SAHRC Report on Rule of Law, Justice & Impunity: Institutional Responses to 2008 Violence against Non-nationals & Current Activities to counter Xenophobia

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Justice and Correctional Services

20 July 2010
Chairperson: Mr N Ramatlhodi (ANC)
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Meeting Summary

The South African Human Rights Commission had investigated the violence against non-nationals during 2008. It reported a number of findings, mainly on the way in which the authorities had dealt with the events.  Its main focus areas were the rule of law, access to justice and the sense of impunity to the law which had marked the actions of perpetrators. The Commission was still in discussion with various bodies. Legislation was needed to combat hate crimes and the special courts had proved more effective than the conventional legal system.

Members questioned the causes of the violence, but there was no answer. There were perceptions of foreigners taking jobs and presenting business competition that the locals could not match. There was still no clarity as to whether the violence was motivated by xenophobia or was simply crime committed in the battle for resources within communities. The Commission had tabled a number of recommendations but Government agencies needed to be persuaded to adopt these recommendations.

The Department of Justice and Constitutional Development, in co-operation with the Foundation for Human Rights, was ready to launch a three year programme to promote the accessibility of justice for all citizens.  Significant funding had been received from the European Union. A survey to provide baseline statistics was already in its preliminary stages.

Members asked how people would be informed about the Equality Court, presumed that the Foundation for Human Rights had visited the rural areas, and advised it to interact with the National House of Traditional Leaders.

For want of a quorum, Members were unable to approve the Committee's programme. Those present agreed that there were several important bills, including those on traditional courts, superior courts, harassment, and Muslim marriages, which needed Members’ attention.

Meeting report

South AfricaHuman Rights Commission Presentation
Ms Joyce Tlou, Programme Co-ordinator, Human Rights Commission (SAHRC), reported that the SAHRC had investigated the wave of violence against non-nationals in 2008. The three pillars of the investigation were the rule of law, access to justice and impunity. There had been other reports but nothing specific had emerged. The SAHRC wanted to promote and protect human rights for all citizens.

The SAHRC had requested background information from the community. It had requested submissions from the three provinces and five municipalities most affected by the violence. The SAHRC had conducted interviews with members of the South African Police Service (SAPS) and community members in three of the most affected areas. The areas chosen were those which were most accessible. 

The SAHRC reported a number of findings. The first was that there was little institutional memory of previous attacks such as those in 2006 in Masiphumelele. There was a need to keep records of such events. The second finding was that there was no early warning mechanism to monitor xenophobic violence. In fact there was still a pending question as to whether it was a matter of xenophobia or general crime. The SAPS had now established a specialist desk which was working.

The third finding was that security forces had been unable to prevent the spread of attacks. This had led to substantial loss of life and damage to property. The SAHRC recommended that guidelines be developed.  These guidelines had proved to be effective in the current disturbances in Kya Sands where the SAPS and South African National Defence Force (SANDF) had reacted quickly. The fourth finding was that the more marginal and less visible groups of non-nationals were more vulnerable.

The fifth finding was that affected areas tended to share a poor relationship between residents and key officials. Leaders in the areas tended to be indifferent, corrupt or authoritarian. The sixth finding was that informal living conditions made communities more prone to public violence. The seventh finding was that prior campaigns had failed to prevent the violence.

TheSAHRC's eighth finding was that there were weaknesses in intergovernmental coordination and institutional processes hindered responses to the crisis. The ninth finding was that the SAPS were unable to protect property during the wave of violence. Property was destroyed and homes and shops looted which left the survivors destitute. The tenth finding was that the Disaster Management Act had not been implemented fully.  The eleventh and twelfth findings related to inadequacies in the process of processing displaced persons.  The thirteenth finding was that the reintegration of displaced persons had not taken place consistently or sustainably.

The fourteenth finding was that there had been a lack of consistency in the paying of reparations with the Western Cape and Gauteng offering different amounts. There had been some assistance from the United Nations (UN). The fifteenth finding was that there was a poor relationship between the affected communities and the SAPS and wider judicial system. The police were seen as being unresponsive or even corrupt which undermined the public's confidence in them. Residents were unwilling to participate in the court process, even as witnesses.  Some placed unreasonable demands on Government.

The sixteenth finding was that poor administrative outcomes had limited the attainment of justice for victims.  This had led to a high degree of impunity. There had been delays due to case flow management problems.  The SAHRC had noted the success of the special courts set up in the Western Cape.  Once they had become operational they had operated efficiently. However many cases had been withdrawn and there was still no verdict on who had started the violence. The SAHRC had engaged with the Department of Justice and Constitutional Development (DOJCD) and the SAPS. There had been a briefing earlier in the week and attitudes had been positive.

