Search results for: reliance

by Jason van der Poel, Alexandra Felekis, Mzukisi Kota & Mongezi Dladla at Webber Wentzel

​On Tuesday 29 October 2019, the South African Minister of Public Enterprises, Pravin Gordhan, released, and held a media briefing on, a special paper entitled "Roadmap for Eskom in a Reformed Electricity Supply Industry, 2019" (the Roadmap). The Roadmap highlights the issues that Eskom is currently facing and then sets out the government's plan to address them.  Eskom is currently vertically integrated.  The aim is for Eskom's transmission business to be fully functionally separated into a newly formed subsidiary of Eskom Holdings SOC Limited by 31 December 2021 and for the legal separation of the utility into three companies - generation, transmission and distribution - by 30 December 2022. Webber Wentzel set out below a summary of the Roadmap and their thoughts on some key takeaways flowing therefrom for independent power producers (IPPs), lenders and other stakeholders.

Background

Eskom is facing financial, governance and leadership, operational, structural and climate change challenges. The Roadmap makes it clear that Eskom, in its current form, has failed. The Roadmap, in a high-level manner, outlines the process that will be followed in the restructuring of Eskom as well as the actionable steps to mitigate the electricity supply risks, and to put Eskom and the electricity supply industry on a new path of sustainability.  Among other things, the Roadmap seeks to:

• address steps to restore Eskom's finances, including government support;
• identify measures to reduce Eskom's cost structure; and
• commit to a just transition, safeguarding the livelihood of workers and communities in observing South Africa's climate change commitments.

The New Business Model

Eskom Holdings will hold three subsidiaries, namely, Eskom Generation (Generation Entity), Eskom Transmission (Transmission Entity) and Eskom Distribution (Distribution Entity). The aim is to improve the power utility through greater transparency and accountability and to allow government more effectively to address generation, transmission and distribution challenges separately. Webber Wentzel note that the Generation Entity, the Transmission Entity and the Distribution Entity will not become separate state-owned enterprises and will not have any strategic equity partners from the private sector as had been mooted by some stakeholders.

In the immediate future, the creation of the Transmission Entity is a priority as it is the keystone in Eskom's reform. This entity will be wholly owned by Eskom Holdings and "its core functions will be to act as an unbiased electricity market broker, to promote capital investment within the industry and to catalyse energy efficiency and cost sustainability".

In order for it to achieve its objectives, this separate Transmission Entity will need to meet certain conditions that are set out in the Roadmap, including to:

• provide access to the grid on a non‐discriminatory basis to the Generation Entity and IPPs;
• dispatch electricity from the existing asset base of generators and following clear least‐cost principles and penalise generators that do not perform as contractually agreed; and
• provide full transparency about the performance of the power system to all market participants and the general public.

Governance and Leadership

One of the main drivers for the restructuring of Eskom is the necessity to improve the governance of Eskom. The restructuring of Eskom therefore aims to introduce a robust and transparent corporate governance at Eskom. Each of the subsidiaries having their own boards with separate mandates is intended to increase leadership's accountability for each of the functions. It will also be simpler for the boards to identify and address governance and operational issues within their functions.

The Roadmap provides that the board of Eskom Holdings will be reinforced with individuals with the appropriate skills set and that a new CEO for Eskom Holdings will be appointed "soon".

Thoughts on the Impact of the restructuring of Eskom on the IPP industry

Is a change in law required and how long will this all take?

The aim is for Eskom's transmission business to be fully functionally separated into a newly formed subsidiary of Eskom Holdings by 31 December 2021 and for the legal separation of the utility into three companies - generation, transmission and distribution - by 30 December 2022. We note that this restructuring of Eskom as is currently envisaged in the Roadmap does not in and of itself necessitate a change in legislation. Currently, Eskom is regulated by, among other things, the Eskom Conversion Act (ECA) and its Memorandum of Incorporation. Under these instruments, Eskom has the power, among other things, to incorporate subsidiaries, subject to other relevant regulatory statutes such as the Public Finance Management Act and the Labour Relations Act. Accordingly, the mere formation of the operational divisions into subsidiaries would not, in the ordinary course, require legislative changes. Setting up new corporate entities with independent boards will, however, be a time-consuming task.

From a legislative perspective, what is of greater concern is how Eskom's debt will be allocated as a result of the restructuring. Neither the Roadmap nor the Minister of Finance's Medium Term Budget Speech 2019 provides any detailed guidance on how Eskom's existing debt will be managed or restructured. The ECA provides that Eskom's debt and interest, unless otherwise agreed between Eskom and the lender, must be a first charge against all revenues and assets of Eskom. The successful implementation of the Roadmap will thus require substantial buy-in from Eskom's lenders. The Roadmap recognises this and specifically acknowledges that engagement with Eskom's lenders is required.

In future however, and if the plan is to separate these subsidiaries from the Eskom group and establish them as independent state owned entities, then there will likely be a need for the appropriate legislation to be enacted.

The Transmission Entity will be the Buyer

According to the Roadmap, the last phase of the restructuring will be completed by the end of 2022 with the three functions of generation, transmission and distribution housed in the three different Eskom subsidiaries. During the transitional separation period, the function of procuring new energy will remain with the Department of Mineral Resources and Energy (Department) and the buyer function will reside in the Transmission Entity. The Transmission Entity will buy energy from the generators under power purchase agreements (PPAs) procured by the Department and sell the energy under electricity supply agreements (ESAs) entered into with the Distribution Entity, municipalities or large power users. When the restructuring has been completed, the buyer for purposes of the PPAs entered into with generators (including the IPPs) will be the Transmission Entity and therefore the existing PPAs between Eskom and various IPPs will have to be transferred to the Transmission Entity. This however, should not be of great concern to IPPs and lenders, provided that the sovereign guarantees provided by the Government of South Africa under the implementation agreements are not adversely affected.

Distribution is only discussed briefly in the Roadmap. The Distribution Entity will be authorised to buy from the Transmission Entity, licenced municipal generators and embedded generation. The Roadmap states that further consideration will be given to the structure of the distribution sector as a whole and that the appropriate policy parameters will be formulated in due course. This is a fundamental shift towards an open and competitive market and should be welcomed by the private sector. However, the credit worthiness of the Distribution Entity will be a key challenge that will have to be addressed.

What does the Roadmap mean for the heavily anticipated Renewable Energy IPP Procurement Programme Bid Window 5 expected to commence next year?

Probably not much as the timing for establishment of the three entities is estimated only to be achieved by 30 December 2022. If the next bid window goes ahead next year, Eskom in its current form will still be the buyer. So what is relevant to Bid Window 5? The plan states that 2000MW that will stabilise the system in response to the load-shedding must be procured on an urgent basis. The Department intends to issue a request for information (RFI) that seeks information regarding supply and demand side options available that can be brought online in the shortest possible time at reasonable cost. Arguably the RFI responses will inform which technologies are procured or developed first and in what period of time. It is clear from the recently published 2019 Integrated Resource Plan (IRP 2019), that new solar PV and wind could be feeding electricity into the grid by 2022. At this stage the exact number of MW available to IPPs is an open question as all existing Ministerial Determinations will be revised to give effect to the IRP 2019 and some of these MW may be allocated exclusively to Eskom.

What will Eskom's new Generation Entity mean for IPPs?

Regarding the generation of electricity, the restructured Eskom as envisaged by the Roadmap will have a Generation Entity that is responsible solely for generation. The Roadmap proposes that the current power plant base will be separated into a number of feasible smaller generation units, including renewables, with the intention that over time, the generation market will become more competitive and decentralised.

All Eskom-owned power plants will be housed in this entity and the entity will contract with the Transmission Entity for the right to sell electricity and use the grid in the same way as IPPs would need to. A key concern for IPPs is whether in fact all parties will be treated equally - will the agreements to be entered into between these affiliated entities be on a true arm's length basis or will priority be given on the basis that the majority of the required generation capacity is generated by the Generation Entity’s assets.

As indicated above, the idea of a more open and competitive generation market is reiterated in the Roadmap and therefore a level of competition could exist between the Generation Entity and the IPPs. Eskom will likely seek to broaden its business by diversifying into various sectors of energy production including renewable energy. Should this be the case, the allocations for renewable energy technologies in the IRP 2019 may not be sourced from IPPs exclusively, as may have been assumed by stakeholders. Another key question is whether or not the Generation Entity will be permitted to participate in REIPPPP and compete directly with IPPs. The industry will however have to wait for the Ministerial Determinations in respect of this new generation capacity in order to ascertain whether the renewable energy MW allocations under the IRP 2019 will be sourced from the Generation Entity, IPPs or both.

What does the Eskom split mean for captive power IPPs wanting to wheel electricity?

