South African Human Rights Commission Annual Report 2010/2011

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Justice and Correctional Services

10 October 2011
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The South African Human Rights Commission’s presented its 2010/2011 annual report to the Committee. The Commission presented to the Committee that it had managed to achieve 67% of its strategic objectives and this was an increase of about 15% from 2009/2010. The reason in the increase in performance was due to the re-thinking process where the introduction of new Commissioners brought in a critical reflection on the work of the South African Human Rights Commission. The critical reflection has led to a strategic re-alignment process with the Commissioners playing a leading role. The South African Human Rights Commission acknowledged that the targets were far from perfect and that it had to reach 100% by 2014/15. The South African Human Rights Commission received a clean audit with no matters of emphasise however the Auditor General has raised the issue that 30% of the South African Human Rights Commission targets were not time bound. There were current administrative challenges that the Commission was faced with, this included the restructuring process which comprised the re-alignment of human and capital resources however it should be noted that the process should be complete by March 2012. Financial constraints hampered the South African Human Rights Commission’s ability to perform optimally. Some of the substantive challenges were that the compliance driven approach by government has resulted in a neglect and substantive understanding and analysis of the human rights issues. The the South African Human Rights Commission has continued to encounter failure to comply with requests for information by government t departments. Only three departments have responded to the Commission’s requests or Section 184(3) reports.

In terms of the human rights advocacy statistics the South African Human Rights Commission promoted 497 community outreach interventions, 157 workshops, 160 collaborative interventions and there were more than 1000 officials trained on Promotion of Access to Information Act. The South African Human Rights Commission’s advocacy projects included social cohesion interventions in Skierlik and the North West Province. There was a reconciliation process between workers and former students of the University of the Witwatersrand. In terms of the legal services statistics the Commission has handled 5626 complaints. The top five complaints were: equality; human dignity; just administrative action; arrested, detained and accused persons and labour. 24 matters were litigated in the Equality Courts. The majority of complainants were African followed by Coloureds and Indians. It should be noted that the Commission did not have a wide reach and could its offices were not accessible particularly for people in the rural areas. People relied heavily on post, fax and emails to reach the Commission. There were two major unresolved financial matters. The first was a certain amount of money that was owed to the Department of Public Works. The reason for the money owed was that the Department of Public Works had failed to invoice the Commission appropriately for rented offices in the provinces. The second matter was the Civil Society Advocacy project which was a European Union funded project. The South African Human Rights Commission has come to an agreement with the Institute for Democracy in South Africa over the amount owed to them.

The Committee inquired as to how the Commission was dealing with the refusal of applications requesting information via the Promotion of Access to Information Act. The Committee felt that it was unacceptable that government departments continued to ignore requests for information.  The Committee questioned the contingency liability issues which were: the claim of R2.4 million from Institute for Democracy in South Africa, the claim from the European Union and the R3.3 million for unaccounted expenditure, R500 000 for litigation in the High Court and the disputed invoice with Department of Public Works which was from 2005/06. A Member of the Committee felt that the Commission was not treating the process with respect as it had not provided a comprehensive presentation on its need for additional funding which was part of the budget review process which was done together with annual reports at this time in Parliament.

Meeting report

South African Human Rights Commission Annual Report Presentation 2010/2011
Ms Pregs Govender, Deputy Commissioner for the South African Human Rights Commission (SAHRC), said that the organisation was still faced with the challenges of poverty and inequality. These issues were exacerbated in South Africa (SA) because of the global economic challenge. The   Commission had five full time Commissioners at the moment. The Chairperson of the Commission dealt with issues around asylum seekers, migration, and counter-acting xenophobia. The Deputy Commissioner dealt with access to information, basic services and United Nations (U.N.) treaty bodies. Commissioner Mokate dealt with children and basic education matters; Commissioner Malachi dealt with disabilities; Commissioner Baai dealt with housing, food and healthcare whilst Commissioner Love who was a part time Commissioner dealt with the environment, natural resources and rural development whilst Commissioner Titus was responsible for human rights, law enforcement and torture. The SAHRC has held to account t all of national government on the issue of the open toilets in its effort to ensure the right to sanitation. The Commission has also been informed that mentally ill state patients were being held in prisons e.g. Kimberley prison. The Commission was also beginning to investigate the matter of acid mine drainage and the impact of mining on the environment. The SAHRC engaged with government on the resolutions it had initially tabled regarding sexual orientation and gender identity. The Commission looked forward to having this report as well as its previous reports taken forward by the Committee.

