Marine Spatial Planning Bill; SA Weather Service Annual Performance Plan & response to anonymous tip-off

Meeting report

Opening remarks by Chairperson

The Chairperson welcomed everyone to the meeting, the delegates from the Department of Environmental Affairs (DEA), the board members from South African Weather Service (SAWS), and the Committee Members.

The Chairperson briefly recapped on the meeting of the Portfolio Committee with the Standing Committee on Finance.  It had been agreed that there should be a workshop which would delve into the details of the Carbon Tax Bill, which was currently before the Committee, for a deeper understanding of the Bill.

The Chairperson reported the apologies, namely, from Minister Edna Molewa, Environmental Affairs, Ms Deputy-Minister Barbara Thomson, Environmental Affairs, and Ms Nosipho Ngcaba, Director-General: DEA. 

Consideration of the Marine Spatial Planning Bill

By way of introduction, the Chairperson informed the Committee that the Bill had been referred back to the Committee by Parliament. The Committee had received a letter from Minister Molewa asking the Committee to reconsider the section of the Bill which dealt with the Ministerial Committee. The concern of the Minister was that that Committee operated along the same lines as Cabinet Committees. In Cabinet, no voting took place and issues were decided upon by consensus. It was agreed that the matter could be placed before the Committee to see if it agreed. It was not something which the Committee should have too much of a problem with.

The Committee had insisted that there should be some dispute resolution mechanism if a dispute should arise and an entity for decision-making processes. However, the Minister had suggested that since that was an inter-governmental piece of legislation, the Ministerial Committee should operate along those lines. The Chairperson commented that he had also received a very detailed legal opinion from the Chief State Law Advisors on Clause 12 of the Bill, which spoke to the submission of the Marine Area Plans. Issues had been raised in that regard.

Clause 10 and 11

Advocate Radia Razack, Director of Legal Services, DEA, clarified that the proposed amendments applied to the DG and Ministerial Committee, which operated like the Cluster Committee in Cabinet. The idea was to mimic the processes in the way in which decisions were made. The two effected clauses were Clause 10 and 11.

The Chairperson interjected that the letter spoke only about the Ministerial Committee. It did not deal with the DG Committee.

Adv Razack, however, suggested that both the DG and the Ministerial Committees were intergovernmental bodies. What happened in the Cabinet cluster system was that a plan would first go to the DG Committee and then to the Ministerial Sub-Committees. They both operated in exactly the same way.

The Chairperson asked Adv Razack to take the Committee through the presentation.

Adv Razack commenced by elucidating that, according to the current formulation of the Bill, the DG and Ministerial Committee made decisions by majority vote rather than consensus.  If there was a deadlock, the DG from DEA or the Minister had a casting vote.  If absent, the Minister were absent, the Department of Planning, Monitoring and Evaluation (DPME) would play that role. The text was in the original version of the Bill and had emerged as a result of pressure from Departmental Officials in the Ocean Phakisa forum.  However, it was more practical to allow those committees to operate by consensus, which was a tried and tested method of decision-making at that level and gave full effect to cooperative governance.  Key to the rationale of the proposed amendments was that the elevation of Environmental Affairs in the decision-making, might result in other departments and sectors perceiving environment as having an unfair advantage and that might negatively impact on their participation in the process.  

The Chairperson confirmed that the Committee did not want any other proposed changes to the Bill other than the ones regarding the Committees and the decision-making process.

Adv Razack proceeded by outlining the current wording of Clause 10 and 11, which outlined how the committees in question made decisions by majority vote (See slide 4).  Adv Razack then referred the Committee to the proposed wording for clause 10(4) and 11(4), which allowed those committees to operate by consensus. The proposal was also to delete sub-clause (5) in both 10 and 11, which dealt with ‘…a decision on the majority’ (See slide 5).

Clause 12

Adv Suraya Williams, Principal State Law Advisor: Department of Justice and Constitutional Development, stated that the State Law Advisors had re-looked at the Bill.  Clause 12 had to be re-considered in view of subsequent judgements which dealt with Parliamentary oversight over the Executive since the State Law Advisors had last met with the Committee. At a meeting on 24 October 2017, the Committee had requested the State Law Advisor to look at the provision and to propose a draft, together with the Parliamentary Law Advisor, and DEA. After considering the discussions in the Committee, it had been proposed that Marine Areas Plans that had been approved by the Ministerial Committee, had to be tabled by the Minister in Parliament at least 30 days before publication in the Gazette. If Parliament was not in session, the marine spatial framework or marine area plan had to be submitted to the Speaker of Parliament at least 30 days before publication in the Gazette. Referring to sub-clause 12(2), 30 days after the marine spatial framework or marine area plans had been tabled in Parliament, the Minister had to publish the marine spatial framework or marine area plans in the Gazette. Those aspects that could not be published in the Gazette had to be published on an appropriate electronic platform.

The current draft of the Bill, Adv Williams stated, was the result of a meeting between State Law Advisors, Parliamentary Law Advisors and DEA. The draft provided, amongst others, that the Bill had to be tabled in Parliament for consideration by the relevant Parliamentary Committee. When the State Law Advisors heard that the Bill had been revised and the draft reappraised, the word ‘consideration’ was deemed problematic. The Constitution already provided for oversight mechanisms.  In the EFF and UDM judgment, the Court had dealt extensively with the mechanisms which the Constitution afforded Parliament to hold the Executive accountable, for example, via an Ad Hoc Committee or a vote of no confidence. Those mechanisms provided strong powers to Parliament to exercise Executive oversight. The proposal was that that insertion be included in the draft which was furnished to the Committee on 30 October 2017. The Bill had to be tabled in Parliament at least 30 days before publication thereof in the Gazette.

The Chairperson inquired whether the issue of interference was only that the Bill had to be tabled in Parliament and ‘considered’ at least 30 days before it was promulgated? Parliament would only be considering the plan before it was promulgated. When the State Law Advisors were advising, the safest thing to do was just to accept. Fundamentally, what needed to be achieved out of the process was to strengthen Parliamentary oversight over the process. The Bill only provided a framework. The real issue was going to be in the development of the Marine Spatial Framework and Marine Area Plans. The goal was to ensure that there was still a role for Parliament. It was not clear how Parliament was interfering.    

Discussion

The Chairperson opened up the discussion to the Committee members to raise questions.