Currently, the Electricity Regulation Act (ERA) governs the generation and sale of electricity in South Africa. The ERA contemplates access to the system by third parties and expressly obliges a distributor or transmission licensee to grant non-discriminatory access to the system to an IPP provided that: (i) the IPP has obtained the necessary license for the generation and sale of electricity to a third party; and (ii) the conditions of the distributor or transmitter's license are met. In addition to meeting the requirements in the ERA, an IPP will need to meet Eskom's wheeling requirements. To date, rights to wheel electricity on Eskom's transmission or distribution system have been granted sparingly by Eskom.

The Roadmap echoes the ERA and includes non-discriminatory access to the grid as one of the objectives of the split. IPPs would be required to agree on wheeling arrangements with the Transmission Entity. On the premise that the grid will be available for all generators of electricity, rules and procedures for wheeling will have to be put in place to ensure equality amongst all users. A key question will be whether it will be easy to put wheeling arrangements in place for captive power projects looking to sell to private third party off takers or whether priority will be given to power plants supplying the transmission and distribution entities.

Conclusion

Webber Wentzel sees the release of the Roadmap as a positive step in the commencement of a restructuring of South Africa's electricity supply industry to minimise Eskom's reliance on fiscal allocations and to stabilise electricity supply. Although the Roadmap provides some clarity on the way forward for the struggling utility, the process poses many questions that need to be answered to restore investor confidence and drive further private investment in the energy sector. To this end, the market is patiently awaiting greater clarity from the Government of South Africa on the management of Eskom's debt in light of the Roadmap, the appointment of a permanent Eskom CEO and how national stakeholders who oppose Eskom's restructuring will be managed. The questions to be answered in order to restore investor confidence in the South African electricity market will require a high degree of alignment between the Minister of Public Enterprises, the Minster of Mineral Resources and Energy and the Minister of Finance.

Today, the technology exists to build sewage treatment plants that are 100% water and energy autonomous. This is demonstrated at the Veolia-built and operated T PARK sludge treatment facility in Hong Kong.

The plant processes 1 200 tonnes of sludge per day from 11 sewage treatment works in a region of over 7 million inhabitants, with a total design capacity of 2 000 t/day – making it the world’s largest sludge treatment plant.

Yet even more technologically impressive is that the plant is completely self-sufficient in terms of water and energy

At the heart of the plant, Veolia-supplied fluidised bed incineration technology incinerates the sludge at 850° C for two seconds, reducing the volume of waste to be landfilled by 90%, and the emission of greenhouse gases by up to 237 000 t/year. The heat generated during this process is recovered and transformed into electricity. 

The 14 MW that is produced is able to supply the entire site, including a 600 m3/day desalination plant that meets the plant’s process water requirements, with the remainder fed into the public power grid. At full capacity, the plant can produce up to 2 MW of surplus electricity, which is enough to light up 4 000 homes.

In addition, the facility achieves zero effluent discharge via a Veolia-supplied wastewater treatment plant that collects, treats and reuses the wastewater produced on site for various uses such as irrigation and cleaning.

It’s not just under the hood where T PARK impresses, either. The low footprint and efficient design of the plant equipment is integrated within a remarkable architectural feat that is environmentally harmonious with its surrounding landscape between sea and mountains, with approximately 70% of the 7-hectare site greenspace and water. In addition, the facility has a 2 800 m² interactive exhibition centre focusing on sludge treatment, which plays an invaluable educational role in creating greater knowledge and support for the circular economy transition.

On completion of the plant, Veolia assumed a 15-year operations and maintenance contract. In addition to ensuring the plant meets the most stringent ecological performance standards, Veolia will also ensure continual technology-driven optimisation to ensure the plant remains a landmark of sustainable waste management strategy long into the future.

 Turning waste into a source of renewable energy, T PARK is a prime example of the circular economy that gives value to materials previously considered worthless.

Circular approaches to wastewater and sludge in South Africa

Veolia Water Technologies South Africa brings these technologies and expertise to sub-Saharan Africa’s municipalities and industries. Since opening its doors in 1999, it has been involved in some of the region’s most progressive resource recovery applications.

At the Durban Water Recycling Plant, Veolia has taken care of the daily operations and maintenance requirements of the plant works since 2001. This facility treats up to 47 ML of municipal and industrial effluent each day to a specification that is required for reuse by pulp and paper and petrochemical companies in the city. Not only are these customers able to lower their water costs by reducing their reliance on the bulk municipal water supply, the city reduces its load on the marine environment and frees up potable water that allows the city to extend its bulk water services to support more communities within the region.

 At Distell’s distillation facilities in Stellenbosch, Veolia installed South Africa’s first Biobulk® wastewater treatment facility to lower the chemical oxygen demand load in the outfall to the municipality and harvest the energy in the wastewater. This highly efficient treatment plant treats 1 000 m3 of effluent per day containing a daily COD load of 8.6 tons, which it reduced by approximately 94%, while harvesting the biogas generated during anaerobic digestion that is used as a fuel for the plant’s boilers.

In one of the largest evaporation and crystallisation plants in the world, the Veolia-designed and built Ambatovy Mine treatment plant treats mine water while recovering up to 210 000 tons of ammonium sulphate per annum, which makes an ideal fertiliser. What was once a hazardous waste product has been transformed into a useful agricultural product that is sold as a secondary revenue stream by the mine. 

 In addition to these large-scale works, Veolia Water Technologies South Africa supplies fully containerised water reuse and recycling solutions as part of its Water Techno Packages range, such as Evaled™ evaporation technologies, Biostyr™ biological aerated filters, and Opus® reverse osmosis membrane plants for high water recovery.

By extracting and recycling useful resources contained in our waste, Veolia is helping bring the circular economy to life as we ramp up our fight against the challenges of climate change.

No longer an if, but when a business will experience a cyber attack

Participants in Aon's 2019 Global Risk Management Survey ranked cyberattacks and data breaches as #6 in the top 10 risks facing organisations today. The risk entered the Top 10 list for the first time (at #9) in 2015 and is projected to go from #6 to #3 in the next three years. Startling figures have changed the public perception of cyberattacks:

• Malware attacks in SA increased by 22% in the first quarter of 2019 compared to the first quarter of 2018, translating to around 13 842 attempted cyberattacks per day - Kaspersky Lab. 
• A data breach in South Africa costs an average of R36.5 million - IBM security study conducted by the Ponemon Institute.

“When we break it down by industry; banks, retail, healthcare, insurance and technology companies consider cyberattacks or data breaches the top risk. These sectors rely heavily on digital advances to improve operational efficiency and increase their competitiveness. They were also the targets for the majority of mega cyberattacks in 2018,” says Zamani Ngidi, Principal Cyber Risk Consultant at Aon South Africa. 

Why have cyberattacks and data breaches become so rampant?

Aon's 2019 Cyber Security Risk Report highlights some of the vulnerabilities:

1. The rapid expansion of operational data from mobile and edge devices, along with growing reliance on third-party—and sometimes even fourth-party—vendors and service providers, are heightening cyber risks. 
2. The combination of faster networks and vulnerable devices - Internet of Things (IoT) and the forthcoming transition to 5G - opens more doors to destructive threats.
3. Employees remain one of the most common causes of breaches. In a 2018 Aon survey, 53% of respondents said their companies experienced an insider-related attack within the previous year. When an employee of a large healthcare company inadvertently opened a phishing email, nearly 80 million patient records on his system ended up in the hands of a foreign government.
4. As the number of merger and acquisition deals rises (M&A deal value topped US$4 trillion in 2018), companies with a flawless approach to cyber security might have acquired a target that lacks cyber protection measures.
5. Organised crime is now using former intelligence members for more sophisticated attacks, while state actors are both broadening the nature of their attacks and increasing their frequency.
6. Lastly, an ever-changing set of regulations from governments around the world compounds the difficulties of managing cyber risks.

“Despite the fact that the breadth and scope of cyber coverage has increased substantially since 2017, only 27% of participants in Aon's 2019 Global Risk Management Survey from the Middle East and Africa region purchased cyber insurance,” says Zamani.

Top industries purchasing cyber insurance are as follows:

• Investment and Finance – 83%
• Healthcare – 81%
• Retail Trade – 78%
• Banking – 75%
• Insurance – 73%

Given that technology continues to impact every job function, from the CEO to the entry-level intern, Zamani believes that it is imperative for organisations to establish a comprehensive approach to cyber risk. “Businesses must continually assess their overall cyber risk profile, remediate where recommended and proactively manage their defences.”

Cyber risk assessment

The use of cyber risk assessments has risen 16% since 2015. However, only 59% apply any formal process to identify and evaluate cyber risks. “This means that a significant number of boards and executives are making strategic risk management decisions with little to no data-driven insights when they tackle one of the most rapidly evolving risks,” explains Zamani.

Of those risk management teams that are involved in cyber risk assessment activities, there has been a positive increase in the application of quantification techniques to 40%, up from 23% in 2017, to evaluate the financial exposures from cyber risks.

