South African Human Rights Commission: Report on 1st quarter 2010/2011

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Justice and Correctional Services

17 August 2010
Chairperson: Mr M Gungubele (ANC)
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Meeting Summary

The South African Human Rights Commission (SAHRC) briefed the Committee on its performance for the first quarter of 2010/11. It had given legal advice to 1 368 people and had finalised 562 complaints. The issue of xenophobia, which had been a serious concern country wide, was receiving close attention, and SAHRC had engaged Cabinet on the matter. In the most prominent case to date this quarter, The Makhaza Open Toilet case, the SAHRC believed that it had fulfilled its mandate of acting without fear or favour. The majority of cases that were investigated by the Commission were in the Western Cape and Gauteng. Another highlight of this quarter was the establishment of a United Nations funded Anti-Xenophobia project. The SAHRC had experienced key challenges concerning the Research, Documentation and Policy Analysis programme, but was attending to the issue. SAHRC had participated in two important international meetings during the last quarter. The meetings focused on international and regional cooperation between the human rights mechanisms and the role of National Human Rights Institutions. The Promotion of Access to Information Act, which fell under the work of the SAHRC, was being integrated into the broader work of the Commission’s thematic areas, including public hearings and socio-economic rights. Vacancies had continued to plague the Commission, and there had been a number of resignations, but a new Chief Executive Officer and Chief Financial Officer had been appointed. SAHRC had also prioritised its planning processes in order to achieve a positive evaluation from the Auditor-General. The 2009/2010 performance had been evaluated and interventions and corrective measures were developed to address performance deficiencies, including making much-needed investments into upgrading the Information Technology and its governance. Of the R73 million allocation for the year, R17.663 million had been spent in the first quarter, which was over-spending to the tune of R260 000. Management was trying to implement tight budgetary controls in order to ensure that spending per month equalled the amount allocated for that month.

The Committee engaged with the Commission on the Promotion of Access to Information Act and how the functions of this legislation would be impacted upon by the Protection of Personal Information Bill. Members requested more information on the criteria used for cases taken on, and those referred to other bodies, and asked why the SAHRC was providing legal opinions. Some Committee Members expressed concern that the report in the Makhasa Toilets case appeared to be biased, and were concerned that the Commission was engaging in politics, whilst others believed that socio-economic rights were essentially political issues. Members were concerned that there was no information on case backlogs or the number of vacancies, asked why there had been so many resignations, what was being done to appoint new staff and how long this took. The Committee questioned why so many cases emanated from Gauteng and the Western Cape and what the SAHRC was doing to increase public awareness in remoter areas. The Acting Chairperson suggested that in future the Committee should concentrate more strictly on matters arising directly from the quarterly report, although other documentation could be attached for information.

Meeting report

South African Human rights Commission (SAHRC): Performance Report: First quarter of 2010/11
Adv Lawrence Mushwana, Chairperson, South African Human Rights Commission, noted that the South African Human Rights Commission (SAHRC or the Commission) had received a clean audit in the previous financial year. The SAHRC had had fruitful meetings with Ministers from various departments, as well as the Cabinet Cluster, where issues around xenophobia were being thoroughly discussed. The SAHRC requested the Committee’s assistance in the appointment of a fifth full time Commissioner. It was hoped that the Human Rights Act Amendment Bill would shortly be tabled in Parliament.

Mr Kayum Ahmed, Chief Executive Officer, South African Human Rights Commission, tabled the First Quarter 2010/11 Strategic Performance Report, and noted that his presentation would focus on sections 2 and 3 of the report. The SAHRC had provided legal advice to 1 368 person and had finalised 562 complaints. 1 811 cases were referred on or were rejected by the Commission. The cases were usually in depth and complex. The subject matter of the cases concerned equality, just administrative action and detained persons. All the complaints statistics were in Annexure B of the report. The most prominent case of this term was The Makhaza Open Toilet case, and he noted that full details were in the report. The SAHRC was looking into the appeal against the decision on this case. He stressed that the SAHRC used its mandate effectively, and acted without fear or favour. The majority of cases investigated by the Commission were in Gauteng and the Western Cape.