The seventeenth finding was that there had been instances of misconduct by the police and public officials which had not been reported to the Independent Complaints Directorate (ICD) or the Public Protector. The investigation could not find any cases that had been reported through the appropriate channels. The eighteenth finding was that effective remedies were hampered by a lack of capacity within the responsible institutions. The nineteenth finding was that there had been some progress in planning to ward off possible future attacks. The definition of xenophobic crime was still uncertain. The final finding was that the SAHRC struggled to respond to the 2008 attacks on the required scale in terms of its mandate.

The SAHRC had a mandate to monitor the implementation of the recommendations it had made. A reporting template had been developed. The DOJCD would submit a consolidated report. SAHRC was finalising a report for the Western Cape Equality Court. Foreigners living in Worcester and Siyathembahad not been protected and had suffered loss of life, livelihood and property. The SAHRC had also been cited. It had conducted a localised investigation. The report was due to be finalised by 25 July and the investigation had taken a lot of time and effort.

The SAHRC was part of various multi-party forums. The SAHRC had also held discussions with some UN agencies. The call now was for all hands on deck. Ms Tlou said that she hoped that future attacks could be prevented. The SAHRC had made many presentations and was working on a disaster management plan.

A critical issue was the formulation of hate crime legislation. The SAHRC had noted the success of the special courts established for the World Cup and the DOJCD had responded positively on this issue. The Department was amenable to setting up special courts in the short term by dedicating courtrooms and personnel. The establishment of a hot line was an outstanding issue. The SAHRC had recommended that the SAPS should set this up accompanied by wide publicity. Access to justice should be strengthened. The state was primarily responsible for the prevention of attacks against foreigners although the SAHRC was prepared to offer advice.

The Chairperson noted that the report did not identify the cause of the violence.As a result, heasked what the causes were.

Mr S Swart (ACDP) asked what the causes of the violence were. He noted that Masiphumelele was one community where the reintegration process had gone quickly. There had been problems in De Doorns in 2009. The authorities had been woefully unprepared in 2008. He asked if they were prepared now given the abundant rumours of pending violence. There was no record of introspection on the part of the President or the Parliamentary Task Team. He asked what steps were currently in place and if the SAHRC was satisfied.

Mr L Ndabandaba (ANC) said that the violence had been crime baptised as xenophobia. He asked if this was a universal phenomenon. He asked if the approach was sufficiently multi-disciplinary. He asked how broad the phenomenon of xenophobia was.

Mr J Sibanyoni (ANC) asked if there was any outreach strategy. There was a legacy of immigrants from other African countries being ill treated and deported while immigrants from western countries did not suffer the same hardships. South Africans who had been in exile in African countries had never been attacked.

Mr M Gungubele (ANC) said that there was stability in some informal areas. He had been involved in such areas in the past month. There was a relationship between violence and the socio-economic situation in affected areas. It was a struggle for resources. He asked where it would culminate. 

Mr Gungubele asked if there were proactive programmes which could be activated when a threat was detected. Relationships between the members of the community must improve and the SAPS had to be ready. He supported the Chairperson's concern that the underlying causes had to be identified. He asked what the role of Chapter 9 institutions was. The recommendations offered by the SAHRC made sense.  However, it did not seem that the SAHRC was dealing with the situation on a pre-emptive basis. There was no continuous live interaction.

The Chairperson said that South Africans had perceptions that foreigners were taking their jobs. Some immigrants were more successful in business. Criminals took advantage of the hostile feelings and targeted the property of foreigners. It might be that such criminals were hired by failed South African business people.  The SAHRC should look at the laws and the human rights regime.

Mr Lawrence Mushwana, Chairperson, SAHRC, replied that the explanations for the violence had seemed plausible at the time. The SAHRC had concentrated on the sense of impunity which had arisen. There were other reports on the events of 2008.  He agreed that the biggest problem was that the causes had not been identified. Inputs from the UN High Commission for Refugees (UNHCR) and ambassadors had been critical in identifying why foreigners had become targets. The violence tended to stem from service delivery protests.

There were vast areas in Limpopo populated by citizens of Mozambique and Zimbabwe. There had only been isolated spots where violence had occurred. The SAHRC was grappling with the situation. In the case of De Doorns farmers had been accused of exploiting foreign labourers. Each area seemed to have a different answer on the question of the causes.

Officials had been deployed at low levels to keep an ear on the ground. The business competition aspect lay in the low prices that foreign owned spaza shops set. There was not a single cause for the violence.

Mr Mushwana requested Parliament to help the SAHRC. It had limited research capability. The UN had donated $100 000 to be spread over all SAHRC's programmes. The SAHRC was doing what it could.

