South African Human Rights Commission (SAHRC) & Legal Aid South Africa on their 2010 Strategic Plans & Budgets

Meeting report

South African Human Rights Commission (SAHRC) Chairperson’s Report
Advocate Lawrence Mushwana, Chairperson of the Human Rights Commission (SAHRC) informed the Committee that his document was based on the first impressions of the newly appointed SAHRC. The previous Chief Executive Officer (CEO) and Chief Financial Officer (CFO) both left when the new Commission was appointed. The financial auditors had already begun with auditing the SAHRC’s books and there was confidence that the financial state of affairs was in good order. The staff had formally complained to the Speaker of Parliament prior the time the new Commission was appointed. This was not an easy matter to deal with. Staff morale was “down” but this was improving. The Speaker would receive a detailed report once the SAHRC was satisfied that the matter was dealt. There had been a steady decline in the number of public complaints and the SAHR was unsure as to why this was the case. There was a big influx of complaints regarding hate speech and race related matters.

The Chairperson interrupted Adv Mushwana and said that when the Commission was dealing with strategic plans, it had to highlight how the entity was responding to the challenges that it faced.

SAHRC Strategic Plan
Adv Nalezani Mukwevho, Acting CEO, said the SAHRC had eight priorities. The first priority was the monitoring of economic and social rights. The emphasis of the Commission’s priorities was on the monitoring function. The Commission looked at the extent to which citizens were enjoying these rights as well as the extent to which their rights were protected. The second and third priorities looked at the internal systems of the Commission. Priority six dealt with human resource capacity. Priority eight dealt with the budget, which was very limited. The budget was not enough to support the operations of the Commission. The budget addressing the Promotion of Equality and the Prevention of Unfair Discrimination Act (PEPUDA) and Promotion of Access to Information Act (PAIA) was inadequate. The limited budget made it difficult to attract new talent. It was a concern that  the Commission was unable to budget at a higher level due to limited funding. 

The purpose of the Commissioners’ programme was to provide leadership and guidance for the professional work of the Commission through the facilitation of the South African human rights agenda at international, regional, national and provincial levels. The first objective for the Commissioners was to provide broad oversight and leadership of the Commission’s operations. This objective correctly captured the function of the Commissioners within the organisation. The Commissioners were supported by the secretariat of the office of the CEO. The purpose of the Office of the CEO was to establish and maintain an effective and efficient corporate governance framework that ensured accountability to Commissioners for the management of the organisation through improved mechanisms for controlling and directing performance management activities. The Office of the CEO was obliged to facilitate the strategic objectives of the organisation. The Office of the CEO was responsible for complying with the Public Finance Management Act (PFMA). The Office of the CEO was tasked with the internal audit functions. The purpose was to develop a structured process for measuring, monitoring and controlling operational risks that allowed for systematic selection of cost effective approaches to minimising threats to the Commission’s operations. The Legal Services Programme was a core programme; its purpose was to provide quality legal services through the investigation of complaints of human rights violations, as well as seeking redress through the courts. The Education and Training Programme made it the Commission’s imperative to go out and educate citizens on how to access their rights. The Research, Documentation and Policy Analysis Programme was summarised under the first measurable objective in the plan. The Parliamentary and International Affairs Programme could be divided into national and international obligations. The first two measurable objectives dealt with the Commission’s national obligations whilst the third one dealt with international obligations. 

The Information Technology (IT) department was resizing the Information and Communications Programme. It was important to have efficient IT infrastructure and the Commission was having major challenges with this. The Administration and Supply Chain Management Programme was vital where compliance was concerned. The organisation had received a clean audit for the previous financial year. PFMA compliance was not negotiable where the Financial Management Programme was concerned. The Human Resource Management Programme recognised that the nature of the organisation’s work was human resources intensive.