Mr T Hadebe (DA), firstly, solicited the opinion of the State Law Advisor on the closed-term revenue proposed. Secondly, he asked how the Portfolio Committee was ‘interfering’?

Adv Williams responded that the State Law Advisor had no objection to the contents of Clause 10 and 11 (4). Secondly, with regards to Clause 12, the word ‘consideration’ was very broad.  If the Marine Spatial Planning Bill was referred to the Committee for consideration, the parameters of the ‘consideration’ were very broad. Taking into account the discussions of the Committee, the Committee had indicated very strongly that it wanted to exercise oversight of those plans. However, the Constitution provided

very effective mechanisms for oversight that Parliament could hold the Executive to account. Those mechanisms would be the channels through which to hold the DEA to account.

The Chairperson asked what made it ‘interference’ if there was a tabling and consideration before promulgation?

Adv Williams responded that it depended on what ‘consideration’ would mean. What was the purpose and parameters of ‘consideration’ by the Committee? She held that, in so far as the principle of the Separation of Powers was concerned, the question was how to provide for ‘consideration’ without infringing on the Separation of Powers? The Bill provided the parameters for the development of the Marine Area Plans. It listed strict principles, issues and matters that had to be taken into account in formulating and developing those plans. While the Executive was responsible for the development of plans, the legislature prescribed, among others, the parameters, what the content should be, and what it should comply with. The key goal was to take into account ‘consideration’ while keeping the separation of powers intact. The purpose of the Committee was oversight, but there were other oversight mechanisms.

The Chairperson reiterated that it was still not clear how the current arrangement infringed on the separation of powers. The plan was tabled before it could be promulgated. It was not as if the Portfolio Committee would seek to draft a plan. The plan would be presented to Parliament, referred, and the relevant Portfolio Committee would be briefed on the plan before the Minister promulgated it. Obviously, if there were concerns, the Committee or Parliament would raise them with the Minister. It would be up to the Minister to consider those concerns or to promulgate the plan as it was. There was nothing like ‘interference’ in the process. The Committee would have preferred a request from the State Attorney Law Advisor for advice on this matter, so it could have been discussed.  Only once the Bill had already been finalised, the Bill was referred back to the Committee for a different reason, which was almost unsolicited. The stated issue around the separation of powers was not readily appreciable.

Adv Veounia Grootboom, Senior State Law Advisor: Department of Justice and Constitutional Development, responded that the problem with the way the current clause was phrased was that it empowered the Committee to ‘consider.’ That was why the word ‘consideration,’ even in its ordinary form, was very important because the ordinary meaning was broad in itself. In the current formulation, ‘consideration’ by the Committee extended to the point of the ability to make a decision on the Plan which was in question. However, clause 11 had already empowered the Ministerial Committee to approve the plans. As such, apart from the Ministerial Committee approving the plans, the Legislature was also approving the plans. That would be a cause for concern when it came to the separation of powers. It would lead to practicality problems and dangers that would arise from the implementation of clause 12 of the Bill just by using the word ‘consideration.’ If the term ‘tabling’ were used, however, then the normal processes followed in that 30-day period. However, in the current formulation, the Committee had to ‘consider’ because the Legislature had given it the power in question over and above that which was inscribed in the Constitution.

The Chairperson, nevertheless, affirmed that the current formulation very clearly distinguished that the Ministerial Committee ‘approves’ the Plan while the Committee ‘considers’ the Plan. If the Committee had reservations about the Plan, it was the duty of the Committee to raise the concerns with the Ministerial Committee, but not to approve or amend the Plan.  He requested that those concerns be considered. The relevant structures would then do so.

Dr Z Luyenge (ANC) added that the issue of the separation of powers was not relevant to the matter that was being discussed. The role of Parliament superseded always the ‘powers that be.’ The consideration that was open to the Portfolio Committee was an extension of Parliament. The Committee was empowered as Parliament to consider what was brought before it by the Ministerial Committee. The Ministerial Committee, motivated, and the Committee would consider, approve and recommend to Parliament that Parliament had to take charge. It is unclear how ‘interference’ took place. In making a decision, Ministers did not have a ‘supernatural’ power over Parliament. Once it went to Parliament, the Ministers were also Members of Parliament. If they had issues, they could raise them at the level of Parliament. Parliament would also intervene when it needed to.

The Chairperson reiterated his lack of understanding concerning the submission because it had not been asked for.  The Bill had been finalised and was before Parliament. The only reason why it was brought back was to deal with the Minister Molewa concern, for which there were genuine reasons. To ‘smuggle’ other things in at that point would be inappropriate. If there were issues, they would be discussed. But from the perspective of the Committee, there should not be a problem with the current formulation.  He asked the Committee about whether the members had any concerns, as per the request of the Minister, with the use of ‘consensus’ rather than ‘majority voting’? It was a fair request and was in line with the mechanism of Cluster Committees of Cabinet.

Dr Luyenge, affirming the use of ‘consensus,’ highlighted that the notion of consensus promoted the interaction between views that were diverse. It was about ‘finding’ each other and agreeing on whatever was being discussed. Consensus was more than ‘majority voting,’ which only took into account a preponderance of numbers and not necessarily what was right.

Mr M Mabika (NFP), broaching on the Dr Luyenge’s reasoning, questioned whether Dr Luyenge’s reasons were the very reasons to motivate the Minister’s proposal. The difficulty was when consensus could not be reached, but a decision needed to be made. South Africa was a democratic state in which consensus was not always possible, but the way to move forward was by voting. If consensus was the preferred mechanism through which decisions were to be reached, what if consensus could not be reached?

The Chairperson reminded Mr Mabika that his argument was the original position of the Committee, with a view to providing certainty in all decision-making. However, because the Bill provided for coordination across the departments, the Committee’s work followed the conventions that were established in the Cabinet. In all ministerial clusters, there was no voting. How they took decisions was by consensus. The view of the Minister was that the Committee should not depart from that type of decision-making process. The Committee had to respect the view of the Minister in light of the fact that that was an intergovernmental Bill.

Dr Luyenge commented that the public administration dichotomy required an interface between doctrine and phenomenon. Doctrine was where decisions were made and referred to the role of Ministers. If decisions were taken by a vote, division prevailed in that institution. In consensus, there was a majority. There was also a democratic aspect to it. In the context of voting, there was merely consideration of how many were in agreement with a particular position, irrespective of what the facts were.