The education and training programme had four key integrated areas. The first was aimed at creating synergy between the activities and outputs of the three education and training programmes and sub-programmes. Secondly, SAHRC aimed to promote inter-programmatic collaboration, especially around the Commission’s strategic focus areas. Thirdly, SAHRC tried to engage with stakeholders in a mutually beneficial way. Finally, it tried to move from being an implementer to enabler, where the focus shifted to holding the authorised people accountable for the best practice infusion of human rights education. One of the key highlights of this quarter was the Anti Discrimination and Xenophobia project. This project was funded by the United Nations (UN).

The Commission had experienced key challenges concerning the Research, Documentation and Policy Analysis programme. The issue was being attended to. The Economic and Social Rights report was edited and finalised for dissemination. Unfortunately the Human Rights Development Report would be ready for publishing only in the 2011/2012 financial year. The Parliamentary and International Affairs Programme was responsible for engaging in Parliamentary processes and promoting international and regional human rights instruments.

The SAHRC had participated in two important international meetings during the last quarter. The meetings focused on international and regional cooperation between the human rights mechanisms and the role of National Human Rights Institutions. The Promotion of Access to Information Act (PAIA) work had been integrated into the broader work of the Commission’s thematic areas including public hearings and socio-economic rights. Currently the sub-programme also dealt with all PAIA based referrals from provincial offices and the legal services programme.

There had been a number of resignations during the past financial year. The appointment of the current Chief Executive Officer and Chief Financial Officer were very significant. The succession plan and competency plan for all Deputy Directors had been finalised. The staff retention strategy was also being improved.

Mr Ahmed noted that the culture of the Commission was not necessarily suited to fulfilling the mandate of the Commission, and this was something that would take quite a while to change. A key focus area this year would be that the strategic review and planning process would allow the necessary consultation for programmes to work in a more integrated fashion, rather than drifting into silos. The Commission had prioritised its planning processes in order to achieve a positive evaluation from the Auditor-General (AG). The 2009/10 performance had been evaluated and interventions and corrective measures were developed to address performance deficiencies.

Mr Ahmed said that the Commission’s risk management processes continued to be a challenge. The AG had raised queries on the Commission’s risk management processes in two consecutive management letters. A risk response plan had been developed and incorporated into the overall risk management plan of the Commission. He described the Information Technology (IT) situation as “dreadful”, as the Commission had previously under-invested in the necessary infrastructure. To address this situation there had now been a prioritisation of IT infrastructure and IT governance. A file plan was implemented during the last quarter.

Mr David Molapu, Chief Financial Officer, South African Human Rights Commission, said that there had been an allocation of R73 million funding for the 2010/11 year. R17.663 million had been utilised so far, meaning that there had been over-expenditure of R260 000 in the first quarter. Management was trying to implement tight budgetary controls in order to ensure that spending in each month equaled the allocation for that month.

Mr Molapu said that it would assist if the numbers of Commissioners were increased, so that the SAHRC could fulfill its mandate. The SAHRC had requested an additional R2.3 million from National Treasury. R1.5 million would be need for payment towards lease agreements. R1.7 million would be needed for more permanent staff across various provinces. The Parliamentary Liaison Office was involved in additional activities in order for it to fulfill its mandate, and R630 000 additional funding would be required to cover this cost. There were only five out of the initial 22 issues that had been raised by the AG during the 2008/09 audit findings that still remained to be dealt with.

Ms Pregs Govender, Commissioner, South African Human Rights Commission, added that she would like to discuss a few additional matters that had arisen from the last meeting with the Committee. The first was the number of Commissioners and how this affected the work of the Committee. The second matter related to the budget and reports of the Commission. SAHRC had strategically focused its resources, since it had a very limited budget. It has adopted a broader approach towards its cases. The SAHRC would like to engage with the Committee on how Parliament could assist with matters raised in SAHRC reports, and what the Committee’s views were on trade, finance and security rights, so that human rights matters were integrated across the board. Another matter that would have to be discussed was how the Protection of Personal Information Bill (PPI) proposed to remove the entire PAIA mandate away from the Commission.

Discussion
Ms M Smuts (DA) said that the PPI Bill in its current form did not take away PAIA functions from the Commission, but this was something that the sub-Committee was considering.