SAHRC Budget
Mr Masaswivona Nhlungwana, Acting Head of the Finance Programme, said that it was important to note that the salary increases were 5.3%, 5.5% and 5% for the Medium Term Expenditure Framework (MTEF) period 2010/11, 2011/12 and 2012/13 respectively. These figures had not taken into account current personnel costs. The personnel cost was R43 million for the period 2009/10. If one had to calculate 5.3% of R43 million, this came to R2.2 million; but yet only R1.4 million had been allocated? The SAHRC was already experiencing tremendous difficulties in managing the human resource department. Nothing had been allocated for capacity and office accommodation costs for the 2010/11 financial year. The population of South Africa was growing continually and yet the SAHRC was expected to service this population at a zero growth rate. It was unbelievable to note that the method for devolvement of funds for the regional offices by the Department of Public Works dated back to 2004.

Mr J Jeffery (ANC) interrupted and expressed confusion over the figures. The figures for the baseline allocation in the slide presentation were different from those in the Strategic Business Plan document. Which figures were correct?

The Chairperson asked Mr Jeffery to hold on until the presentation was finished.

Mr Jeffery responded that he was raising a point of order as he would not like to sit and waste time listening to a presentation with inaccurate figures, the presenter had to explain upfront which figures were correct.

Mr Nhlungwana responded that the correct figures were those on the slide.

Mr Jeffery asked if the figures on page 53 of the Strategic Business Plan document were wrong?

Mr Nhlungwana replied in the affirmative.

Mr Jeffery commented that a false Strategic Business Plan had been tabled.

The Chairperson proposed that the presentation should continue and it would be interrogated later.

Mr Jeffery said one would have expected for the mistakes to be highlighted upfront to the Committee.

The Chairperson sympathised with Mr Jeffery and requested that the presenter should finish.

Mr Nhlungwana continued that 68% of the budget had been allocated to personnel costs. R10 million was allocated to rentals. The figure for these two expenditures was close to R60 million and only R13 million would be left over. These were the funding difficulties they faced.

Discussion
Mr Jeffery asked what was the actual budget allocation for 2010/11?

Mr L Landers (ANC) said that the Committee deserved an explanation at the very least.

The Chairperson asked the SAHRC to respond as this was going to be a burning issue for the Committee.

Mr Nhlungwana referred to page 32 of the slide presentation under the heading Employees Compensation. The allocation from Treasury for 2010/11 was R73.4 million and in addition R1.4 million had been allocated for the compensation of employees. If one had to compare this figure of R75 million then the difference would be R1.4 million. This was the misunderstanding with National Treasury when the allocation letter was received from them. The understanding was that the R73 million excluded the R1.4 million however when the figures were presented to National Treasury the R1.4 million was already included in the R73 million. The R1.4 million was reserved for the compensation of employees.

Mr Jeffery asked what was the figure allocated to SAHRC in the Appropriations Bill?

Mr Nhlungwana responded that it was R73 million.

Adv Mushwana referred to page 29 of the Chairperson’s Report where he highlighted that the SAHRC had limited time especially as it had new commissioners. Another document would be tabled, as there were changes that had to be made. The SAHRC apologised for the error however the acting CFO had only been in his position for one and a half months.

The Chairperson said this was not acceptable. The Committee was not at the meeting to listen to a dry run exercise. Such material differences should not be tolerated at any self-respecting institution. The fact that the Commission was new meant that it had to have worked overtime for this meeting. The only choice was for the right figures to be presented.

Dr M Oriani-Ambrosini (IFP) said that the strategic plan was exactly the same as the one that was tabled before the Committee the previous year. According to Adv Mushwana, the SAHRC had been swarming with complaints about hate speech yet no statements had been released by the Commission on this. Why did the Democratic Alliance have to do the human rights work in this country? How many cases of prisoners being abused and of police brutality had been detected and exposed by the SAHRC? As a Member of Parliament he had raised an issue with the CEO on a matter relating to PAIA and not even a letter of acknowledgment was sent. It was unknown what the SAHRC was doing and their budget should be halved, especially their salaries.