Mr Mushwana believed that the ultimate question was why foreigners were targeted. There was a strong feeling that there was a hidden hand at play. There was a suspicion that xenophobia was being driven by the media.  He was glad that action was being taken. This showed that Government was serious. The reaction to the events of 2008 had been slow. He asked what had happened to those who had been arrested.

Mr Mushwana said that the threat was the biggest problem. People were living in constant fear. The SAHRC will call a symposium. An undertaking had been made to implement the recommendations but it seemed the institutions involved needed constant reminders. It was frustrating. Members of Parliament needed to have a presence in their constituencies.

Ms M Smuts (DA) said that the Committee had been shrewd and sensible to push through legislation on human trafficking before the World Cup as there had been a tangible threat. The same posture was now appropriate. The violence must be a factor of resentment. The people of South Africa had had no problem with the visitors from all over the world who had streamed in for the World Cup. She asked why only certain nationalities were being targeted. Human behaviour was not always logical. There was often an irrational response to strangers.

Ms Smuts noted that recommendations had been made but the response had been non-existent or late.  The SAHRC had to realise that it could not order Government to do anything. For example, the SAHRC had given the City of Cape Town what the SAHRC considered to be a binding instruction in a recent issue regarding the provision of toilets. The authority of the SAHRC rested on its moral persuasion. It had to persuade Government departments to do what was right. She wished it luck in this endeavour.

Ms Smuts recalled the situation in Cape Town in 2008. The City had been forced to bear all the costs of housing foreign refugees although this was actually a provincial responsibility. A different party had been in power in the Western Cape at the time. She had written to the Premier and had received a “limp-wristed” response. Some of the refugees had made unrealistic demands such as a ship to Canada.

Mr Gungubele said that the recommendations had been tabled. This was where the process must start. The recommendations should be seen as an ongoing interaction rather than reaction to a specific event. The Committee should write to the respondents. Researching the causes of violence was important no matter what the cost. He felt that the finding would be that there was a struggle for resources and for survival.  Conditions in urban and rural communities were very different. The media sometimes identified foreigners as rivals for resources.

Mr Ndabandaba said that African countries had hosted South African exiles for years. They were not being repaid for the hospitality offered in the days of the struggle.

Mr Mushwana replied that he would like to engage in debate on the issues raised by the DA but this meeting was not the appropriate place. The SAHRC had been assured of the commitment of Government institutions and would continue to engage with them. There was a need for engagement. There was no need for foreigners to have to flee to their home countries.

Ms N Michael (DA) said that political leaders had met in Gauteng the previous week to pledge themselves to ending xenophobic violence. Most parties had been represented but the ANC had not been present.

The Chairperson said that there were many resources, such as the universities, that could be tapped to assist SAHRC in their research. The Committee would motivate for more financial assistance. It was an important matter and warranted a debate in the National Assembly. He thanked and excused the SAHRC delegation.

Department of Justice and Constitutional Development Presentation
Mr Simon Jiyane, Deputy Director-General, Court Services, DOJCD said that the DOJCD faced several challenges. South Africa and the European Union (EU) had agreed on a development agenda. Civil society had a role to play in Government issues. The Access to Justice and Promotion of Constitutional Rights Programme was the first of its kind. Government had been committed to this issue since 1996.

Mr Jiyane said that the programme would last three years and was scheduled to have started in 2007. This had not happened. Given the nature of the work of the Department, a greater role needed to be played by other stakeholders. The DOJCD had formulated a policy paper on how civil society could get involved. A new funding mechanism had been set up by donors.  Any donor funding had to be in accordance with national gaols.  Donor funding went directly to Government entities. There was a different methodology of management. Authority had been delegated to the Foundation for Human Rights (FHR).

The EU had donated € (Euros) 25 million over a three year period. Of this, €20 million would be implemented by the FHR in partnership with the DOJCD while the remaining €5 million would be directly managed by the EU. Plans for the programme were completed only in early 2009. The first tranche of payment was expected early in 2010.

The aims of the programme were to improve access to justice, to raise awareness of rights and to strengthen participatory democracy. There were several thematic principles that underpinned the programme. These included the impact that human rights could have on poverty and inequality, the importance of equality legislation, the involvement of civil society, addressing civil, political and socio-economic rights, addressing racism, discrimination and xenophobia, the advancement of equality for women, and a rights base approach.

The programme would be based on results. There were three key performance areas. These were improved access to justice, building greater awareness and knowledge of rights and enhanced participatory democracy. Chapter 9 institutions were key to the achievement of the key performance indicators (KPIs). An important consideration was how to engage on the political issues. It was necessary to move towards an integrated platform. Space was needed for reporting on internal obligations.  The Department would be dependent on advice. Mr Jiyane promised that the DOJCD would give the Committee regular feedback.