Ms Judith Cohen, Head: Parliamentary Programme, South African Human Rights Commission, said that perhaps it was time that PAIA was revised, and the PPI Bill provided that opportunity. The Commission had never been adequately resourced to deal with the PAIA mandate and this was an issue that had been raised numerous times in the past. She said that the SAHRC and Committee needed to schedule a whole session to discuss PAIA and the new PPI Bill.

The Acting Chairperson asked for clarity on the documents, and commented that a substantial number had been tabled for the purpose of a singular quarterly review.

Ms Janet Love, Commissioner, South African Human Rights Commission, explained that Annexure A was a progress report on how money had been utilised against the strategic plan, Annexure B contained information on the Commission’s legal services programme. Annexure C related to the Audit reports, on which the Committee had asked the SAHRC for comment. Annexure D was a written response to questions that the Committee had raised during the last meeting in May 2010.

Ms N Michael (DA) said that she thought the documents were concise and separated each relevant issue rather well.

Mr S Swart (ACDP) said that he agreed with Ms Michael. He said that it would be an improvement to meet with the SAHRC quarterly, as opposed to only once a year. He asked what proposals the SAHRC wished to make as to how it should engage with the Committee on the developments around the PPI Bill.

Mr J van der Merwe (IFP) asked what role other institutions like the Public Protector, municipalities or National departments were supposed to play if the SAHRC began to take on every single matter, and asked why SAHRC seemed to take the lead all the time. He asked how the SAHRC planned to divert certain matters that were incorrectly sent to it. He also questioned why the SAHRC was providing legal advice, rather than requiring individuals to make use of attorneys or Legal Aid South Africa (LASA).

Ms Love replied that the reason why the SAHRC was the first point of call was that it worked closely with communities at grass roots level. The Commission did try to refer on cases, as rapidly as possible, to relevant institutions. Some of the referrals did go to LASA.

Mr Ahmed also added that often the SAHRC was a last resort for individuals after they had exhausted all other options.

Ms Smuts said that she was impressed with the SAHRC’s submission during the public hearings on the Protection of Information Bill. She asked if SAHRC had any insight into the Minimum Classification System adopted by Cabinet that resulted in unnecessary and over classification. Ms Smuts felt, however, that the issue of the Makhaza Toilets was not handled “without fear or favour” by the SAHRC. She suggested that the report was somewhat biased, and that it was not acceptable to say that the City alleged that the community had been informed that they would have to cover the costs of the toilets installed. The deal was between the City of Cape Town and the residents, and was better than the national standards.

Ms Love said that the Commission welcomed the comments by Ms Smuts in regard to legislation, especially on the Protection of Information Bill. She noted that socio-economic rights could become easily politicised, but it had never been the intention of any Commissioner to be partisan. Recommendations of the SAHRC were not targeted at specific individuals and were made after serious consideration by the Commission.  

The Acting Chairperson interrupted and said that he had no problems with issues being discussed, but Members should bear in mind that the main purpose of this meeting was to discuss the quarterly progress report.

Ms Smuts accepted what the Acting Chairperson had said but responded that this Committee was one of the few bodies that could hold the SAHRC to account. The SAHRC should not play politics, for fear of losing its credibility. She asked whether it was correct that the Vice Chairperson of the Commission had at first ordered the enclosure of the toilet facilities with brick walls, and, if so, then was that person aware that the SAHRC could not in fact make binding orders, but only give recommendations.

Commissioner Mushwana agreed that there was no way that the SAHRC’s recommendations could, in terms of the Constitution, be regarded as a binding decision. Certain compliance imperatives were stipulated in the Constitution, and were aimed at all government departments. A recommendation by the SAHRC for something to be done was not binding, but the Constitutional imperatives were. The SAHRC was not involved in politics, but in ensuring the dignity of all persons.

Ms Govender said that it would be useful to quote the recommendation, in order to clarify the issue. This recommendation read: “It was recommended that the Respondent should re-install the 51 toilets, and adequately enclose them, with immediate effect. The Commissioner recommends that the Respondent’s projects that have currently been placed on hold should recommence and be completed in a manner that did not impair the right to dignity. The National Departments of Human Settlements and Water Affairs in all provinces should ensure the eradication of the bucket system and communal toilets. The Commission supports the one toilet to one household ratio. The Respondent violated the rights of the residents by not enclosing the toilets.” It had been alleged that the SAHRC had found against this municipality because it was a DA-led municipality. However, she noted that this was the SAHRC’s first, and, so far, only finding against the DA, and the recommendation was not limited to the municipality, but also the National government.