Mr S Swart (ACDP) said the budgetary constraints were appreciated, however more had been expected from the SAHRC about comments on the hate speech that was going on, especially about the song ‘Kill the Boer, Kill the Farmer’. The Commission had dealt decisively and quickly with the ‘Kill for Zuma’ song in 2008 that was sung by Mr Malema. There was a high level of tension in society currently and the Commission should have been more proactive in at least writing an opinion piece. The SAHRC had to comment on this. An Equality Court’s decision was undermined by Mr Malema. Could there be a comment on the disregard for the rule of law? Did the SAHRC only act on complaints or could it also issue statements of condemnation in the media? The budget issues deserved sympathy and the Portfolio Committee also had to be responsible for this. The Committee had to assist the Commission.

Mr Landers said that even though this was a new Commission, the harsh reality was that one had to hit the ground running. The ‘acknowledgment of receipt’ failure raised by Dr Oriani-Ambrosini was a chronic problem throughout the government. Professor Kader Asmal in this country was actually doing the work of the SAHRC. Who owned the buildings that were occupied by the SAHRC which were not being maintained?

Mr Jeffery said that the administration of the Commission was in actual fact not new as it was an acting CEO and CFO who were presenting. The mistake with the figures was fairly basic. There were complaints in the past about the Commission’s far reaching findings in the past, which seemed to have been made by staff. It was important that Commissioners and not staff should take decisions, they should also be thought out properly. One of the complaints that had been made was that PAIA was not functioning properly particularly where local government was concerned. One of the solutions that had been discussed in the deliberations for the Protection of Personal Information Bill was that everything relating to PAIA should be assigned to the Information Regulator that would be set up for the protection of personal information. Should the new Regulator that would be concerned with protecting personal information also be burdened with PAIA? The SAHRC has complained about limited funds and yet it was virtually invisible. The Commission had to take PAIA very seriously and the Portfolio Committee could assist through a naming and shaming exercise by summoning government bodies to account before it. There should be a dedicated Commissioner to deal with PAIA, putting PAIA under Corporate Services in the document showed a complete lack of understanding for it.

Mr Lander said that the point being made was that the previous Commission had a dedicated full time Commissioner who dealt with PAIA, Mr Leon Wessels. He always raised serious concerns over PAIA, and the Commission was urged to appoint someone.

Ms N Michael (DA) expressed concern over the resignations of senior personnel within the Commission. What were the reasons for the resignations? Was it because the Commission could not compete financially or were the staff not happy? How many of the staff were in acting positions? The Commission should consider having a stakeholder meeting where it could discuss current issues and share ideas. How was the research and the gathering of information going to be carried out and who was going to be involved?

Ms M Smuts (DA) said that the Commission did not carry the sole blame for the ineffectiveness of PAIA in South Africa. The Commission had not been funded properly to assist in this respect. It was important for the Commission to compile a list of outstanding matters and issues that it had to resolve. These were the vacancy rate, the Human Rights Act of 1994 had to be re-written as it was not even compliant with the 1996 Constitution, the regulations for staff, and the conditions of service for the Commissioners. The Portfolio Committee was solely responsible for the first two and should assist in the matters that followed thereafter.

Mr Jeffery said that he had never seen a document requesting more money for PAIA. It would be useful for the Commission to present their requests for PAIA to the Committee. There had not been any proposed amendments tabled before the Committee concerning the Human Rights Act.

Dr Oriani-Ambrosini asked for the Commission to provide a list of human rights violations where the SAHRC had intervened.

The Chairperson said that the Committee was concerned about the lack of acknowledgment of receipt of a letter from an MP, the lack of results and access to information. There was lack of analysis about the current state of affairs in the Commission’s business plan. The document did not clarify what the funds would be used for by the SAHRC. The CEO spent a lot of time complaining about a shortage of money when it was unclear what the funds would be used for in the first place. If one had to be strict, based on what was presented, he would not have given them the money. If money was going to be spent, then one had to know exactly for what it was going to be used.