Mr Andile Mngixita, Policy Adviser, Foundation for Human Rights listed the KPIs for each key performance area.  In terms of access to justice, the target of new community advice offices was 45 over the three years of the programme. Fifty service level agreements would be signed. The Equality Act would be promoted. 7 600 new cases would be diverted to alternative disputes resolution.  A need to develop constitutional rights awareness had been identified. Forums had been established to enhance participatory democracy. The programme would assist civil service organisations in preparing themselves more thoroughly for meetings with the Committee.

Mr H Vally, Strategy Director, FHR, said that the programme would be assessed on equality of opportunity, transparency and fairness.  He listed the steps in the grant making cycle from the launch of calls for proposals to the first disbursement being issued.

Mr D Byrne, Development Manager, FHR, described the monitoring and evaluation procedure that would be followed. Targets would be identified and financial penalties would be in place for non-performance. There was a comprehensive strategy to assess the final results. The focus would be on vulnerable groups. Some groups could be surveyed by qualitative methods and others by quantitative methods. A survey would produce the hard statistical data to develop a baseline. It would cover 4 000 respondents in 22 communities.  Some specialist groups had been identified while others would be cross-cutting. The process had already started and a service provider had been appointed.

Mr Ndabandaba said that there was an overlap between the programme and the work being done by other organisations. He asked how people would be informed about the Equality Court.

Ms Smuts said that the FHR was following a sensible approach. There was clarity.

AdvS Holomisa (ANC) presumed that the FHR had visited the rural areas. He asked if it had had any interaction with traditional leaders. He advised the Foundation to interact with the House of Traditional Leaders.

Mr Vally replied that the FHR had worked with the SAHRC and other Chapter 9 entities. The SAHRC had a separate budget vote in Parliament. Any non-Government organisation could apply to the FHR for funding and their request would be considered. Many rural organisations had received FHR funding. The Foundation had written to the House of Traditional Leaders. It was working with the traditional leaders particularly in respect of restorative justice.

Mr Jiyane added that the Department did focus on the rural areas. They had invited many stakeholders to make submissions but had not received one from the traditional leaders. This was why the Department had written to the traditions leaders. Once the legislation had been finalised there would be better synergy with the traditional courts. The Department would focus on building capacity.

The Chairperson thanked and excused the DOJCD and FHR delegations.

Committee business
The Chairperson noted that the meeting did not have a quorum and therefore could not adopt the programme.

Ms Smuts said that she was looking forward to the consideration of the Superior Court and Constitution Nineteenth Amendment Bills but these were not reflected on the draft programme. When will the Committee deal with them? The Protection from Harassment Bill was on the Programme but the Traditional Courts Bill had been excluded.  She asked for clarity on the Committee’s priorities.

Mr Vhonani Ramaano, Committee Secretary, indicated that the Bills referred to by Ms Smuts had not yet been tabled in Parliament. The Committee Support staff felt that it was important to consider bills that were before the Committee while waiting for others to be tabled. The Committee could amend its programme should any priority bills be tabled in Parliament.

Ms Smuts indicated that the Minister had publicly indicated that the Superior Courts and Constitution Nineteenth Amendment Bills would be in Parliament by the end of this month. These were major bills that the Committee would be dealing with. It was important to start work on them because they would achieve great results for the legal system. Similarly, it was important to start working on Tradition Courts Bill since it would form part of the legal system. The Protection from Harassment Bill and other bills were important and should be dealt with at some point.

Mr Gungubele said that the Committee needed to engage with the DOJCD for clarity.

Ms Michael said that a meeting was planned for 28 July 2010. The Committee would meet with Adv Mpumlwana. The National Assembly would still not be in [plenary] session [until 10 August 2010]. She did not see the cost-effectiveness of Members flying to Cape Town to attend a short meeting.

The Committee Secretary recalled that during the debate on the recommendation of candidate to serve as Commissioners for the SAHRC, Adv L Adams (COPE) made certain statements about the suitability of Adv. Mpumlwana to serve as a Commissioner. On 12 November 2009 the National Assembly agreed to amend its resolution of 22 September 2009, by omitting the nomination of Adv Mpumlwana pending its reconsideration; and referred the matter of the nomination to the Portfolio Committee onJustice and Constitutional Development for further consideration and report.

The Chairperson hoped the Advocate would attend. The Secretary had communicated with him.

Ms Michael noted that the Committee had elected the Human Rights Commissioners.

Mr Gungubele said that he wanted to see the Committee's programme adopted. He proposed that it be accepted provisionally. 

Adv Holomisa said that Members should be informed on the readiness of the bills.

The Chairperson said that he should write to the Department. He noted the presence of the Minister's Parliamentary representative.

Mr Gungubele proposed that the final list of legislation could be discussed at the meeting on 28 July 2010.

The meeting was adjourned.

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