Despite the increase, the majority of risk assessments are still not using any financial metrics to communicate the materiality of cyber exposure. The outputs from these assessments are not presented in a way that senior executives can understand their financial risk appetite, nor does it support data-informed capital allocation decision-making.

“Although there appears to be a positive correlation between the upward trending of risk assessments and quantitative techniques and the increase in captive utilisation (from 8% in 2015 to 16% in 2019) and insurance procurement (21% in 2017 to 54% in 2019), risk management teams need to be more actively involved in bridging the gap between technical cyber risk assessment activity and the enterprise risk management framework,” says Zamani.

It is important for risk managers to gain a better understanding of the impact of cyber risk.  “The risk that cyber-crime poses affect all companies, big and small.  This is where the insights and guidance from an expert broker that provides a holistic offering of advisory and security services is invaluable to enable organisations to anticipate and effectively manage their exposures,” Zamani concludes. 

Businesses operate in a time of unprecedented volatility across economics, demographics, and geopolitics.  More than ever you need to explore new ways to cope with evolving and inter-related complexities in a challenging business environment.

Aon South Africa, a leading insurance brokerage and risk advisor, has surveyed the risk and insurance landscape and reveal their take on the key risks that businesses need to focus on to ensure growth and stability:

• ·Risk readiness is falling, but volatility is growing - Businesses are slow to implement new risk and insurance programs for evolving risks such as cyber and political risk. Yesterday’s solutions no longer address the risks posed by a technologically, economically and politically fraught environment, so a new lens is needed to mitigate these evolving and serious risks.

• ·A widening skills gap and growing social discontent: Political and economic uncertainty are widening SA’s growing skills gap as highly skilled people emigrate.  Furthermore, alarming unemployment rates are fueling growing social dissatisfaction, manifesting in violent service delivery protests which have caused significant losses to private and public property.

• ·Political Risks are a Global Challenge: Despite the availability of more data, analytics and mitigation solutions, companies are less prepared for political risk than ever before. Concerns over South Africa’s economy and indeed the world are not going away soon, so organizations should learn from the past as political uncertainty is one of the biggest enemies of business.

• ·Cyber risk: With the heavy reliance on technology, businesses are more vulnerable to system failures and data breaches causing business interruption, loss of customers and reputational damage. Any entity – regardless of the size or nature of business - that conducts any aspect of its business online and holds sensitive data is a potential target for a cyber breach or hack.

• ·Weather catastrophes to intensify with climate change: Property-related and business interruption losses as a result of fire and weather catastrophes have increased dramatically, with 2017 having the highest underwriting losses on record. While weather catastrophes increasingly account for the lion’s share of property and business interruption insurance claims, individuals and businesses remain under-insured for the impact of these uncontrollable risks.

• ·Business Interruption (BI): BI has been a Top 10 business risk since Aon’s Global Risk Management survey launched in 2007. As supply chains become globally integrated there is increasing interdependency, while inventory reduction and lean supply chains have amplified the risks of unexpected disruptions to business continuity. Cyberattacks have also added new urgency and dimension to BI. Lloyd’s estimate that cyber-related business interruption could cost businesses around US$400 billion a year.

• ·Market volatility drives demand for payment protection: Defaulting debtors are likely to continue in response to weak trading conditions. SMEs are certainly at greater risk as their balance sheets are unlikely to carry them through a major default, while it’s foolhardy to think that big corporates don’t falter as recent business rescues have shown. Accounts receivable is one of the largest uninsured assets on a balance sheet, despite accounting for 40% and more of total company assets. Trade credit insurance is essential to mitigate these credit risks.

• ·Get serious about Directors and Officers Liability: Companies of all sizes, even non-profit organizations, and membership associations need comprehensive cover for liabilities that could arise from wrongdoings by directors and officers in conducting their managerial responsibilities. Statistics over the last decade show that D&O claims against privately-owned SME businesses and non-profits are as prevalent as they are in large listed entities, yet research by Datamonitor suggests that 70% of SMEs do not have any D&O cover despite the increased regulatory scrutiny and litigious nature of society.

According to Aon, the role of professional and qualified advice linked to deep market insights becomes crucial in securing financial security in these challenging economic and socio-political environments.  Managing risk and costs is imminently more crucial as the interconnectivity of traditional and emerging risks means organizations can no longer evaluate individual risks in isolation but must look at all the top risks and people in a more holistic way.  Regardless of size or status, there is no one size fits all approach to business risk insurance.  It all depends on the size of the company, the nature of its business and its unique levels of exposure. Consulting with a professional Aon risk advisor is an invaluable exercise in protecting your business, reputation, clients, colleagues and bottom line.

For more information go to www.aon.co.za

South Africa had enacted the Prevention and Combatting of Torture of Person Act in 2013

GENEVA, Switzerland, May 1, 2019/ -- The Committee against Torture this afternoon concluded its consideration of the second periodic report of South Africa on measures taken to implement the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, John Jeffery, Deputy Minister at the Department of Justice and Constitutional Development of South Africa, recalled that the horror of torture was embedded in South Africa’s history and that its past bore memories of widespread and institutionalized torture, which for the apartheid security forces had been a matter of routine.  South Africa had enacted the Prevention and Combatting of Torture of Person Act in 2013, while the amendment to the Criminal Procedure Act had removed the previous 20-year statute of limitation in respect of torture.  The principle of non-refoulement had been firmly codified in the Anti-Torture Act and the Refugees Act.  The Independent Police Investigative Directorate had become operational in 2012, and worked to ensure accountability and transparency of the police, including through investigating cases of death in police custody as a result of police actions and complaints of torture or assault filed against a police officer.  In March 2019, Parliament had approved the ratification of the Optional Protocol to the Convention.  A number of bodies with an oversight mandate over places of detention - the Judicial Inspectorate for Correctional Service, the Independent Police Investigative Directorate, the Military Ombud, the Health Ombud - would play an important role in the national prevention mechanism under the auspices of the South African Human Rights Commission.  Various initiatives had been implemented to reduce pre-trial detention, Mr. Jeffery said, and the Judicial Case Flow Management Committees had been set up at national, regional and local levels to ensure speedier investigation and finalization of cases, address blockages, and improve overcrowding in prisons in relation to un-sentenced and pre-trial detainees.

Committee Experts remarked that the anti-torture law failed to stipulate minimum sentence for acts of torture, thus opening up the space for a suspended sentence to be given to perpetrators of this most serious crime, and its implementation was a problem too as to date no public official had been prosecuted under this law.  The Experts raised concern about the announced withdrawal of South Africa from the Rome Statute of the International Criminal Court and in particular about the International Crimes Bill, which would effectively provide for immunity of certain persons for international crimes, thus making the prohibition of the crime of torture not absolute.  The Committee stressed the critical importance of ensuring adequate funding, transparent selection of members, and the full independence and impartiality of the South African Human Rights Commission, particularly in its upcoming role as coordinator of the national prevention mechanism.  There was an increase in arbitrary detention for minor offences such as common assault, failure to provide proof of identity, or petty theft, as well as an increasing reliance on life imprisonment, which had recorded an 818 per cent growth since the turn of the millennium.  In addition, most persons deprived of their liberty seemed to be young, marginalized, and vulnerable persons, usually under the age of 25, and 80 per cent were non-whites; almost half were held in pre-trial detention, with male non-whites more likely to be detained prior to trial.

In his concluding remarks, Mr. Jeffery said that over the past 25 years, the new democratic government had removed old apartheid laws and institutions, built new democratic institutions and initiated laws based on constitutional rights and freedoms.  It had taken a collective responsibility to eradicate torture, including through the ratification of the Optional Protocol under which the national prevention mechanism would be created.

Jens Modvig, Committee Chairperson, in his concluding remarks, said that the question of intersectionality was being heavily debated during the treaty bodies review process.  All treaty bodies aimed to avoid unnecessary duplication but the question was what was unnecessary duplication and what were the intersecting areas.  He underlined that torture could be committed against women, children, or persons with disabilities, and it must be acceptable for the Committee against Torture to address those issues in the dialogue.

The delegation of South Africa consisted of representatives of the Department of Justice and Constitutional Development, Department of Home Affairs, Independent Police Investigative Directorate, Department of Correctional Services, Department of Women, Department of International Relations and Cooperation, Department of Social Development, Office of the Chief State Law Adviser, South African Police Service, as well as the representatives of the Permanent Mission of South Africa to the United Nations Office at Geneva.

The Committee will issue its concluding observations on the report of South Africa at the end of its sixty-sixth session on 17 May.  Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage.  The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/.

The Committee will next meet in public at 10 a.m. on Thursday, 2 May, to review the third periodic report of Benin (CAT/C/BEN/3).

Report

The Committee has before it the second periodic report of South Africa (CAT/C/ZAF/2) and its reply to the list of issues (CAT/C/ZAF/Q/2/Add.2).

