They were supposed to ensure that our private information is safe and not violated, but almost 18 months since former president Jacob Zuma appointed the Information Regulator, the office is struggling to take off.
Appearing before Parliament to table its annual performance plan and budget last week, the Information Regulator pleaded with the National Assembly’s justice and correctional services portfolio committee to assist break an administrative deadlock which has barred it from appointing staff.
Chairperson of the Information Regulator Pansy Tlakula told MPs how they have been sent from pillar to post by government departments as they seek to establish their organisation structure and appoint staff for the new organisation.
The problem seems to be a contradiction between at least two laws – the Protection of Personal Information Act (Popia), which establishes the Information Regulator, and the Public Finance Management Act (PFMA).
In terms of the Popia, the regulator must consult the minister of finance in exercising its powers, including appointing staff.
“As soon as we were established, we wrote to the then minister … to say we are here and this is the structure. We are asking you to please authorise the appointment of the chief executive officer at a particular salary, because we thought once we get a CEO, the CEO will assist us in trying to establish the office,” said Tlakula.
But Treasury officials responded by referring the regulator to the department of public service and administration (DPSA) because the office’s staff benefits would have to be compatible with the public sector.
After some delays from the public service department, the regulator involved the Public Service Commission, which, among “a long list” of documents to be compiled, also recommended that the regulator undertakes a benchmarking exercise to prove that the organisational structure it puts in place complies with similar structures nationally and internationally. It did take off to Canada, UK and Germany on a benchmarking trip in January this year.
But the DPSA still would not approve the structure, saying the body has to be listed in the PFMA and be classified as a national public entity.
This was problematic, said Tlakula, because a national public entity has a controlling board or a board as an accounting authority, contradicting Popia, which provides for a CEO as an accounting officer and the PFMA that says the accounting authority is the controlling body.
“So, we are stuck,” she told MPs.
The matter has been referred back to Treasury to resolve as the establishing law states that the regulator has to consult the minister of finance in exercising its powers.
In the meantime an acting CEO and acting head of legal and compliance were seconded from the department of justice and assumed duty on November 1 2017.
Tlakula was at pains to emphasise that there was some work being done by the regulator, including material data breaches by Master Deeds, Facebook and the MiWay incident involving Zulu King Goodwill Zwelithini. It is also looking at whether unsolicited direct marketing by political parties is acceptable.
“We do handle complaints but we do not have the power to enforce and settle those complaints because [some sections] of the act are not yet operative. So far the office has received “in excess of 180 complaints and some of them have been resolved”, she said.
The Information Regulator is created by Popia and has extensive powers in terms of that law to regulate both the protection of personal information and the promotion of access to information.
The office, has been allocated a budget – which still lies in the constitutional development branch of the department of justice – of R27.3 million for 2018/19, with R18.5 million of that allocation set aside for employee salaries.
“The Information Regulator is going to be a critical institution in advancing transparency and information rights in the country,” said ANC MP Mathole Motshekga when the National Assembly approved the appointment of the regulator’s members in September 2016.
Following last week’s meeting with the body, he told City Press that they were “gravely concerned” about the office not getting off the ground because of the contradictions between legislations. This, he said, means those who drafted the bill did not do a good job.
“Also it means, as Parliament, we just passed the bill for the sake of passing it and that’s why we are saying as this Parliament we are not here to rubberstamp bills brought before us by the executive. We have a responsibility to make sure that we pass quality legislation and that the executive also must not bring to us half-baked bills and then expect us to pass them overnight.”
Motshekga and some MPs in the committee have suggested that a committee bill would be necessary to amend the defects in the law. He and some MPs were seeking legal advice to this effect.