The Chairperson concluded that, on balance, the Committee did differ that much with the Minister’s submission. The Committee was not in agreement with changing Clause 12 and it would remain. If there were any further issues, the Chairperson would engage with the legal advisors. As a last resort, it should be clarified as to what ‘consideration’ means. The idea was to take the Bill to the House the following week, but that would depend on how soon the changes were made, considered and taken back to the House.

Adv Williams queried whether the proposed Amendments to Clause 10 and 11 would be the deletion of sub-clause 5 in both and the substitution of sub-clause 10 (4) and 11 (4) as per the presentation.

The Chairperson confirmed the changes. The Chairperson reminded the State Law Advisors that they should speak to the Committee first to inquire whether there was a need for advice so that the State Law Advisor’s time need not be wasted.  

Briefing by the South African Weather Services (SAWS) to respond to an anonymous tip-off detailing recruitment, administrative and governance issues

Advocate Derek Bloch, on behalf of the board, extended appreciation to the Committee for the invitation. The board welcomed the opportunity to respond to the allegations contained in the anonymous tip-off and to clarify some of the factual inaccuracies in respect of the anonymous tip-off.

Before the board members introduced themselves to the Committee, the Chairperson of the Board, Ms Ntsoaki Mngomezulu, asked to be excused from presenting as she was not well.

The Chairperson explained that the procedure was usually that the Chairperson of the Board did the introductions of the Board members.  

Advocate Bloch asked if the Committee would grant the Board members the opportunity to give context to some of the responses.

The Chairperson answered that it was up to the Board as to how it may want to address the Portfolio Committee. While the Board had prepared responses, if there was any additional information, the Board was allowed to give it to the Committee. Mr David Lefutso, SAWS Board member, would take the Committee through the allegations of the anonymous tip-off, as well as the Board’s responses.     

Allegation 1

Mr Lefutso read allegation 1 relating to the appointment of Ms Julia Mphafudi, which claimed that “The Board was involved in the recruitment of Ms. Mphafudi…[S]ome of the Board members insisted that Ms. Mphafudi be included in the shortlist of the candidates for this job specifically by Mr David Lefutso. Ms Mphafudi was duly included in the shortlist and interviewed.” (See slide 1).  

Response 1

Mr Lefutso read the response of the board, specifying the due procedures by which Ms Mphafudi was elected and that “Mr David Lefutso was not one of the Panel Members who interviewed the candidates for the position of General Manager: Human Capital Management” (See slide 1). The Chairperson of the Task team was Dr J. Tshipa. Four candidates were interviewed. The scoring sheets for that station were available. That was additional information which the Board had received the previous day. The Secretary would provide the copies of the emails to the Committee Members.  

Allegation 2

Mr Lefutso continued that Allegation 2 was with regards to the two candidates that were selected for psychometric tests (Mr X and Ms Mphafudi). The allegation claims that Ms Mphafudi’s results were very poor and established that Ms Mphafudi required further development. It was also claimed that the Board ignored the results of psychometric tests and proceeded to recommend and appoint Ms Mphafudi. The stated reason was because Mr X was connected to Dr Makuleni which was why he was not appointed.

Response 2

Mr Lefutso gave the response by the Board which was that Ms Mphafudi had scored 41/45 while Mr X scored 34/45: “The Interview and Selection Panel applied its mind on the interviews that were conducted by it, the results of the psychometric tests and other probity checks. It was satisfied with the process to recommend to the then Chief Executive Officer to appoint Ms. Julia Mphafudi as a preferred candidate” (See slides 2 and 3).

Mr Lefutso added that the Chief Executive, Dr Makuleni, had scored Ms Mphafudi the highest among all the four candidates: “She duly appointed Ms. Julia Mphafudi without any reservation” (See Slide 2). 

Allegation 3

The third allegation was that “[t]he Board ignored a highly qualified candidate, ignored the results of the psychometric test, and forged ahead in appointing her in the context that the other candidate was linked to Dr Makuleni.”

Response 3

Mr Lefutso highlighted the response of the Board, namely, that “[t]he Recruitment and Selection Panel executed its task professionally as per the Recruitment and Selection Policy.” Moreover, “SAWS is willing to release the results of the psychometric assessments, if required, once all the necessary legal prescripts pertaining to psychometric assessments are complied with” (See slides 3 and 4).

Allegation 4

The fourth allegation was that “[w]ith Ms. Mphafudi now fully entrenched as a SAWS employee and starting to be bold to engage in less than honest activities, the Board’s intentions are beginning to reveal themselves” (See slide 4).

Response 4

In response, Mr Lefutso argued that, “[w]ithout specific details and corroborating evidence of this allegation, it is not possible to respond, except to say this allegation is baseless” (See slide 4).

Allegation 5

The fifth allegation concerned the disciplinary process Ms. Mphafudi’s was alleged to be undergoing “by her former employer, the state entity Safcol, when she was interviewed for this position” (See slide 4).

Response 5

In response, Mr Lefutso highlighted that “Ms Mphafudi disclosed that her previous employer had disciplinary charges against her.” Moreover, “it was not obligatory for Ms Mphafudi to do so as she was no longer in the employ of Safcol and since a settlement agreement was concluded between the parties” (See slides 4 and 5). Mr Lefutso added that Ms Mphafudi had provided a copy to the SAWS Board.

Allegation 6

The sixth allegation concerned Ms. Mphafudi’s “inflated increase of salary within less than a year of commencement of her employment duties” (See slide 6).

Response 6

In response, Mr Lefutso stipulated that “[a] motivation was made by the Ms. Mmapula Kgari, who at the time was the Interim Chief Executive Officer of the South African Weather Service in January 2017, for Ms Mphafudi to receive an improved offer of R200 000. This measure is normal in the recruitment of talent as it was done to put Ms. Julia Mphafudi in a position similar to which she was in before she joined the organization.”   

Allegation 7

The seventh allegation concerning Ms Mphafudi, concerned the “complete breach of the SAWS Governance processes in the commission of wasteful expenditure.”

Response 7

In response, Mr Lefutso commented that “Ms Mphafudi resumed her official duties on 5 December 2016 for a 5-year period during that time Dr Linda Makuleni had left the organization in November 2016” (See slide 6).

Allegation 8

The eighth allegation was that, amongst others, Ms Mphafudi had “no regard of the current CEO she is actually running the entity through the Board” (See slide 7).