Presentation of the Report

JOHN JEFFERY, Deputy Minister at the Department of Justice and Constitutional Development of South Africa, recalled that the horror of torture was embedded in his country’s history, as its past bore memories of widespread and institutionalized torture, which for the apartheid security forces had been a matter of routine.  Mindful of its tragic past, South Africa had ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1998.  In July 2013, acting on the Committee’s concluding observations following the review of the initial report in 2006, South Africa had incorporated the Convention into its domestic law by enacting the Prevention and Combatting of Torture of Person Act.  The Act provided for the offence of torture of persons and for the prevention and combatting of torture of persons within or across the national borders, and imposed a maximum penalty of R100 million or life imprisonment, or both, in the case of a conviction.  By prescribing a penalty of up to life imprisonment, the Act reflected the gravity of the crime, and upheld the absolute, non-derogable character of the prohibition of torture, the Deputy Minister stressed.

The amendment to the Criminal Procedure Act had removed the previous 20-year statute of limitation in respect of torture, and the principle of non-refoulement had been firmly codified in the Anti-Torture Act and the Refugees Act 1998.  Furthermore, the Independent Police Investigative Directorate had become operational in 2012, and worked to ensure accountability and transparency of the police, including through investigating cases of death in police custody as a result of police actions and complaints of torture or assault filed against a police officer.  In March 2019, both Houses of Parliament – the National Assembly and the National Council of Provinces – had approved the ratification of the Optional Protocol to the Convention against Torture, the Deputy Minister said, and added that a significant amount of work had already gone into the establishment of the national prevention mechanism.  South Africa already had a number of institutions which had an oversight mandate over places of detention and carried out many of the functions required by the national prevention mechanism in terms of their respective mandates.  The funding of the national prevention mechanism had commenced on 1 April 2019; the Department of Justice and Constitutional Development had allocated the funding, ring-fenced for the next three years, amounting to 1.6 million rand for 2019/20, 2.3 million rand for 2020/21, and 2.4 million rand for 2021/22.

Corporal punishment had been prohibited in detention settings in 1995 and banned in schools in 2000.  The common law defence of ‘reasonable chastisement’ allowed parents to use corporal punishment in the home as a form of discipline; it had been prohibited and declared unconstitutional by the South Gauteng High Court in October 2017, and the matter was now before the Constitutional Court.  Various initiatives had been implemented to reduce pre-trial detention, Mr. Jeffery said, including the comprehensive national human rights framework aligned to the Luanda Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa and the Mandela Rules.  Judicial Case Flow Management Committees had been set up at national, regional and local levels to ensure speedier investigation and finalization of cases, address blockages, and improve overcrowding in prisons in relation to un-sentenced and pre-trial detainees.  A number of bodies had an oversight mandate over places of detention, such as the Judicial Inspectorate for Correctional Service, the Independent Police Investigative Directorate, the Military Ombud, the Health Ombud, and others, who would place an important role in the national prevention mechanism under the auspices of the South African Human Rights Commission.

Questions by the Committee Experts

ANA RACU, Committee Co-Rapporteur for South Africa, welcomed the adoption of a number of laws in South Africa, in particular on the prevention of torture, on combatting trafficking in persons, on sexual offences, and on the enactment of the Independent Police Investigative Directorate Act.

Turning to the definition of torture and its criminalization, the Co-Rapporteur noted that the Prevention and Combatting of Torture of Person Act highlighted the seriousness of the crime of torture through its harsh punishment and represented a significant framework contributing to the prevention and investigation of acts of torture and punishment of its perpetrators.  Still, significant gaps remained both in the legal protection and the implementation of the laws.  The Act did not categorize torture as one of the serious crimes and consequently did not stipulate a minimum sentence, thus creating a possibility for perpetrators to be given a suspended sentence, which was not commensurate with the gravity of the crime.  Furthermore, it did not adequately address the responsibility of the State to provide redress to victims of torture, and to date, no public official had been prosecuted under this Act.  Which specific norms and legislation had been used to prosecute State officials for isolated incidents of assault, murder or torture?  What was the status of the ongoing revision of the enabling legislation for the Independent Police Investigative Directorate, mandated to investigate cases of assault and torture by the members of the police?

The Committee was concerned about the announcement in 2016 that South Africa would withdraw from the Rome Statute of the International Criminal Court and its subsequent repeal of the domestic enacting legislation.  This decision had been challenged by civil society organizations and political parties before the North Gauteng High Court, which in February 2017 had declared that the decision by the National Executive to deliver the notice of withdrawal from the Rome Statute without prior parliamentary approval was unconstitutional.  In this context, what was the status of the international criminal jurisdiction in the country?

The South African Human Rights Commission had a broad mandate and had received A status under the Paris Principles.  However, there were concerns about the lack of financial resources to enable it to fulfil its mandate, lack of clarity concerning the selection of personnel, and the lack of a specific mandate to monitor places of detention.  These questions were increasingly important in the light of the recent developments related to the establishment of a national prevention mechanism under the Optional Protocol to the Convention, said Ms. Racu.  The preferred model proposed for South Africa was a multiple-body national prevention mechanism with the South African Human Rights Commission playing a lead functional and coordinating role.  In this context, ensuring adequate funding, transparent selection of members, and the full independence and impartiality of the mechanism was essential.

As for the monitoring of places of detention, the Judicial Inspectorate for Correctional Services had appointed an Independent Correctional Centre Visitor for each correctional centre to monitor prison conditions.  However, non-governmental organizations claimed that many lacked independence in their oversight and raised concerns about the lack of regular and independent monitoring of police cells.

The Co-Rapporteur commended South Africa for the legal provisions adopted in order to ensure the implementation of the fundamental legal safeguards, noting in particular that the country was among the few in the region which had a functional and successful system of legal aid, including a system of free legal aid for vulnerable groups.  A custody register was kept in all police stations, and every action taken by the police officers regarding persons in custody, from their arrest to their release from police custody, must be recorded in the occurrence book.  Were those accessible to lawyers, Human Rights Commissioners, monitoring entities and family members?  Were police officers who failed to make an entry into the book held accountable?  Had the law been amended to provide for the mandatory audio and video recording of interrogation rooms?

Access to a doctor was another vital safeguard – could the delegation explain how all detainees in police custody could access a doctor and medical examination?  The Committee was concerned that since the entry into force of the Anti-Torture Act in 2013, the number of deaths in custody had increased but no torture cases had been brought before the courts under this Act.

Another issue of concern was the increase in arbitrary detention for minor offences such as common assault, failure to provide proof of identity, or petty theft.  There were reports of security forces arbitrarily arresting migrants and refugees, even those with documentation.  From the legal point, all relevant procedures for the protection of refugees and asylum-seekers were in place, including the appeal procedure, the principle of non-refoulement, and access to legal aid.  However, concerns had been noted about the treatment by the police in prisons and the Lindela Repatriation Centre, as well as detention of asylum-seekers for deportation purposes.  What steps were in place to ensure that migrants and refugees were not returned to a country where they ran a risk of being tortured?

Xenophobic violence was on the rise throughout the country, often targeted at foreign nationals running small shops and migrant workers who were accused of “stealing jobs” from the nationals.  The Co-Rapporteur requested information on xenophobic incidents and steps taken to investigate them, and measures put in place to protect the most affected ethnic and religious groups.

South Africa had made significant institutional and legislative advances to address gender-based violence, the Co-Rapporteur said, noting in particular the establishment of specialized courts dealing with sexual offences, the setting up of the community-based Thutuzela centres for the care for victims of gender-based violence, and the adoption of the National Instructions on Domestic Violence.  Still, domestic violence remained pervasive and included physical, sexual, emotional and verbal abuse, and the rate of reporting and prosecution of violence against women remained very low.  How many cases of gender-based violence had been investigated and prosecuted over the past five years and what were the sentences handed down?

The Committee noted with concern the increasing reliance on life imprisonment in South Africa, which had recorded an 818 per cent growth in such sentences since the turn of the millennium.  Legal provisions for parole were very complicated, and it seemed that minors could be sentenced to life imprisonment without parole.  How many persons had been sentenced to life imprisonment so far, and what was being done to reduce the number of life prisoners and to amend the relative legislation?

The Committee was alarmed by the number of deaths in custody: 216 deaths in police custody and 366 deaths as a result of police action during the 2015-2016 period.  The investigations into those deaths conducted by the Judicial Inspectorate of Correctional Service did not seem to be efficient, especially when deaths occurred at the hand of police officers.

