decision when there is information and details omitted from the report.

Commissioner Ohara Ngoma-Diseko said all she wanted to say was covered by the previous speakers.

Ms Mathebula said PPR and R referred to policy, procedures, and rules. The regulations which provide guidelines for the CGE to follow the Commissioner's Handbook also fell under the PPR and R. The CGE will attend to, rewrite, and submit its reports which demonstrate all the internal processes it followed during this issue. CGE is happy to engage further with Dr Tembe for further advice.

The Chairperson said she is giving the CGE a week to repackage the report correctly.

Dr Tembe said his Office falls under the Speaker’s Office. His Office is supposed to advise the Speaker on this correspondence. It should not be assisting CGE with CGE’s own internal processes. CGE needs to withdraw the submitted document if it wants to change it. Otherwise, somebody in the Office of the Speaker is already working on the document. The document should be on the Speaker’s desk by 9 May.

Report 2: Non-attendance of Commissioner Busisiwe Deyi to several Portfolio Committee meetings
The Chairperson of the CGE, Ms Mathebula, said the second report provides another sequence of events following non-attendance of the Commissioner to several Portfolio Committee meetings. The report also tables some of the direct individual submissions made by Commissioner Deyi to the Portfolio Committee. The report will further outline the interactions played by the CGE in line with the Handbook.

The Chairperson said she did not hear Ms Mathebula quote any misconduct and disciplinary hearings in relation to the Handbook.

Mr Mphithi asked the CGE team if they exhausted all the necessary interventions based on the Handbook and any other rule book which may be applicable in this particular instance.  It is fundamentally important from a procedural point of view to have an understanding and a green light from the CGE. He asked how an incomplete Handbook impacted people to conduct the roles they needed to conduct in their appointed jobs.

Responses
Ms Mathebula said Annexure B of the Handbook deals with the Code of Conduct and it says Commissioners must be accountable to the National Assembly and report to Parliament regularly. The preamble guides CGE on non-attendance and accountability and says it must be accountable to the National Assembly and report to Parliament. Section 4 of the Code of Conduct says commissioners must be members of a Section 6 committee.

Section 4.2 further says all commissioners must attend meetings called by the Chairperson, which is applicable to the meetings called by the Portfolio Committee, and must participate in these meetings regarding the power of the obligations set out in the CGE Act.

Section 4.3 says if three or more consecutive meetings are not attended by any commissioner, then the Chairperson may take appropriate action in the circumstances, which may include withdrawal of the commissioner's membership or attendance from any committee or Section 6 committee.
 
CGE engaged the commissioner in question about non-attendance to meetings and received apologies about the CGE meetings and apologies to the Portfolio Committee. The Handbook it is currently using is an official document which guides it and was signed in 2012 by the former Chairperson. CGE will need to look at the document Dr Tembe is using because the one it is using is recent and was signed on 12 February 2020. The document has been taken for external review after the finalisation of the internal review. External comments on the document were received from the external service providers. The document will go to plenary in October.

Ms Lindiwe Ntuli-Tloubatla, CGE Commissioner, said there is a human resource committee at CGE which focuses on the workforce covered by the Labour Relations Act. Three of the commissioners sit under the human resource committee and empower the development and the protection of the worker’s rights within CGE. The human resources committee does not have any authority to take decisions relating to the commissioner in question. A Commissioner is recommended for appointment by the Parliament under the advice of the Portfolio Committee, and then the President appoints a commissioner.

CGE is also guided by the CGE Act, 39 of 1996 and the information contained in Chapter 9 of the Constitution of the Republic of South Africa. The human resource committee is an internal process of its own, within the CGE. Therefore, according to Chapter 9, CGE does not have power to take decisions which pertain to the Commissioner. Commissioner Deyi is a principal within the CGE, which is part of the administrative committee which adjudicates and takes decisions which are secretarial and administrative related.

The Office of the Chairperson was supposed to sit down and engage as a collective and then adjudicate on the matter. The matter would then collectively be brought to the plenary. Commissioners within the CGE are guided by the Handbook. The Handbook was the guiding document which was supposed to help CGE to lead this process. The Chairperson and the Deputy Chairperson of the CGE were also supposed to initiate an engagement before it escalated. One might have missed an opportunity in this regard and it starts with the head of the institution and then cascades down. There is no way commissioners could individually initiate and push certain processes. Commissioners do not have this power.