Response 8

Mr Jerry Lengoasa, Chief Executive Officer: South African Weather Services (SAWS), responded to the allegation directly by stating that there was no substantiated information provided on the allegation of undermining of the CEO by Ms. Mphafudi, thus making it difficult to respond to the allegation. Relations between the CEO and Ms. Mphafudi were sound, as with all EXCO members.  Mr Lefutso commented that “[t]he Board and the CEO have no record of anyone approaching it to report Ms. Julia Mphafudi of circumventing the current Chief Executive Officer in running the organization through the Board” (See slide 7).

Allegation 9

The ninth allegation concerned claims pertaining to “salary disparities”.

Response 9

Mr Lengoasa clarified the Remuneration Strategy and HR Policy Framework (see Annexure “E”) developed and approved by the Department of Environmental Affairs (DEA) (See slide 8). He also clarified the Strategic Objective of Salary Parity, the Implementation Plan, the Employee Engagement Process as well as on the Financial implications (See slides 9-11).  Mr Lefutso concluded that once the salary adjustment had been made, it became a recurring annuity.

Allegation 10

The tenth allegation contained claims which implicated the RADAR Network. Those included that while “SAWS remains a thorny issue,…the Board has never taken any initiative to establish what is the root course of the problem except approving funding to fix what is seemingly unfixable.” In conclusion, “[a]ll projects that are supposed to be overseen by the CEO they suddenly given to either Ms Mphafudi or Ms Shongwe so that the Board have control and have influence.”

Response 10

After elucidating the Board membership at the time of the procurement of Radars, Mr Lefutso explained the 2017 Internal Audit, and the Board decision to conduct a forensic investigation, concluded that “Ms. Julia Mphafudi role was…only limited to providing secretarial services in respect of the radar forensic tender in view of the fact that she was not employed by SAWS at the time of procurement of the radar. The procurement of forensic investigator is underway to get to the bottom of this serious matter. The Honourable Committee will be advised accordingly once the investigation is done through the Office of the Minister.” Furthermore, it was clarified that Ms. Busisiwe Shongwe was the Chief Financial Officer of the South African Weather Service and was responsible for all matters pertaining to supply chain management in terms of the provisions of the law, the Public Finance Management Act, No. 1 of 1999 and PPPFA.   

Allegation 11

Allegation 11entailed the question of the land development of “the SAWS land situated in Waterkloof.”  It was alleged that when “the new CEO arrived and started running with the process…[,] the Board…stopped the process and they are questioning the CEO including wanting to craft the terms of reference for the appointment of the service provider to run with the project. This process as well has been removed from the CEO now is owned by the CFO Ms Shongwe.”

Response 11 

In response, Mr Lefutso referred the Committee to Annexure “F”, which showed the processes followed in respect of SAWS’ Land Development.

Allegation 12

The twelfth allegation related to office accommodation, which implicated Ms Mphafudi and alleged that when “the Board directed the CEO to go on tender to source the office accommodation, which the CEO did, the CEO followed the process according to the organization’s needs.” However, “[i]n the process the junior staff made errors, which ended up in changing the time line on the lease of the new office accommodation, the same Board are now up in arms announcing that the transaction is irregular and there is even a rumour that some members of the Board are advocating to charge the CEO.”

Response 12

In response, Mr Lefutso specified the details of the tender process, highlighting that in all correspondence there was no indication of Ms. Mphafudi’s involvement in the transaction other than as an EXCO member in meetings where those matters were discussed and agreed to prior to tabling at the Board.

Allegation 13

The Chairperson asked Mr Lefutso to skip the allegation as it only referenced ‘rumours’, which could not give any certitude. 

Discussion

The Chairperson asked whether the Board could give feedback on what the Board had decided in its deliberations the previous day.   Mr Lefutso answered that, having deliberated on the matter, the Board had resolved to request an internal audit to look into the whole procurement process from beginning to end. The Board was also commissioning a legal opinion to ascertain why the bid was inflated in the way it was.

The Chairperson inquired as to the costs involved.

Mr Lefutso responded that, according to the service provider, the procurement was tendered for R53 million for a period of five years. However, the CEO had signed a lease for R63 million for four years.

The Chairperson asked for feedback as soon as the processes had been completed.

Mr Hadebe welcomed the internal audit into the tender processes. When it had negotiated the salary package, did SAWS not explain to the individual what it entailed? When SAWS hired employees, the potential employee had to know what he or she could expect to receive from the employer and then compare that salary with what he or she was receiving from the current employer.

Mr Mabika agreed that the allegations should be tested even further. It was unlikely that, when allegations were made against someone, that the individual would own up. There were gaps in the responses. For example, there were allegations which spoke to the hiring of a less qualified candidate. There was no clear answer as to whether that allegation was true or not. Moreover, why would the Board prefer a candidate who was undergoing a disciplinary process, before it was concluded? Furthermore, the person had accepted a lower salary than what she was getting. The impression was that the person was ‘running away’ from her old job because she felt that she was perhaps not going to succeed in the disciplinary processes. Soon after she had accepted the salary which was said to be less than what she had been getting, the adjustment was made. Additionally, it was also stated that the CFO was appointed although the CEO had reservations. What were those reservations?

The Chairperson asked Mr Mabika to take the Committee to the number to which he was responding. Mr Mabika referred to allegation 10. The Chairperson informed Mr Mabika that, according to the report, Ms Shongwe had presented a settlement agreement. At the time of her appointment by SAWS, Ms Shongwe was no longer under investigation.  Mr Mabika believed that when the hiring process was underway, there had been a cloud and SAWS could not say for certain that it was hiring a ‘clean, good person.’ A settlement presupposed that there had been a ‘problem.’

Dr Luyenge asked where the allegations are coming from?

The Chairperson explained that the Committee had received an email which the Committee had regarded as an anonymous tip-off about issues of management and governance relating to the Board and in the SAWS entity. The Committee evaluated them, concluded that the allegations were serious, and the Board had to be given the opportunity to respond to the allegations. The Board had come to the Committee the previous week. The responses had not been adequate because too short a period had been given to SAWS to respond to those allegations. That was why SAWS was back that day. The Committee was treating the matter as an anonymous tip-off.