ESSADIA BELMIR, Committee Vice-Chairperson and Co-Rapporteur for South Africa, raised the question of training for public officials and law enforcement officers in preventing and combatting torture, particularly in detention facilities, and asked whether it included the provisions of the Istanbul Protocol and how the impact of the training activities was measured.  Was such training incorporated in the basic instruction of law enforcement officers, the so-called national instruction?  What initiatives were in place to disseminate the Convention, including in collaboration with civil society organizations?  Ms. Belmir raised concern about the frequency of torture and ill treatment at the hand of public officials, as well as the pattern and acceptance of violence in the society.

Most persons deprived of their liberty seemed to be young, marginalized and vulnerable persons, usually under the age of 25, and 80 per cent were non-whites; almost half were held in pre-trial detention, with male non-whites more likely to be detained prior to trial. The 2008 legal amendment had replaced the use of solitary confinement with the practice of “segregation”, under judicial orders.  What complaint mechanism was available to detainees?  The rampant prison overcrowdingwas often at the root of multiple forms of violence that occurred in prisons, including torture, sexual violence, and excessive use of force, and which sometimes resulted in deaths.  A contributing factor to overcrowding was the high rate of pre-trial detention, which could last up to two years.  The data on the number of complaints of acts of torture and the number of convictions seemed to indicate that police officers were charged with and prosecuted for acts of torture only exceptionally.

South Africa had made substantial progress concerning reparations, including the provisions contained in the Anti-Torture and the Anti-Trafficking Acts.  What was the status of the victim in the law?  The Co-Rapporteur urged the State party to adopt a clear legal definition which would then facilitate access to reparation and rehabilitation.  What forms of reparations and redress were available and provided to victims?

The Truth and Reconciliation Commission had done excellent work, but some of its recommendations, especially those related to the accountability of perpetrators, investigation of enforced disappearance, and restitution for victims, had not been implemented as yet.  There were still people in South Africa who enjoyed impunity.

Turning to the situation of refugees, migrants and asylum-seekers, the Co-Rapporteur raised concern about the proposals contained in the Government’s white paper on migration, such as to process foreign citizens on the border, including their detention.  What was the age of majority in South Africa and how were children treated by the criminal justice system, Ms. Belmir asked?  She noted cases in which minors in conflict with the law were put in the same places as children in need of care.

Other Experts noted the conflicting statements from various South African officials concerning the withdrawal from the Rome Statute of the International Criminal Court and asked the delegation to clarify the situation and brief on the status of the International Crimes Bill, which proposed that a person might enjoy immunity from international crimes under certain conditions, including for crimes of torture.

The Anti-Trafficking Act established the extra-territorial jurisdiction of South African courts over the crime of child trafficking – had any persons been charged, prosecuted, and/or convicted under this law?  Had there been any investigations and prosecutions of State officials involved in crimes of trafficking in persons, including those who reportedly had falsified birth certificates and other official documentation?  What was being done to resolve the chronic and long-standing lack of funding for the implementation of the Domestic Violence Act?

An Expert recalled that reparation to victims of torture was an obligation of the State party and noted that in South Africa, civil proceedings by the victim could only take place if there was a criminal conviction of torture for the perpetrators, which was a concern given the limited number of convictions under the 2013 Anti-Torture Act.  Another Expert remarked that segregation had replaced the abolished practice of solitary confinement but it was in fact a disguised form of solitary confinement as it allowed for isolation for a period of two months, in clear violation of the Nelson Mandela Rules.

JENS MODVIG, Committee Chairperson, addressed the issue of healthcare for detainees, and asked whether there were any formal agreements in place with subcontracting non-governmental organizations which provided health care and what systems of oversight of the treatment of prisoners were in place.

Replies by the Delegation

Responding to the questions and comments, the delegation said that South Africa held human rights activists in high regard and stressed that without those brave people, the struggle for freedom in the country would not have been possible.  Their rights, like all those living in South Africa, were enshrined in the Constitution and systems were in place to ensure that complaints of rights violations could be lodged and punished.

South Africa’s long history of oppression and subjugation was well known and expertly documented and the struggle for emancipation had not been easily won nor was it something the Government took for granted, stressed the delegation.  South Africans knew what it meant to fight for freedom and shared the collective responsibility to never again go back to the dark and awful place that sought to dehumanize.  Thus, to label South Africa violent and by extension, its people violent, was to undermine the legacy that the country lived with every single day, stressed the delegation.

The systematic manner in which the law had been used for generations to subjugate, dehumanize, and rob people of their dignity on an enormous scale must be recognized.  Instead of holding those most responsible for committing crimes against humanity – apartheid had been and still was a crime against humanity - South Africa had decided to establish a Truth and Reconciliation Commission and begin the process of healing and forgiving.  It had been a time for peace and the need for healing and forgiveness had been paramount.  This had motivated the Government to take an unprecedented step, unlike its apartheid predecessors, to sign and ratify myriad international human rights instruments, chief amongst them the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  That was also why South Africa had recently ratified the Optional Protocol to the Convention.

In a general comment on the questions raised, the delegation said that many of the issues related to issues that fell under other treaties and some went beyond the scope of the Convention against Torture.  An example was a host of questions raised on xenophobia and its causes, and details of xenophobic attacks, which were considered under the International Convention on the Elimination of All Forms of Racial Discrimination.  In South Africa, xenophobia was about class issues and competition over resources, notably for the poorest in society, the delegation underlined.

As far as the parole system was concerned, the delegation said that at present, a person who had received a life imprisonment had to serve at least 25 years of the sentence before parole could be considered.  There were different periods for the qualification of parole for such inmates, depending on when they had been sentenced; the parole of persons sentenced to life before 1 October 2004 had been identified in 2018 as a priority project for review and had been placed on the permanent agenda of the National Management Committee.

A victim of torture did not need to secure a criminal conviction to claim compensation from the perpetrator of torture and could choose both criminal and civil avenues to seek redress.  The South African law did not provide for a mere administrative award of damages but required a judicial process initiated by the issuance of a civil claim.

The Department for Correctional Services coordinated and ensured the provision of primary healthcare to the inmate population, including babies of incarcerated women.

As for the long periods of pre-trial detention, the delegation said that case flow management was under judicial responsibility, and it was the Chief Justice who issued norms and standards for the finalization of cases.  The postponement of cases was dealt with through the judiciary who generally readily granted postponement to accommodate the accused.  Various measures had been initiated to limit long outstanding cases through specific monitoring of such cases and addressing blockages across the criminal justice system.  The correctional services legislation had been amended and it now provided for referral of remand prisoners to court before completion of a period of two years in detention; if the court decided that the remand detainee must continue with detention, subsequent applications were submitted annually.  There were approximately 46,000 remand detainees and those detained for longer than two years constituted less than five per cent.

Segregation as a penalty did not amount to solitary confinement under any circumstances, the delegate stressed.  It could be administered upon the written request of the inmate, or be prescribed by the correctional medical practitioner on medical grounds, when the inmate displayed violence or was threatened with violence, or for escape attempts.

The Independent Correctional Centre Visitors was an oversight mechanism of the Inspecting Judge which was appointed for each correctional facility to inspect the conditions of detention and report on the treatment of inmates and on corrupt or dishonest practices.  All deaths in custody were reported to the Inspecting Judge, whether they were natural or not, and an independent senior official was appointed to conduct the investigation into the death of a prisoner.  If the death was due to unknown or undetermined causes, a medical post-mortem and legal full investigation must be conducted without exception to determine the causes and circumstances.

South Africa had chosen not to provide for minimum sentences in the anti-torture legislation, said the delegate, adding that a study of practices of other States indicated diverging approaches to sentencing.

The President of South Africa was personally leading the fight against gender-based violence and had called a Presidential Gender-Based Violence and Femicide Summit in November 2018, during which he had acknowledged the brutal reality of those crimes.  In addition to passing legislation preventing and prohibiting domestic violence, harassment, sexual offences, and trafficking in persons, there were various policies and programmes in place to support victims and prevent secondary traumatization.  Sexual violence was the most prevalent form of gender-based violence, and in 2017 almost 50,000 cases had been reported.  Since 2013, South Africa had established 84 sexual offences courts which offered a catalogue of victim-centric services, including court preparation services, and intermediaries who conveyed questions and statements received from the court to the victim in a sensitive and age-appropriate manner, and who could appear in cases involving child witnesses and witnesses with intellectual disabilities.  There were 55 Thuthuzela care centres in support of victims, which were attached to hospitals or clinics where a survivor could go for medical attention and have evidence of the crime collected.

South Africa had moved away from the death penalty in 1994, which had been replaced by long-term imprisonment with the maximum being a life sentence.  Sentencing was a matter of judicial independence and judicial discretion.  The South African Human Rights Commission was institutionally independent and would be the coordinating body for the national prevention mechanism.