Adv Mushwana said that perhaps the Commission had misunderstood the letter of invite from the Committee for a briefing on a forward looking strategic plan and not on what the Commission had done. The year ended on the 31 March and the Commission was busy compiling a report on what it had done. The complaints handling mechanism was drawn up in 1994 and it was out of sync. The Commission had already had three meetings with the Minister on the complaints handling mechanism and the Act. The Commission had also submitted suggestions about amending the Act and it was unclear how Mr Jeffery ascertained that there were no such submissions. Parliament had informed the Commission that the Bill would be tabled in October. The members should give specific details regarding the lack of acknowledgment of receipt, as this was a concern that the Commission wanted to address.

The Commission was aware that perhaps it had not responded adequately to some of the issues in the media. Sometimes a complaint would be in the media before being formally raised with the Commission. Sometimes it was difficult to give an opinion on a compliant when one had not received it and studied it but it was being discussed in the media. This also worried the Commission.
 
 Mr Nhlungwana added that the maintenance of the building comprised mostly cleaning. The funds for the rental were included in the baseline figure.

Adv Mukwevho said that the Committee was revising its targets to ascertain if they were realistic. Commissioners had even discussed this with the head of programme. The issuing of findings by ordinary staff members had also been questioned by the new Commissioners. All findings were now made through Commissioners. The positions of the CEO and CFO were currently vacant. It was difficult to say why the previous incumbents had resigned from these positions. The Commission appreciated the suggestion for a stakeholders meeting. The Commission would revisit the monitoring programme as it was very important.

The Chairperson announced that the South African Legal Aid representatives had arrived and asked for the Committee to permit SAHRC to respond to some of their questions in writing.

Mr Swart agreed but asked for a response from the Commission regarding their role within the current volatile situation in the country.

Commissioner Pregs Govender, Deputy Chairperson of the SAHRC, replied that the Commission comprised new Commissioners from a diverse background and thus after one and a half month’s it was unrealistic to expect a consensual position on all issues. The Commissioners had also raised many of the issues that were raised by the Committee regarding the strategic plan. Page 59 – 79 of the previous Annual Report contained some of the concerns that the Commission had regarding PAIA. The SAHRC had reports on the work done on farm workers, health and a whole range of very valuable investigations. The reports had been brought to Parliament. The key question was how was Parliament processing these reports and how was it ensuring that the recommendations were being implemented or effected. An information commissioner was needed in order to facilitate the practical accessing of information.

The Chairperson thanked the Commission and gave them two weeks to provide the Committee with written responses.

 Legal Aid South Africa (LASA) Strategic Plan
Judge Dunstan Mlambo, Chairperson of LASA, referred to Slide 5 which indicated the approach that LASA had adopted in formulating the strategic plan. The four key components of the strategic plan were Financial, Customer, Learning and Growth as well as Internal Business Processes. The mandate of LASA came from the Constitution and the Legal Aid Act. LASA had to consider the context of the environment in which it operated when it crafted the strategic plan. LASA had considered health, living conditions, poverty and the economic situation. The legal and justice sector was also analysed. LASA considered children awaiting crime, case backlogs, prisoners awaiting trial, the number of violent crimes and the inequality that existed in South African life.

Slide 23 identified four outcomes: for there to be an efficient and effective justice sector; justice for all focusing on the poor and vulnerable; a sustainable and efficient organisation; for citizens and communities to live by the rights enshrined in the Constitution. LASA was sought out throughout the continent and internationally.  LASA had 17 strategies, the main strategy was to increase access as well as focus on quality legal services.

Ms Vidhu Vedelankar, CEO, continued that LASA’s methodology in its plan was to ensure that there was focus on all aspects of the business. The bottom line was to ensure there was delivery of quality legal services. The client, community aspects as well as the finance and affordability aspects were considered as externally focused aspects. The internal business process and employee and organisational aspects were internal, focused aspects. The client and community components were at the core of the business. The strategies were incorporated into programmes where LASA wanted to ensure that it was client focused and that it increased access. It was also important to focus on expanding the brand of the organisation in order to reach many more South Africans. The finance and governance issues were monitored as well as quality. The legal quality assurance unit undertook this. Organisational capacity referred to the national footprint of LASA via its nationwide offices.