Dr Luyenge proposed that perhaps the Committee was hell-bent on ignoring the motive of the ‘dark forces’ that systematically wanted to rubbish everything that the government was doing. The ‘bringing him or her down’ syndrome was a norm in South Africa. The Committee was engaging someone it did not know. There was the possibility that, once millions had been spent to assess those allegations, they might ultimately be found to be baseless. It was important to determine the source and the motives of the allegations. It was good that the Committee had engaged the leadership of SAWS. However, the process should not be escalated to the extent of establishing a forensic audit, which required human and financial, based on an anonymous letter. Too often it was the case that individuals made allegations, but the problem was not with the government. The problem was with the person making the allegations. It would be suitable to give the benefit of the doubt to the person who was responding.

Mr R Purdon (DA) contended that the allegations were not well written at all. It was quite evident that the person making the allegations had a problem with Mr David Lefutso, a name which recurred in the allegations. The response to allegation 1 that ‘…some of the Board members insisted that Ms. Mphafudi be included in the shortlist of the candidates for this job, specifically by Mr David Lefutso’, did not address the allegation. Response 10, which suggested that the Task Team Chairperson had resigned and a new Chairperson, Mr Lefutso, had been assigned, the question was who appointed the Team and the Chairperson.  Regarding allegation 13, which purported that there was “…apparently a rumour making rounds” about Mr Lefutso, details were needed around Mr Lefutso.

The Chairperson highlighted that there was a context to those allegations which the Chairperson would not speak to. When the Committee received those kinds of allegations, without the benefit of responses, the allegations had to be taken seriously. One could not reach conclusions before giving an opportunity for response by those against whom the allegations had been made. That the Committee had done. The allegations in questions were quite serious. The Committee regarded the allegations as coming from someone who had intricate knowledge of the workings of the organization. The allegations came against the background of the Committee’s interactions with the Board of SAWS and the issues which the Committee had expressed its views on regarding the Board and how the Board functioned. There was a report to that effect which the Committee was busy processing internally. When allegations like that arose, referring to the Board and members thereof, it was only fair for the Board to be given an opportunity to speak for itself. The Committee was not requesting a forensic audit. That was what the board itself had said it had resolved to do.  Regarding allegation 10, the Board had responded that it was investigating the matter regarding RADAR and had already obtained a Treasury deviation.

Mr Lengoasa explained that the Board was at the point of appointing a forensic investigator to investigate RADAR, which was an issue that had occurred sometime back, namely, 2008. In the context of Dr Luyenge’s concern, the question arose as to why the issue had not been investigated at the time it took place if there were allegations of impropriety in how the RADAR network was obtained.  Why wait for 10 years to start investigating? Should not a deviation happen when it was a matter of urgency and emergency? It was difficult to fathom how 10 years later, there was still an emergency which required Treasury to deviate and to spend an additional R 2 million to investigate. Responding to Dr Luyenge, he said that the call for an internal audit was from the Board itself to look at the acquisition of office space. The CEO had signed an amount which exceeded the amount the board approved, for four instead of six years. It seemed that the Board had put its sights firmly on the CEO. The anonymous tip-off alleged that the Board want to ‘take out’ the CEO. The CEO was now under investigation and had requested the legal opinion. The next time the Board appeared before the Committee, the CEO might be under suspension, which might confirm some of the nuances that were appearing in the allegations.

The Chairperson emphasized that one could not ignore the context in which the allegations had been made. The Board member’s name had been mentioned in the past when the former CEO was dismissed and that he had played a critical role in ensuring that the CEO was fired. The CEO was also implicated in the RADAR investigations. In response to Mr Purdon’s concern that SAWS’ response to allegation 1 did not address the allegation, only the former CEO of SAWS, Dr. Linda Makuleni, could answer the question and she was no longer on the Board.

The Chairperson asked for the outcome of the psychometric tests because the report did not speak to that issue.  Was the person, based on the psychometric tests, ‘appointable’? What was the purpose, and how important, were psychometric tests in the process of appointment? If they were not important, what was the use of having psychometric tests since they cost money? The negotiations for an additional remuneration of R200 000 was cause for concern.

The Chairperson referred the meeting to Annexure B, commenting that the salary had not been included in the advertisement. Unless the condition of appointment was that SAWS would negotiate the salary, the first question a person who was looking for employment was about the salary package. There ought to be an understanding around salary packages for positions in public entities, for example, the Chief-Director that was advertised. In the DEA, one Chief Director did not have a higher earning than another outside of the band that was provided for by the regulations. Given the allegations that referred to such negotiations taking place, could the Board explain what the situation was in that regard? It was very worrying because it suggested that people were on the same level but were not earning the same salary. Regarding response 7.2, which stated that the “Committee is aware of the irregular expenditure in the Koikanyang matters”, could the Board explain what the Koikayang matter was all about?

Ms Mngomezulu asked that Mr Lefutso, Mr Nicholls, and Mr Lengoasa respond to the questions posed by the Committee.

Mr Lengoasa responded, firstly, regarding the Koikayang matter.  The Portfolio Committee would recall that when SAWS reported on the Annual Report and, in the audited financial statements, there were matters related to irregular expenditure. In the reporting of the irregular expenditure, there was legal expenditure, concerning which the Committee requested that detail be provided. One of the matters was the legal opinion that was sought in response to a letter from the then-CEO indicating that she would take legal steps against the organization for the decision of the Board regarding her contract. That particular transaction was not implemented by the Executive as per the directive of the Board. The Board then delegated the Chairperson to expedite legal assistance to offer guidance to the Board. That was done on the basis of an emergency. However, the Auditor-General’s finding was that there was no emergency as per the definition of ‘emergency’ acquisition or procurement of services. The Board had been corresponding with the Committee not only in that matter, in which Koikayang was the appointed legal firm, but in another matter as well because the amounts that were budgeted for, had been exceeded.

Mr Lefutso referred the Committee to Annexure C of the document provided and proceeded to read the letter addressed to Mr Lefutso from Ms Makuleni, detailing Ms Makuleni’s ‘preferred list’ of candidates and the reasons (See Annexure C). Prior to that email, there had been an email to Ms Makuleni and Mr Lefutso from Ms Khanyisa Hanisi, who had sent a list of 49 potential candidates, requesting that the three top candidates be selected.  Those names would be circulated to the rest of the panel members (See Annexure C).  Ms Hanisi sent five CVs. One of those CVs belonged to Ms Mphafudi. On 13 July 2016, Mr Lefutso sent a letter back confirming receipt of the CVs.  Mr Lefutso had not proposed a CV or a name. The short-list was generated by Human Resources and could be proved by the train of emails between Hanisi, himself and Ms Makuleni. As further proof, Mr Lefutso did not sit in the interviews for the appointment of the General Manager: Human Capital Management. There were minutes and scoring sheets which clearly showed who was at the meeting, Mr John Tsetsepa, Dr Linda Makuleni, Advocate Bloch, and Ms Mngomezulu. The allegations were false and had no basis in fact.