The Chairperson asked if the commissioners were using the institutional letterheads for writing and dissemination of information. Hiring other legal companies was not a cause for concern. The Chairperson asked if anyone in CGE has a right to abuse and misuse the office to act on matters on behalf of the institution.

Commissioner Ntuli-Tloubatla said commissioners are not silent on the matter as a collective of commissioners in the CGE, which is the reason why commissioners are finding themselves discussing these matters. When collective commissioners operate in every decision, both internally and externally, commissioners do not forget issues of integrity as commissioners. Commissioners also do not forget to be impartial and commissioners must be accountable to the law and the Constitution.

The current engagement is being had because commissioners were vocal and open about the matter. Commissioners initiated the discussion of the matter and made sure, as commissioners, they do not leave matters lying around because commissioners are committed to their responsibilities.

Commissioners have those discussions and engage in proactive behaviour and commitment to the citizens of the Republic of South Africa. Commissioners were instrumental in making sure matters were discussed and made some decisions at plenary level.

The Chairperson asked Commissioner Nomasonto Mazibuko why the CGE did not investigate the Eastern Cape issue and asked about claiming funds and taking public money without working for it. The Portfolio Committee decided the CGE should investigate and report back. The Chairperson asked why CGE did not investigate, and asked where the report was.

Commissioner Mazibuko said the commissioners as a collective did the investigation. It had the Eastern Cape Office investigate the treatment Commissioner Deyi got from the traditional leaders. It has the reports.

It is very difficult and surprising because CGE sat down with and engaged Commissioner Deyi, but she went ahead and wrote about the Portfolio Committee and the Speaker in her personal capacity. CGE reports were therefore not packaged correctly. CGE has been collectively working together as a team of commissioners on the two matters discussed today.

The Chairperson said there are two issues, the first issue being the CGE investigated the ill-treatment and discrimination based on sexual orientation, which involved the traditional leaders. Thereafter, when the Portfolio Committee took a resolution for CGE to investigate, it did its own oversight to check if the allegations were unfounded. The Committee expected a report from CGE.

The Chairperson asked about the claims made by Commissioner Deyi when she was not working; asked how CGE paid someone who did not work, and did not even recoup the money back. The Committee is expecting those two reports from CGE, as the reports are long overdue.

The Chairperson also asked for a report to explain what the CGE did in regards to the Code of Conduct against one of its colleagues who misused and abused the institution’s name. At least the Committee has a letter from CGE distancing itself from what was said in the public domain.
The Chairperson asked what consequence management CGE has taken. The Committee is not bullying CGE but it is doing its work as the Portfolio Committee. It has a responsibility to account to the Republic of South Africa on behalf of Parliament. The Committee is also responsible for assessing how CGE uses its allocated funds. The Chairperson asked how money is paid to someone who did not even submit a doctor’s note for three to four months.

Commissioner Ngoma-Diseko said it seems as if the Committee is having a hearing about Commissioner Deyi without her presence. This can compromise everything and it may be better to send Chairperson Mathebula back to the drawing board instead, and advise her to use internal mechanisms to deal with these matters. The Commissioner did not recall CGE dealing with the matter internally as a misconduct issue, and noted being uncomfortable because the Committee was talking about a commissioner.

Ms Sharif said the Commissioner was invited to the meeting but did not attend, and asked if this meant the Commissioner chose not to attend to give the Commissioner’s own perspective.

Mr Mphithi supported Ms Sharif and said it has become very clear there have been repetitive offences of non-attendance to committee meetings, at some points without apology. He said he is also concerned about the financial aspect of CGE and how it conducts its work. This warrants some form of action to understand the facts and to get a fair, impartial, procedural and independent body to conduct a thorough investigation on these particular issues.

He asked if the Committee could stick to a conversation about the procedural component of the issue to avoid clouding the conversation with personal aspects, and asked if CGE is satisfied all necessary interventions have been exercised to deal with this particular issue. He also asked If CGE was satisfied with its process and if it was comfortable handing the issue over for investigation, so the citizens could get answers.