The notice of withdrawal from the Rome Statute, as well as the International Crimes Bill, had been tabled in Parliament.  Neither of the houses of the Parliament had pronounced themselves on the notice of withdrawal, thus the current status was that South Africa was a State party to the Rome Statute.  Both bills would have to be reviewed by the next administration.  South Africa remarked that three of the permanent members of the United Nations Security Council were not States parties to the International Criminal Court and yet could exercise a veto in relation to the referral of cases to the Court.  The restructuring of the International Criminal Court was something that the international community needed to consider. Furthermore, the cases before the court were only from Africa; the success rate in recent cases had not been great and could lead to the argument that the decisions on who to prosecute were subjected to a political agenda.  South Africa was outraged by the recent denial of United States visas to the prosecutors of the International Criminal Court.

There were currently 130 shelters for victims of gender-based violence in the country.  Survivors from rural areas were reluctant to be admitted to shelters due to stigma and cultural beliefs and largely preferred to use psychological support services and skills empowerment.  In addition to shelters, there were 206 White Door Safe Spaces of Hope, an emergency temporary intervention which provided 72-hour service response to the challenge of the lack of safe accommodation for women victims of gender-based violence whose lives were in danger.  Khuseleka One Stop Centres were community-based centres that provided comprehensive services, including medical, legal and skills development services by multi-disciplinary teams comprised of social workers, nurses, doctors, police officers, court preparation officers, and prosecutors.

Restorative and healing programmes had been developed to support victims of trafficking in persons, contribute towards their psycho-social restoration and healing, and enable them to reintegrate in their families and communities.

As for minors in conflict with the law, the delegation said that the age of majority in South Africa was 18 years.  In terms of the Child Justice Act, a child under the age of 10 did not have a criminal responsibility and could not be prosecuted for the offence, but had to be referred to the probation officer for assessment and placement in an accredited therapeutic programme, as part of the intervention.  The age of criminal responsibility was 10.  Children between the ages of 10 and 18 were referred to as young offenders or children in conflict with the law and were dealt with by the child justice court.

The Prevention and Combatting of Hate Crimes and Hate Speech Bill was before Parliament, but would have to be reviewed by the next administration.  The Bill defined hate crime as an offence recognized under any law, the commission of which was motivated on the basis of that person’s prejudice, bias, or intolerance toward the victim.  The crime was based on the characteristics of the victim, including race, gender, sex including intersex, ethnic or social origin, colour, sexual orientation, religion, belief, language, birth, disability, gender identity, albinism, and others.

The amendment bill on the Independent Police Investigative Directorate, which was currently with the National Council of Provinces, proposed that torture be elevated as a stand-alone offence.  All death in custody cases and post-mortem examinations were conducted by pathologists.  There were 23 cases involving torture with the National Prosecution Authority.

With regard to arbitrary arrests by the police, including the arrests of asylum-seekers and refugees, the delegation stressed that arrest was defined by a comprehensive legal framework, which could not be selectively and restrictively applied.  Once an arrest was affected, arrested persons were brought before courts within a period of 48 hours.  If arrested persons were migrants, refugees or asylum-seekers, the police would inform the Department of Home Affairs to assist in determining whether the arrestee was legally residing in the country and whether they could be accordingly released or processed for deportation.

South Africa did not detain migrant children, and children intercepted in the course of anti-trafficking operations were handed over to the Department of Social Development.  Asylum-seekers were only detained at Lindela facility, once their asylum application had been rejected.  To ensure that asylum applications were not arbitrarily refused, the Standing Committee under the Refugees Act was in place as an independent structure to formulate and implement asylum-granting procedures and review decisions of the Refugees Status Determination Officers.  An independent refugee appeal board was also in place.

The Lindela facility had a permanent health clinic and a referral system to specialist medical care providers.  It was regularly inspected by the International Committee of the Red Cross and the South African Human Rights Commission to ensure compliance with international standards.

The Citizenship Act of 1995 made provisions for the documentation of stateless children.  The principle of non-refoulement was fully embedded in the law in terms of the Anti-Torture Act, the Refugees Acts, and court decisions, and South Africa did not return any person to a country where his or her life was likely to be harmed.

In terms of protests, the Constitutional Court had found the section on public gatherings of people unconstitutional and the Government was working to amend the legislation.  Unfortunately, a number of protests had become violent, for example the 2015/16 student protest for free tertiary education which had caused 492 million rand in damages to university property.

Questions by Committee Experts

ANA RACU, Committee Co-Rapporteur for South Africa, reminded the delegation that the Convention covered not only acts of torture but all acts of cruel, inhuman or degrading treatment or punishment.  The Co-Rapporteur reiterated the concern that the Anti-Torture Act did not stipulate a minimum sentence for acts of torture which opened up the space for a suspended sentence to be given to perpetrators.  How efficient were the monitoring visits to correctional facilities?  Over the last five years, how many medical reports containing findings of torture had been transmitted to the prosecution and how many cases had been instigated?

ESSADIA BELMIR, Committee Vice-Chairperson and Co-Rapporteur for South Africa, said that the legal provisions allowed for a prolonged pre-trial detention of up to two years and it was estimated that four per cent of all pre-trial detainees already exceeded this limit.  Furthermore, pre-trial detainees had a different legal status from the sentenced inmates and should be held separately.  As for the use of violence by the law enforcement officers, the Co-Rapporteur noted that in KwaZulu-Natal province, 257 deaths in custody had been recorded, and asked the delegation to explain.

Other Experts referred to the replies concerning the withdrawal of South Africa from the International Criminal Court and said that the problem was not whether the country was a party to the Rome Statute or not.  The heart of the problem was that the International Crimes Bill, which would probably accompany withdrawal, would effectively provide for immunity of certain persons for international crimes, thus making the prohibition of the crime of torture not absolute.

The Experts stressed the intersectionality of many of the issues that were under the remit of the Committee, and cited as an example the Convention against Apartheid, which was not too long, but the issues it dealt with were relevant to the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and a number of other international human rights instruments.  Human rights issues could not be compartmentalized, the Experts stressed.

Replies by the Delegation

The delegation said that Parliament had decided against introducing a minimum sentencing in the anti-torture legislation.  The number of life prisoners had been dramatically reduced.  The national prevention mechanism that South Africa had chosen was the multi-body model in which the monitoring and inspections were carried out by existing agencies, which were coordinated by the South African Human Rights Commission.

Segregation was not solitary confinement and was provided for under the correctional services act.  The delegation stressed that all laws in South Africa must be constitutional and those which were not were struck down.  The law prescribed for the prisoner in segregation to be checked upon by a prison guard every four hours, and visited by the head of the prison, a registered nurse and a psychologist once a day.

South Africa believed in the interdependence and indivisibility of human rights and understood the intersectionality of the areas of the Committee’s work.  The treaty bodies needed to acknowledge the reporting challenges for developing countries, said the delegation, and urged Committee Experts to refer to the proceedings from South Africa’s review by other treaty bodies, and in which a number of similar questions had been asked and answered.

South Africa had recently adopted the white paper on the management of international migration, in which it had recognized the nexus between migration management and development.  The reality should also be acknowledged in that the management of international migration could not be divorced from security considerations, stressed the delegation.  South Africa did not have a security approach to migration as attested by the institution of special procedure for fast-tracking of asylum requests, which had been used to process more than 200,000 nationals of neighbouring countries.

Concluding Remarks

JOHN JEFFERY, Deputy Minister at the Department of Justice and Constitutional Development of South Africa, said that over the past 25 years, the new democratic government had removed old apartheid laws and institutions, built new democratic institutions, and initiated laws based on constitutional rights and freedoms.  Still, poverty, inequality, and unemployment remained critical challenges, as was the fight against corruption.  South Africa had taken a collective responsibility to eradicate torture, including through the ratification of the Optional Protocol under which the national prevention mechanism would be created.

JENS MODVIG, Committee Chairperson, thanked the delegation for the dialogue and said that the question of intersectionality was being heavily debated during the treaty bodies review process.  All treaty bodies aimed to avoid unnecessary duplication but the question was what was unnecessary duplication and what were the intersecting areas.  Torture could be committed against women, children, or persons with disabilities, and it must be acceptable for the Committee against Torture to address those issues in the dialogue.  The Committee would select three urgent recommendations for follow up, on which the State party would need to report within a year.  All States parties were encouraged to also submit a review of the implementation of the Committee’s concluding observations.

Distributed by APO Group on behalf of United Nations Office at Geneva (UNOG)

Rooftop farms may be next big thing in agri-business – Signium Africa (www.signium.co.za)

City-wide hydroponic rooftop farming co-operatives have the potential to become the next big thing in commercial agriculture. The prediction comes from Signium Africa, an executive search and talent management company with a large book of agri-business clients in South Africa and across the sub-Saharan region. Annelize van Rensburg, director responsible for Signium Africa’s agriculture portfolio, says first signs of the rooftop farming explosion are already evident, with black small-scale entrepreneurs in the forefront.

Van Rensburg notes: “We work for major corporates in the agricultural industry, but stay close to all important developments in the sectors we serve and the growing potential of hydroponic-based rooftop gardens in inner cities is the biggest trend on the mid-term horizon.