The Chairperson interjected that Mr Lefutso had recommended two to be interviewed on the email of 13 July 2016.  The contention that Mr Lefutso had nothing to do with the appointment process was not true.

Mr Lefutso agreed but added that his recommendations were based on the list that was provided.

The Chairperson affirmed that Mr Lefutso was involved in the selection, albeit not to the extent that the anonymous tip-off alleged.

Mr Lefutso, in response to the query concerning the qualifications of Mr X and Ms Mphafudi, stated that both had a Master’s degrees. He read out their respective qualifications (See Annexure D).

Mr Mabika registered his concern that it was not fair for Mr Lefudsi to say that Mr X ‘only’ had a Master’s in Labour Relations Management.  One did not just ‘jump into’ a Master’s. One could not get a Master’s before a junior degree.

Mr Lefutso answered that the qualifications were in Mr X’s CV. Moreover, it was possible to get a Master’s degree without a Matric certificate.

The Chairperson asked whether SAWS ended up interviewing only two or three candidates? Mr Lefutso confirmed that four candidates were interviewed and two were sent for psychometric testing.

The Chairperson asked what the outcome of the psychometric tests were? Mr Lefutso replied that, once the two candidates had been recommended for psychometric testing, both went for tests and the results were then forwarded to Human Resources and to the Panel Members, who had interviewed the candidates. The Panel deliberated on the results of the psychometric tests and they were of the view that the preferred candidate was Ms Mphafudi.

The Chairperson asked what the results were of the psychometric tests? 

Ms Mngomezulu intervened that, at this present juncture, the Board cannot remember off-hand. What the Board could do was to ask permission to make available the scores of the assessment. Since the assessments had taken place in 2016, there was the risk of misrepresenting the candidates.

The Chairperson commented that he thought that the Board had the results and the only reason why the Board was not presenting them to the Committee, as per the report of the Board, was because they are confidential.

Professor Mokoteng added that the psychometric tests were not used to determine a given candidate’s suitability or not. They were used to determine the areas where the potential candidate needed further development in the specific position where they worked. 

The Chairperson asked the board members to answer the Committee’s questions directly. Apart from what the purpose was of a psychometric test, what was the report from the psychometric testing? Ms Mngomezulu responded that, according to the results, both candidates had gaps, but they were both employable. The report could be submitted to the Committee.

Mr Lefutso explained the process followed in salary negotiations. All candidates, prior to being interviewed, usually indicated what their salary expectations were. For example, the salary could range from R900 000 to R2 million, depending where the candidate was coming from. Ms Mphafudi stated that her salary expectation was R1,5 million. The negotiations regarding salary were not the concern of the panel or Board. It was entirely the responsibility of the candidate and the CEO. The Board had not known that there was a salary discussion between Ms Mphafudi and the interim CEO at the time. It was not the place or function of the Board to approve salaries. There was a band in which executives were remunerated, depending on qualifications, experience and the grading of the job. It was entirely the prerogative of the CEO to determine the salary of the employee. Acting CEO, Ms Mapula Kgari, was within her right, with the available information that she had, to increase the salary to that level. There could have been an error in offering her R1, 290,000 originally.

The Chairperson asked whether the issue of salary negotiations did not come to the Board? Mr Lefutso affirmed that the Board was not involved in the salary negotiations of individual employees. The only time the Board was involved in any salary negotiations was perhaps to set up a salary for the CEO, which it employed directly.

The Chairperson asked whether it was the management that finalized salaries. Was Ms Kgari still in the employ of SAWS or had she left? The Board affirmed that Ms Kgari had left.

The Chairperson stated that the current practice of salary negotiations had to be looked at. The current arrangement created a discrepancy within the current organizational remuneration structure and did not promote uniformity. It was something that had to be looked into, perhaps again during the Annual Performance Plan.

Ms Limpho Makotoko, Chief Operating Officer at the Department of Environmental Affairs, commented that the negotiation of salaries was provided for by a provision in the Public Service Act.  Whenever a candidate was employed, they could not be worse off than where they were previously. There were different notches, but even people occupying the same position had different salaries depending on what they had before.

The Chairperson affirmed that there had to be a band within which salaries had to be negotiated.

The Chairperson asked for a report on the salary structure of SAWS. A person could not negotiate outside of what the salary band permitted.

Regards to reservations of the CEO and the appointment of the CFO Mr Lengoasa was requested to respond. He confirmed that he was part of the panel that had interviewed the CFO.  He had had no reservations as purported in allegation 10.  The minutes of the interview process were available, including the outcome thereof. Mr Lengoasa did not know Ms Shongwe before the interview sessions. At no stage, had he expressed any reservations because he had not known her. Ms Shongwe had joined SAWS on 2 January 2018.

With reference to the RADAR investigation, Mr Rowan G Nicholls, SAWS Board member, responded that the reason for putting details of the RADAR contract, which had started in 2008, in the responses was to indicate that Ms Mphafudi had nothing to do with RADAR. What was being investigated at the moment related to certain allegations at the end of the contract, concerning guarantees related to the maintenance of the radars and the request for a payment of R1 million for certain maintenance undertaken which should, in fact, be paid for under the guarantee. Management was going through a Supply Chain Management process to employ an investigator.

The Chairperson asked Mr Nicholls when the contract in relation to RADAR had ended. Mr Nicholls explained that the contract had ended in 2012.

Mr Lengoasa explained that SAWS had gone into a closed bid with National Treasury for the investigation, was precisely because of the sensitivity of the matter and the fact that the project which had started in 2008 and was supposed to close in 2012. Since the reasons why SAWS chose a closed tender as opposed to an open tender was a matter that was being investigated, the Board asked to be excused from discussing the details of the matter.

The Chairperson responded that he saw nothing wrong with the Board telling the Committee what issue it intended to investigate. The Board intended to set aside R2 million to investigate something which had happened 10 years ago and was meant to have been concluded in 2012. Unfortunately, the reasons had to be made public. 