Mr Mphithi asked if CGE can finalise its addendums within a week so CGE can move forward with full capacity to assist women in the country who face discrimination and inequality.

Commissioner Ngoma-Diseko said she does not want to be misunderstood, she was commenting on the issue of procedure. The absence of the commissioner in question is obviously problematic, which affects capacity and everything else too. CGE must follow the Handbook procedurally so all is not compromised.

The Commissioner said there are reports and receipts from the Eastern Cape.

The Chairperson said the Portfolio Committee has a responsibility to play an oversight role, which is why she had to remind the Commissioner about issues discussed in meetings which must be reported on. She asked how else it was expected for the Committee to be able to hold the commissioners accountable.

Dr Tembe said all answers lie in the legislation and the Constitution. Section 55 (2)(b) of the Constitution says the National Assembly must provide a mechanism to maintain oversight of any organ of state. Section 181.3 of the Constitution says other organs of state, through legislative and other measures must assist and protect this institution to ensure its independence, impartiality, dignity, and effectiveness of this institution. Section 15(2) and (3) of the CGE Act says the Commission shall report to the President at least once every year on its activities and the achievement of its objectives, and the President shall cause such a report to be tabled promptly in Parliament, provided the Commission may at any time submit any other report to the President and Parliament. Section 16 says the Commission may at any time approach the President of Parliament with regard to any matter relating to the exercise of his powers and the performance of his function.

Section 5.3.7 of the Handbook, 2012 version, says the Commission has a reflective role with collective authority and decision making as a Commission, but commissioners must carry individual responsibility for delivering unassigned work areas.

The Commission should evaluate plenary proceedings, the functioning and efficacy of each committee's and individual commissioner’s performance, and this should be done on a bi-annual basis.

The preamble for the Code of Conduct of commissioners says commissioners are appointed to ensure the CGE has a structured mechanism of accountability to the Constitution to meet the gender equality needs of the South African public in fulfilling this responsibility equitability, effectively, and in a sustainable manner within the means of the legislative framework of the CGE.

Commissioners must be accountable to the National Assembly and report to Parliament regularly, having the requisite skills and commitment to promote, protect, develop, and attain gender equality; and provide leadership as well as policy direction in collaboration with its Secretariat.  The Commissioners Handbook gives powers to the person and advises to tread carefully on this, because there is a thin line of distinction between functional and institutional independence.

The Portfolio Committee should not be seen to be interfering in the functional independence of the Commission, but it must be seen to be exercising an oversight role.

Section 15.1 of the Commissioner’s Assembly says if the Chairperson is of the opinion a provision of this court has been breached, then the Chairperson must authorise an investigation of the facts and circumstances of the alleged breach; provide the Commissioner with a reasonable opportunity to reply in writing in regard to the alleged breach; and advise plenary on what steps were taken and the outcome of any such investigation.

He said from what he has been listening to it is clear not all these steps were undertaken by CGE. This is not an indictment on the Commission but examines if it utilised the resources it has to deal with this matter, rather than passing the responsibility to Parliament.

The Chairperson said she wanted to make it clear accountability is not a choice, but a must.

Dr Tembe proposed the CGE must deal with the matter according to its internal resources and then send a report to Parliament, which will exercise oversight. The Committee must decide on its own, informed by the report from CGE.

The Chairperson said the matter will be left with CGE to conclude, and offer a comprehensive report. It has four weeks to conclude everything.

Commissioner Moleko thanked everyone for their valuable input. She said a withdrawal letter is currently being drafted and will be sent on the present day. CGE will provide the reports required for Commissioner Botha’s case and will use internal resources to deal with Commissioner Deyi’s case.

The Chairperson thanked the CGE for taking responsibility and reporting back to Parliament. She said she wants these matters to be concluded so the work of the CGE can be taken forward with efficiency. The Chairperson thanked Dr Tembe for the legal advice he offered to the Committee and all the Members of the Portfolio Committee and Commissioners for the input. She concluded by saying the CGE should deal with the litigation matter from Commissioner Botha, so it can do its work with no disturbance.

The meeting was adjourned.