Mr J Jeffery (ANC) said that socio-economic rights were of a political nature. Access to water was a right that SAHRC must investigate. The process followed in the Makhaza Toilets case could be wrong, and could be looked at, but Ms Smuts should not say that certain issues must not be touched upon.

Mr Jeffery said that the SAHRC’s report was quite detailed on certain issues but very vague on others. There was no information provided on the number of case backlogs for the Commission. It would be interesting to know, from a service delivery point of view, how long it took for each case to be resolved.

Mr Ahmed said that there were 1 200 case backlogs.

Ms Love said that the issue of backlogs was important. The statistics would be provided in the documents provided to the Committee when it next reported.


Mr Jeffery enquired how the appeals process worked.

Mr Jeffery also felt that the SAHRC should, logically, have under-spent instead of overspending, since it had vacancies. He also asked for more information on the vacancies.

Mr Ahmed responded that there were currently 11 vacancies. The positions ranged from Deputy Director to Personal Assistant to the Chief Executive Officer. He noted that it took around six to eight months to fill a position, and this was a major concern.

Ms Love noted that the budgeting for human resource personnel had not changed over time, and was based on an old model, which resulted in a smaller budget for staff than was really needed.

Mr Molapu added that when the budget was compiled, a miscalculation had been made of the time that it would take to fill a particular vacancy. There was also a misalignment between what National Treasury had allocated and what was actually spent. Measures had been put in place to ensure that what was allocated would match the money spent.

Mr S Holomisa (ANC) asked if it was part of the Committee’s work to assess the conditions of employment for Commissioners.

Adv Malatjie confirmed that the SAHRC did not expect the Committee to deal in any way with the conditions of employment for Commissioners. There were no conditions of service for Commissioners at all.

Mr Holomisa enquired why most cases emanated from Gauteng and the Western Cape, and how the Commission could ensure an even spread.

Mr G Ndabandaba (ANC) asked for more clarity on why Gauteng and the Western Cape had the highest number of cases.

Ms Love replied that the reason why the other provinces lagged behind would perhaps relate to difficulty of access, particularly for persons who lived in more remote areas. The Commission tried to work together with local authorities to access communities through the education and training programmes.

Mr Ahmed added that these two provinces probably had greater access to information but the SAHRC was trying very hard to reach rural communities. The population figures per province also reflected the number of complaints received.

Mr Holomisa asked the SAHRC to elaborate further on the Skierlek Project that had been mentioned in the presentation.

Mr Ahmed said that the Skierlek project was an important one, and it arose out of the murders that took place there, as well as the still-prevalent racial tension in the area.

Mr Holomisa asked why there were so many resignations at senior level.

Ms Love responded that the SAHRC appointments required very rare skills, and its personnel were frequently poached away.

The Acting Chairperson said that in future only one document, dealing specifically with the quarterly report, should be presented to the Committee. All other issues could be dealt with at other sessions, without impacting on the quarterly progress report.

Mr Swart asked if the Acting Chairperson was saying that the SAHRC should not report as they had done already.

Mr van der Merwe disagreed with the Chairperson, and stated that when the Committee was reviewing quarterly performance there should be as many documents as possible made available, so that the Committee received a detailed understanding of what was happening.

Ms Love suggested that in a future a cover sheet could be provided that would explain what each document was about.

Ms Lindiwe Mokate, Commissioner, South African Human Rights Commission, said that currently the SAHRC did not have a dedicated commissioner to deal with children’s matters. Even if there were ten Commissioners appointed, as stated in the Human Rights Act, there were new areas of work that now made it appropriate that there should be more commissioners than the Act currently stated. The workload was too heavy for the four full-time and two part-time Commissioners that were currently serving at the SAHRC. She reiterated that the SAHRC would like some assistance from the Committee in this matter.

The Acting Chairperson stated that in future the documents that were relevant to the quarterly reports should be at the front of the pack, whilst other document could be attached to the back. It was not wise to use the Committee as a forum to express disagreement with the decisions of the SAHRC and force it to justify decisions, as this might create a dangerous precedent.

The meeting was adjourned.



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