Mr Nicholls noted that that particular matter had been reported the previous year, 2017, in SAWS’ Annual Report as part of its financial statements.

Ms Mngomezulu, SAWS Chairperson, concluded by highlighting that allegations had been made and investigated a long time before the commencement of the tenure of the current Board. The investigation had been undertaken by PriceWaterhouseCooper. The report on the process was on the database of the DEA. No major wrongdoing had been detected in the report. However, the same person who had sent the current allegations, had also sent a letter alleging that there were tender irregularities and had sent a letter to the Public Protector. The Public Protector had conducted an investigation and had issued an interim report. SAWS had been asking the PP to hand over the final report, which she had said she would.  The investigation had been conducted by the Minister in 2008, but the same person who was not happy with the forensic audit that had been conducted and had taken the matter further to the Public Protector.

The Chairperson stated that he had received the interim report from the Public Protector.  The Committee had written to the Public Protector to request the final report. The previous Public Protector had written- to the Committee to ignore the report that had been sent at the time. The Committee had raised the fact that the final report had to be concluded because it was unfair to investigate a person for so many years without concluding the matter. Yet, the board was paying R 2 million for an investigation. It was important to work on the basis of investigations that had already taken place. However, the decision of the Board to investigate the two items which had been discussed had to be respected. Once the investigation was complete, the Board should report back to the Committee.

Matters which took place in public institutions called for public accountability. The Committee had a right to ask questions about the entities. It was the duty of the Committee to ask questions and to be provided with answers. It did seem that, based on the responses received from the Board and the information at the Committees’ disposal, that, in the main, there was nothing untoward in the processes of appointment. It did seem like the appointment process was above board. The Committee would like access to the psychometric tests and the skills, so as to ensure that the person in question had been remunerated within the correct band for the position.

The only issue of concern was the issue around the new CEO. The nuances in the responses revealed that the new CEO was in the firing-line. The Committee would like to be briefed on the matter. Before the previous dismissal, the Board had claimed that everything was fine. It was unsustainable to have an institution that was unstable. It was about time that the institution was stabilized. The findings of the Committee were an aid to putting SAWS on the path to stability. The Committee was impressed with the CEO when it had interacted with him. It would be very sad if the new CEO was suspended.   

Briefing by the SAWS on their Annual Performance Plans for 2018/19

In the interest of time, the Chairperson asked for a brief summary of the Annual Performance Plans for 2018/19. It was concerning that while the Plans were being presented, there were unresolved issues in the board. That had implications for the execution of the Plan itself. In discussing whatever the CEO was alleged to have done, it was important to consider the stability of the organization. If there was something wrong, a blind eye could not be turned on it. However, the organization could not persist in firing and replacing people.

Mr Lengoasa thanked the Committee for the opportunity to present SAWS’ Annual Performance Plans for 2018/19.  APP Improvements for 2018/19 equalled 30%.  SAWS was not able to radically depart from what was previously approved as part of the 5-year strategic intervention, explaining where purely due to changes in strategic direction and alignment there will be differences between the APPs of the past.  SAWS had not changed the fundamental strategic objectives. However, a few changes have been made within the various strategic objectives.  After spelling out the various changes in this regard (See slide 5), Mr Lengoasa referred the Committee to the breakdown of SAWS’ strategic objectives which, among others, clarify the strategic goals, strategic objectives, the targets for financial years 2018/19, 2019/20, 2020/21 and expectations of revenue.

Key strategic objectives included the development and provision of meteorological and related products and services for targeted communities nationally as well as developing and market meteorological and related products and services for specific economic sectors.  Upgrading, expanding and optimising infrastructure was another objective. Employment conditions, partnerships and growth of revenue streams would also be addressed.

By way of conclusion, Mr Lengoasa briefly referred the Committee to the SAWS’ Risk Management Plan, comprised of Strategic Risks and Mitigations Measures.    

Discussion

Dr Luyenge asked for the percentage of the vacancy rate within SAWS and whether the organogram of SAWS was fully populated. Furthermore, in terms of community participation, what role did communities play in the operations of SAWS? Moreover, did SAWS have an asset register and was there a depreciation policy? The lifespan of assets spoke to the ability of an organization to be productive. When and where were SAWS’ assets manufactured? It was important for SAWS to promote the notion of industrialization and localization, that is, the ability of the organization to utilise locally and promote the local production. Who were the service providers of SAWS? Were goods sourced internationally?

Mr Hadebe explained that he had received correspondence from a researcher who had requested raw data from SAWS to study the effects drought and how it came about. However, her frustration was that, when she had requested the information from SAWS, they had charged her more than R 2 million. Was it the policy of SAWS to sell data if it was going to be used for scientific research? What was the cost of data that was made available for public research?

Ms H Nyambi (ANC) asked about strategic objective 2.1.  How did SAWS intend to reduce the amount of lightning fatalities in rural areas where most victims of lightening fatalities live? Moreover, in strategic objective 2.1, a distinction was made between tier 1, 2 and 3. What was the distinction between those three tiers and why was tier 1 the most important?

Mr Purdon, referring to strategic objective 2.4, asked if SAWS had done a cost-benefit analysis in making space for its head office compared with building its own? If SAWS intended to build its own head office, would it be on SAWS own land or would land have to be bought? Moreover, where would the two regional offices be established?

Mr Lengoasa told the Committee that a cost-benefit analysis had been done and was available. The land was SAWS-owned.  37 hectares of land in Waterkloof had been assigned to the SAWS agency so that it would not be going to the market for land. Furthermore, with the acquisition of the radars, one of the challenges faced by SAWS was ageing infrastructure. RADAR was one the most expensive of SAWS’ assets. The price of radars was about R 240 million and their lifespan was 25 years. At the end of 25 years, an even higher sum would be needed to replace the infrastructure. In the view of SAWS, that was unsustainable. SAWS wanted to split the infrastructure of SAWS. SAWS had 14 radars in total across the country. New marine radars, which are slightly less expensive than weather radars, were being considered. The idea would be to break the network down to tiers. The first level tier consisted of about four to five radars, which had the most up to date technology and which would be available 96% of the time. The second tier could be available at a lesser extent. However, as new technologies were acquired, the ageing technology would migrate into the rest of the network. That would ensure the sustainability of the network going forward. A problem in the past had been to purchase an entire network, which led to an ageing network where the entire network aged at the same rate.