“Many of today’s big agri-businesses began as farming cooperatives that were formed decades ago when farmers banded together to achieve economies of scale and secure sustainable profits. The burgeoning growth of individual rooftop farms suggests similar potential exists for the formation of city-wide cooperatives by rooftop farmers. “The trend is taken seriously by the banks and organisations like Agbiz, the agricultural business chamber.

We expect critical mass in the next couple of years.” Rooftop farms are created when ‘agripreneurs’ rent empty space on the top of city buildings and use water-efficient hydroponic cultivation to grow vegetables and other crops. Inner city locations create logistic efficiencies as the farms are within walking distance of their target market – city dwellers looking for affordable food sources.

Karen Grobler, Agbiz marketing and communications manager, confirmed the organisation monitored transformation initiatives, including rooftop farms, and was excited by prospects. She says: “Our focus is on established formal business, but these small-scale entrepreneurs certainly have potential for sustained growth. We’re particularly impressed by the resourcefulness of these industry entrants.

“They are often businesswomen with a talent for creating solutions. For instance, some are looking at bio-reactors and solar energy to reduce their reliance on the electricity grid as hydroponics need a dependable power source. They already supply local retailers. Further growth can be expected.” The banks are also close to rooftop developments. Loffie Brandt, head, sales enablement, at Absa Bank, says there is “significant future potential for a massive uptick”.

He adds: “It is certainly a space where we could play in as finance is needed by all growth-minded business. Size is not always essential as with hydroponics there is potential for high-volume production at a single site. This suggests commercial viability could be achieved by small, individual operators.” One highly successful agripreneur, Sibongile Cele, has already demonstrated the growth potential up on the roof.

Her Mcebo Wealth Rooftop Farm has been supplying organically grown produce for more than two years. Crops include lettuce, spinach and herbs. The hydroponic system employs metal racking for maximum space efficiency, enabling vegetables to be grown ‘off the shelf’. Her operations in Hillbrow, Johannesburg, were funded by the Small Enterprise Development Agency and she currently reaches retail markets via an agent. She says: “I have an accounting background, so commercial success is important to me, but I also have a social mission. Providing food for the community gives me a sense of purpose.

It is also important to set an example for other women and show we can be successful, run businesses and provide food for our families and communities. “This is only the start. The sky’s the limit for rooftop farming.” Ends 

 Signium Africa (previously Talent Africa) is a leading South Africa-based executive search and talent management company servicing sub-Saharan Africa. 

Website: www.signium.co.za Tel:                 +27 11 771 4800 Issued By:     Tale Spin Media & Marketing    Zelda Williams 082 461 0689 or Gillian Schmid 082 960 3233   This email address is being protected from spambots. You need JavaScript enabled to view it.                     This email address is being protected from spambots. You need JavaScript enabled to view it. 

South African technology companies DoshEx (www.doshex.com) and Digital Twin (www.digitaltwin.digital) unveiled a world first designed to revolutionise the security and integrity of solutions deployed across the Internet of Things (IoT). IoT is the next big thing in digital connectivity whereby devices ‘talk’ to physical objects – from lightbulbs to vehicles and manufacturing plants – via a complex system of sensors.

Scalable and reliable IoT is the overriding goal of major technology players worldwide, but secure interaction between various components in these networks has proved to be a major obstacle – until now! DoshEx CEO Alex de Bruyn noted: “DoshEx is a leader in blockchain deployments while Digital Twin is an innovator in the realm of fourth-generation edge devices that provide access to enterprise networks.

“Our collaboration enabled us to create a globally scalable solution to the problem of harnessing blockchain technology without the need for outside verification of events logged by a blockchain. We call the new product Sherlock. “The IoT nightmare is that ‘bad bots’ might create havoc in the case of cybercrime or system malfunction. Sherlock will help developers put these fears to rest.”

Richard Creighton, CEO of Digital Twin, commented: “Secure, automated and highly dependable field data is essential in achieving the next generation of cross business insight and control, we believe we’ve made this possible. It could even be a world-first. “The industry forecast is that $15 trillion will be invested in IoT by 2025. But IoT creates a multitude of technical and scientific challenges. Sherlock addresses one of the big potential snags to rapid IoT uptake by bringing together blockchain technology and edge-based connectivity in a seamless but secure manner.

“It is essential that IoT solutions enjoy public and investor confidence. Sherlock will significantly increase the level of trust and open the way for serious IoT development.” A blockchain is an immutable set of records linked together cryptographically through a series of interconnecting blocks, creating an everlasting record of transactions and responsibilities. When events are input it is necessary to verify an event actually occurred. For independent verification, a digital third-party, an oracle, is connected to the system.

An oracle, as a component of blockchains and smart contracts, is an ‘agent’ that finds and verifies real-world occurrences and feeds confirmation to the blockchain for integration into a smart contract, ensuring all parties can trust the record of events. Oracles as a data-feed and an element of multi-signature contracts have no connection with the company of the same name.  However, any third-party input creates a theoretical risk the truth might be tampered with. Now, to create absolute trust, Sherlock offers a built-in oracle solution. In technical terms, DoshEx developers and Digital Twin innovators connected an inbound oracle input from an edge-capable device over a globally enabled USSD network (the global communication system used by mobile technology).

This ensures trusted and SHA256 encrypted input into a blockchain. Encryption using the SHA256 algorithm is tamper-proof. Creighton added: “By using USSD, the edge devices and their inputs can be instantly globalised without reliance on any specific local cellular provider. The edge device can travel anywhere in the globe and transmit encrypted messages into the blockchain.” The Sherlock collaborators can now build industry-specific IoT-enabled smart contracts for large value chains across multiple participants that rely on trusted data. Said Alex de Bruyn: “An example would be mining firms that have to measure quality and quantity from pit to port or a construction group that has to confirm events throughout the build process and critical milestones captured, such as field results of concrete testing, documentation sign-off and versioning, as well as key progress reached as signed off by the professional team, using an IoT-enabled biometric sensor. “The combination of IoT and blockchain will revolutionise efficiency across value chains … and Sherlock is a key enabler, locally and worldwide.”

-- ENDS --

About DoshEx
www.doshex.com DoshEx is a South African company pioneering the development of crypto-tokens and digital assets. Related DoshEx products and services include tokenised solutions for corporates and SOEs, safekeeping of funds and the design and deployment of blockchains and Smart Contracts. DoshEx’s focus is to drive the adoption of tokenised solutions at an enterprise level by implementing blockchain technology into their current business models.

About Digital Twin
Digital Twin is an industry 4.0 focused business and an indirect service provider to a network of specialist and vertical market-focused solution providers. The Digital Twin platform offers this network of specialists the ability to enhance their offering to their customer-base and enable them to deliver bankable ROI projects and services. The platform offers multiple entry points:- Tier 1 – Edge-capable hardware solutionsTier 2 - Global connectivity and data brokerTier 3 - Management console and visualisation Tier 4 - Specific value in use consultation and design Digital Twin offers unique services to its network of specialists, from standardised solutions to rapid prototyping of hardware and software as well as industry 4.0 consultation expertise. 

Contact: www.doshex.com
Alex De Bruyn
Tel:  +27 11 468-5236

Issued By: Tale Spin Media
Zelda Williams
082 461 0689

Capability is powered by Masterpass, Mastercard’s digital payment service

FNB, South Africa’s best digital bank, is expanding its digital payments ecosystem by enabling consumers and sole proprietor businesses to perform and accept QR code payments using the FNB Banking App.

This makes FNB the first bank in South Africa to integrate QR code payments for both consumers and sole proprietor businesses on a banking app. The integration of QR code payments on the FNB Banking App which has 2.8 million active users helps customers with another simple choice in digital payments as there is no need to download any additional app.

Raj Makanjee, FNB Retail CEO, says “We are rapidly expanding our digital payments ecosystem by providing customers with helpful digital payments solutions. The ability to make QR code payments offers our customers convenient and secure alternatives to carrying cash. As pioneers in innovation, we are consistently developing a wider selection of customer centric solutions in digital payments, including solutions such as GeoPay and FNB Pay.”

Mike Vacy-Lyle, FNB Business CEO says, “As the leading business bank in South Africa, we continue to make significant strides in ensuring that our solutions cater for the entire business value chain, of which the ability to process convenient and safe payments is a key component. This industry-leading payment solution helps us to grow digital payments acceptance among business customers and reduces reliance on physical cash, which remains one of the biggest challenges for such businesses from a cost, security and time management perspective.”

To make payment, individual FNB customers can simply enable the new FNB App ‘Scan to Pay’ widget on their smartphones. Alternatively, they can select the Payments option on the FNB App, login and select FNB Pay, then click on ‘Scan to Pay’.