Judge Mlambo in closing said that LASA was aiming for one practitioner per court but the budgetary constraints were preventing this. The regional courts were the busiest and LASA wanted to meet the demand. Courts had now started to order LASA to provide legal aid to affluent individuals. In the Gary Porritt case the judge had ordered LASA to provide legal aid at senior counsel rates. This was despite the fact that the defendants flew to court cases. LASA was challenging the ruling but this was a trend. The trials were expensive and if this trend continued, it would have a serious effect on the budget. In the Boeremag case LASA fought the matter right up until the Appeal Court and lost there. The Constitution had to add its voice to this matter.

Discussion
Mr G Ndabandaba (ANC) thanked LASA for an excellent report. He asked how did LASA select lawyers from Judicare and what did they do to those who provided shoddy work.

Mr Jeffery congratulated LASA on an excellent report. Why had LASA requested more money for the implementation of the Child Justice Act, as the Act did not require the presence of lawyers at the preliminary stage of an inquiry? What was the budget for legal aid during the World Cup as there would be special courts running? What was the progress of the civil litigation claims for farm workers?

Ms Smuts asked on what grounds did the Supreme Court of Appeal turn down LASA in the Boeremag case?

Judge Mlambo replied that the initial number of accused in the Boeremag case were 23. Some of the accused did not pass the means test. The court had said that the case was extraordinary and would take a long time. The funds of the accused would probably run out before the trial ended. The Legal Aid Board then decided that they would represent the accused once their funds ran out. Usually lawyers were not appointed by the accused, instead Legal Aid appointed a lawyer. If someone fired the appointed lawyer for no good reason then LASA would no longer assist that person. However in the Boeremag case, LASA was instructed to provide lawyers for the accused, this enabled them to choose their own lawyers and they duly did so. LASA lost the case not to represent the accused because it was deemed unconstitutional for an accused to be unrepresented in a criminal law case, it was not in the interests of justice. In the Garry Porritt case the accused refused to disclose his wealth in order for a means test to be applied. The judge instructed LASA to provide advocates to represent the accused and the judge also instructed LASA to provide a certain number of advocates. The pre-trial costs would thus be in the region of R60 million for this case. The problem was that the Constitution was often relied upon by the accused who did not want to spend his own money in court. The civil claims for farm workers was outsourced by the Department of Land Affairs and the cost was probably twice as much as what Legal Aid would charge. LASA had an accreditation list for lawyers and this was based on the BEE status of lawyers. Individuals or firms had to put themselves on this list. Those practitioners who provided shoddy services were removed from the accreditation list and banned.

Mr Brian Nair, National Operations Executive for LASA, said that the necessary cost for the Child Justice Act was providing a lawyer in each case as Magistrates were requiring the presence of a lawyer during the pre-trial inquiry.  LASA was actively involved in World Cup preparations and had already included a budget for its plans. It had drawn up contracts for extra staff that would work during that period and once the final budget was approved they would sign their contracts. LASA had been engaging with the Department of Land Affairs but it was unlikely that LASA would be used by the department. Land Affairs had said that it would renew the contract of the outsourced firm.

Mr Swart asked how much it cost the Department of Land Affairs to outsource to a private firm.

Mr Jeffery said that it would be unfair to burden LASA with providing this information. The Committee should rather ask the Portfolio Committee dealing with Land Affairs to obtain the information and then provide it to the Committee.

Mr Landers said that the Committee should just ask the Minister of Land Affairs directly.

Mr Ndabandaba asked of the 48.5 million people that were serviced by Legal Aid, what percentage was from the rural areas.

Mr Nair replied that 92% of cases were criminal cases. Civil legal aid was provided in mostly rural areas, the demand was bigger there.

The Chairperson commended LASA for their excellent report as it had measurable outputs, objectives as well as a commitment to targets.

Meeting adjourned.