Furthermore, Mr Lengoasa added, SAWS’ lightning detection network measured ground-to-earth strokes. It did not measure cloud-to-cloud strokes, which was also important. In terms of SAWS’ outreach to communities, SAWS was working with COGTA, which had community workers in its cadre of staff. SAWS worked very closely with COGTA in reaching out to communities to provide detailed information on the times of the year when there was the highest risk for lightening, especially when there were volatile and fast-developing storm systems over parts of the country.  

The drought in the Western Cape was of great interest to many researchers. Numerous requests for raw data had been made. There was a policy for cost recovery, which was the cost of one individual processing the request and making the data available. There were challenges. If an individual asked for the entire network, it took more time. The costs, however, would not reach R 2 million. SAWS could have a follow-up discussion with the individual to discover how best it could help.

There was a data policy, which also entails the selling of data. However, that should more accurately be understood as ‘cost recovery.’ SAWS was consistent with the World Meteorological Organization’s policy on making data freely available for research purposes. SAWS was working on a new website where researchers could register. Through that process, the researcher could go shopping for data as they wished. If one was not a researcher, one would have to pay. Even if with researchers, SAWS would like them to understand the real costs of making the data available. To get data required investments in infrastructure, which yielded the data which researchers required.

Mr Lengoasa assured the Committee that the Board would come back to the Committee with a comprehensive database of SAWS’ service providers. SAWS did have an asset register, a depreciation policy and an asset disposal policy. Whether SAWS had implemented those policies as best as it could, was up for discussion. Most of SAWS’ infrastructure was imported, for example, the radars, the lightening detection networks and most of SAWS’ sensors.  Most of the infrastructure was imported from Europe. There were very few South African companies in the weather space in terms of instrumentation. SAWS would be looking at acquiring some infrastructure of those companies for its own use.

In recent discussions while briefing for the Inter-Ministerial Task Team on drought, SAWS was challenged about the Southern Ocean and the role of the ocean and its frontal systems that brought rain into the Western Cape. SAWS’ understanding of those systems from a scientific perspective was not what it could be. It was quite a vast ocean area and South Africa did not have the resources to cover it. In most instances, South Africa relied on international assistance to deploy a minimum of 40 water buoys in the Southern Ocean. The Minister proposed that SAWS produced a high-level business case that justified why South Africa would need those investments. The CSIR was already addressing work on that data for the near-shore. The team had completed the business case. It was now left to the CEO to determine how the plan could be advanced to the Ministers. There was a case to be made in the domestic investment in the initiative.

Regarding vacancies in SAWS, the agency was in the process of filling the most critical vacancies, starting at the senior management level, where there were no major gaps. There were some gaps, especially on the observer side. There were people in training with a view to filling those positions. Overall, SAWS was challenged in that it had 60 bursars, 32 of whom were internal and 30 were external. At that point, with SAWS budgetary constraints, SAWS might not be able to absorb all 32 bursars. SAWS was, however, looking into how best it might address the challenge.

Mr Purdon asked again for clarification on where the two regional offices were located.

Mr Lengoasa stated that the land was in Waterkloof near Erasmus Dam. The regional training centre, which was located in the Head Office, was a centre designated by the World Meteorological Organization. It provided specialised training in meteorology, not only for South Africa, but for Sub-Saharan Africa. One of the challenges faced by the centre was that the centre was not cost-competitive because much of the programme (for example, accommodation) was subsidised by the host country. The establishment of the Head Office would be at the Waterkloof as well as the two regional offices. SAWS had no intention of opening new regional offices, but there were two instances where SAWS had an opportunity to acquire new offices that were previously purpose-built for the weather services but were owned by municipalities. SAWS was going through the processes to establish those two offices which were part of the assets of the SAWS.

Mr Mdabambi gave clarity in terms of the number of vacancies. The previous year, SAWS had conducted a realignment process. In anticipation of that process, SAWS had delayed in filling certain positions. That process had resulted in roles changing within SAWS. SAWS had begun filling the vacancies. Some of them would be filled in the new financial year.

The Chairperson asked when the organizational review would be completed.

Mr Lengoasa answered that the Board had given approval in July 2017. After the executive level, the senior management level had been reviewed, where significant consolidation had also happened. SAWS was reviewing the manager level and especially the regional offices, as there was a need for significant changes in that area.

The Chairperson asked for a briefing on the organizational review because it seemed that quite a serious restructuring was taking place. Referring to Annexure F, which addressed land development, he asked if the Board could take the Committee through the plan to develop the land? Annexure F also addressed the matter of Public Private Partnerships.  Could the Board provide a summary of that?

Mr Lengoasa read from Annexure F, highlighting the aims of the Project, its registration as a PPP, a breakdown of the steps that had been taken in developing some of the reports, e.g. Environmental Impact Assessments, Road Traffic Assessment etc., the location of the project relative to the N1 highway, a description of the PPP process, and the completed service. He made reference to the historical and the most recent challenges and activities. In terms of the most recent activities, the Project had re-commenced in 2017 as per the strategic plan. The CEO had set up a Land Development Task Team, which reviewed the terms of reference. SAWS then went to the market and embarked upon a competitive bidding process. SAWS was not successful in its first bidding. All the details were important for historical records. SAWS was currently requesting the assistance of the DEA and well as National Treasury to assist with the procurement of the transaction. The budget that had been requested from the Medium-Term Expenditure Framework had not been approved. That would be part of the discussion with the DEA to either co-fund the activity or to find other ways of financing.  SAWS had also provided proposals as to how it could advance in the project. By way of conclusion, SAWS had tried to link the move to a temporary new head office with the development of the new head office.

The Chairperson asked why a PPP was utilised and why SAWS could not develop the property by partnering with other government departments, for example the PIC.  Had SAWS ever considered that avenue? From the budget that SAWS was allocated every month, it was quite clear that could not develop a head office. Other government departments had to play a role.

Mr Lengoasa replied that the PIC had not, to his knowledge, been approached. It was something to look at. The use of a PPP had been decided in 2012. In the Medium-Term Expenditure Framework proposals that Mr Lengoasa had found before he interviewed for the job, there had been a proposed R1 million for SAWS in the framework which was never granted by National Treasury.

After concluding remarks, appreciating the presence of the Board, the Chairperson adjourned the meeting.     

The meeting was adjourned.