Similarly, businesses will select Payments, login and click on ‘Speedpoint’, register and begin to utilise the service within 24 hours. Businesses have the option to display the QR Code within the FNB app, email and print the QR code, or share it via social media. There are no monthly rental or maintenance costs which makes this a cost effective means for a business to accept digital payments. Those businesses that do not bank with FNB can open an account, register and start accepting QR code payments all within the FNB App.

This innovative capability is powered by Masterpass, Mastercard’s digital payment service, which is interoperable with most major domestic scan-to-pay services, representing a footprint of approximately 140,000 merchants and billers.

“We are excited to partner with FNB to further accelerate the adoption of digital payments in South Africa, using Masterpass’ existing QR code infrastructure,” says Mark Elliott, Division President, Mastercard, Southern Africa. “It furthers our goal of enabling consumers and businesses to transact anywhere, at any time or place, across any channel or device from a single app on their smartphones.”

“FNB remains committed to providing helpful digital solutions that enable consumers and businesses to make and accept payments, respectively. Over the years, the bank has remained at the forefront of digital innovation, including empowering its client service staff to help customers along its digital journey,” concludes Makanjee.

Eight risk areas underscore how the shift to digital is bringing great opportunity and more risk

Aon, the leading global professional services firm providing a broad range of risk, retirement and health solutions, released its 2019 Cyber Security Risk Report. The report, which details the greatest cyber security threats and challenges organisations are currently facing, discusses that as companies continue to use technology to speed up the transfer of information, game-changing business opportunities are created, as well as increased cyber risk. 

"In 2018 we witnessed that a proactive approach to cyber preparation and planning paid off for the companies that invested in it, and in 2019, we anticipate the need for advanced planning will only further accelerate," says J. Hogg, CEO of Cyber Solutions at Aon. "Leaders must work to better insulate their companies and their processes, while simultaneously identifying the ways they can benefit from the opportunities offered through technology and digital transformation."

Hogg continues, "Our 2019 report also shows that organisations must recognise the need to share threat intelligence across not only their own network but with others as well. While it may seem counterintuitive when thinking about cyber security, collaboration within and across enterprises and industries can keep private data of companies and individuals alike safer. Working together can result in improved efforts to hunt bad actors, while also raising the bar and making all parties more prepared for the inevitable day when a disruption does happen." 

The "What's Now and What's Next" report focuses on eight specific risk areas that companies may face in 2019. The risks illustrate how, as organisations transition to a digital-first approach across all transactions, the attack surface of global business expands rapidly and sometimes in unexpected ways. In other words, thanks to the rapid enhancements and constant changes in technology, the number of touchpoints that cyber criminals can access within a business is growing exponentially.

Highlights from the report include:

1. Technology – While technology has revolutionised the way organisations today conduct business, broader and wider-spread use of technology also brings vulnerabilities. From publishing to automotive, industries are facing new, evolving services and business models. These new opportunities, however, bring with them a radically different set of risks, which organisations will need to anticipate and manage as they continue the digital transformation process.

2. Supply Chain – Two prevailing supply chain trends will heighten cyber risks dramatically in the coming year: one is the rapid expansion of operational data exposed to cyber adversaries, from mobile and edge devices like the Internet of Things (IoT); and the other trend is companies' growing reliance on third-party—and even fourth-party—vendors and service providers. Both trends present attackers with new openings into supply chains, and require board-level, forward-looking risk management in order to sustain reliable and viable business operations.

3. IoT – IoT devices are everywhere, and every device in a workplace now presents a potential security risk. Many companies don't securely manage or even inventory all IoT devices that touch their business, which is already resulting in breaches. As time goes on, the number of IoT endpoints will increase dramatically, facilitated by the current worldwide rollouts of cellular IoT and the forthcoming transition to 5G. Effective organisational inventory and monitoring process implementation will be critical for companies in the coming year and beyond. 

4. Business Operations – Connectivity to the Internet improves operational tasks dramatically, but increased connectivity also leads to new security vulnerabilities. The attack surface expands greatly as connectivity increases, making it easier for attackers to move laterally across an entire network. Further, operational shortcuts or ineffective backup processes can make the impact of an attack on business operations even more significant. Organisations need to be better aware of, and prepared for, the cyber impact of increased connectivity.

5. Employees – Employees remain one of the most common causes of breaches. Yet employees likely do not even realise the true threat they pose to an entire organisation's cyber security. As technology continues to impact every job function, from the CEO to the entry-level intern, it is imperative for organisations to establish a comprehensive approach to mitigate insider risks, including strong data governance, communicating cyber security policies throughout the organisation, and implementing effective access and data-protection controls. 

6. Mergers & Acquisitions (M&A) – Projections anticipate that M&A deal value will top $4 trillion in 2018, which would be the highest in four years [1]. The conundrum this poses to companies acquiring other businesses is that while they may have a flawless approach to cyber security enterprise risk, there is no guarantee that their M&A target has the same approach in place. Dealmakers must weave specific cyber security strategies into their larger M&A plans if they want to ensure seamless transitions in the future. 

7. Regulatory – Increased regulation, laws, rules and standards related to cyber are designed to protect and insulate businesses and their customers. The pace of cyber regulation enforcement increased in 2018, setting the stage for heightened compliance risk in 2019. Regulation and compliance, however, cannot become the sole focus. Firms must balance both new regulations and evolving cyber threats, which will require vigilance on all sides.

8. Board of Directors – Cyber security oversight continues to be a point of emphasis for board directors and officers, but recent history has seen an expanding personal risk raising the stakes. Boards must continue to expand their focus and set a strong tone across the company, not only for actions taken after a cyber incident, but also proactive preparation and planning.

Learn more about the risks included in Aon's 2019 Cyber Security Risk Report.

By Aalia Manie, a Partner at Webber Wentzel and an expert in technology related law and Intellectual Property

Rapid advances in technology and artificial intelligence in the mining industry raise issues like data protection, intellectual property ownership and legal liability. In the current absence of specific legislation to govern emerging technologies like artificial intelligence, businesses must continue to rely on existing laws and ensure that they enter into robust contracts.

In December, government invited the public to nominate candidates to serve on the Presidential Commission on the Fourth Industrial Revolution (4IR).

This development should be of interest to the mining industry, where artificial intelligence, big data and technology are rapidly converging in various ways.

The 4IR is creating a need for regulation on issues such as unemployment, intellectual property (IP), data privacy and security, and liability for defects and loss of control.

The commission, announced in President Cyril Ramaphosa’s state of the nation address earlier in the year, will identify what strategies, policies and plans SA should put in place to position itself as a leading country in the technology revolution. However, these regulations have yet to be drafted and their nature and scope is not yet known.

In the mining sector, some companies are using digital twinning, a virtual reality environment that mirrors the mining environment and is used for training employees on potential risks in the workplace. They are increasingly investing in autonomous vehicles and equipment. There are also intelligent data analytics systems enabling valuable analysis of data, which are collected using the internet of things (IoT) technology. For example, the latest mining equipment can be fitted with sensors that generate messages about breakdowns or safety issues. With better data, capital and labour can both be optimised, allowing for better decision-making.

Artificial intelligence is being deployed in a number of other industries, too. Yet at present there is very little specific legislation, either in SA or anywhere else, to manage its effects.

For companies wishing to access the latest emerging technologies, there are key issues that need to be addressed, no matter what business model is used.

When using or licensing technology systems or services owned by a third party, companies must be particularly cautious when they become reliant on that third party's system or services in order to operate. Where the third party technology is integral to ensure effective or ongoing operations, companies must protect their interests through careful contracting around issues such as scope of use, termination rights, service levels, liability for loss of access or defective service delivery and insolvency of the third party.

Contractual negotiation also presents challenges. When the technology owner is aware of the company's reliance on the system, it has greater bargaining power in setting pricing and terms.

Companies can also access or develop technology through commercial partnerships and joint ventures. A critical issue from an intellectual property perspective is ensuring clarity on ownership of jointly developed intellectual property and databases, and who owns and/or may use them if the relationship terminates (which may be particularly problematic if the termination happens on acrimonious terms).

A third way of procuring technology is through acquiring or ownership of the IP in the technology, which gives rise to typical merger and acquisition issues such as the necessity for a due diligence to confirm the rights of the seller in relation to the technology.

Companies can also build new technology by developing it in-house or with an academic institution, as some mining companies are already doing. Companies using university facilities for research and development must be aware of the IP implications of engaging in publicly funded research and development through academic institutions, which are governed by the Intellectual Property from Publicly Funded Research and Development Act (IPR) Act.

The technology evolution is exciting, but it also presents challenges which must be carefully considered and addressed as part of effective business planning and strategy.

Whatever approach SA takes towards regulating artificial intelligence and emerging technologies, it should align itself as closely as possible with global best practice to ensure uniformity. SA has to remain competitive as a jurisdiction for technology investment, research and development.