Mr Kayum Ahmed, Chief Executive Officer (CEO) of the SAHRC, informed the Committee that the Commission had managed to achieve 67% of its strategic objectives and this was an increase of about 15% from 2009/2010. The reason in the increase in performance was due to the Commissions re-thinking process where the introduction of new Commissioners brought in a critical reflection on the work of the SAHRC. The critical reflection has led to a strategic re-alignment process with the Commissioners playing a leading role. The SAHRC acknowledged that the targets were far from perfect and that it had to reach 100% by 2014/15. The SAHRC received a clean audit with no matters of emphasise however the Auditor General (AG) has raised the issue that 30% of the SAHRC’s targets were not time bound. There were current administrative challenges that the Commission was faced with, this included the restructuring process which comprised the re-alignment of human and capital resources however it should be noted that the process should be complete by March 2012. Financial constraints hampered the Commission’s ability to perform optimally. Some of the substantive challenges were that the compliance driven approach by government has resulted in a neglect and substantive understanding and analysis of the human rights issues. The Seventh Economic and Social Rights report indicated that there was a conceptual misunderstanding of economic and social rights by government. The SAHRC has continued to encounter failure to comply with requests for information by government t departments. Only three departments have responded to the SAHRC’s requests or Section 184(3) reports.

In terms of the human rights advocacy statistics the SAHRC promoted 497 community outreach interventions, 157 workshops, 160 collaborative interventions and there were more than 1000 officials trained on Promotion of Access to Information Act (PAIA). The SAHRC’s advocacy projects included social cohesion interventions in Skierlik and the North West Province. There was a reconciliation process between workers and former students of the University of the Witwatersrand. In terms of the legal services statistics the Commission has handled 5626 complaints. The top five complaints were: equality; human dignity; just administrative action; arrested, detained and accused persons and labour. 24 matters were litigated in the Equality Courts. Legal services projects were the revision of the complaints handling manual, training for legal personnel and collaborations with various law firms. The number of resolved cases has been a disappointing 205 for the 2010/2011 financial year. This was a result of a lack of capacity as well as training and skill in the provincial offices, this was however being addressed. The majority of complainants were English speaking which was followed by Afrikaans and Xhosa. The majority of complainants were African followed by Coloureds and Indians. It should be noted that the Commission did not have a wide reach and could its offices were not accessible particularly for people in the rural areas. People relied heavily on post, fax and emails to reach the Commission. The SAHRC was taking these matters very seriously and would ensure that there were greater outreach interventions.

For monitoring human rights the Commission had produced the Seventh Economic and Social Rights report and the Equality in Child Rights report. Monitoring projects included studies in poverty and inequality; equality courts and Section 184(3) protocols were revised. The Commissioners Programme included the sexual orientation matter involving the Department of International Relations and Cooperation (DIRCO) and there was an engagement with national and provincial government on the open toilet cases. The Commission remained within the baseline allocation for the period 2010/11 despite reporting a deficit of R1.68 million, this item was as a result of the disclosure of contingent liabilities. There were two major unresolved financial matters. The first was a certain amount of money that was owed to the Department of Public Works (DPW). The reason for the money owed to DPW was that they had failed to invoice the Commission appropriately for rented offices in the provinces. The second matter was the Civil Society Advocacy project which was a European Union (EU) funded project. The SAHRC has come to an agreement with the Institute for Democracy in South Africa (IDASA) over the amount owed to them. The overall financial performance indicated that personnel expenditure had increased from R46.8 million to R50.3 million. The administrative costs have decreased as a result of the shift of money for administrative work to core functions. The AG had raised the issue that there were a few material misstatements in the financial statements, R291 000 was for irregular expenditure (no tax clearance certificate provided by supplier).

Discussion
Ms D Schäfer (DA) asked what sort of engagements the SAHRC has had with the new Office the on Institutions Supporting Democracy (OISD) in Parliament. How far would the extra R4 million take the SAHRC for purposes of Information Technology (IT) upgrade?  Could there be more detail on the contingent liabilities and the claims against the SAHRC. What was the SAHRC’s strategy in dealing with non-compliant departments for purposes of PAIA requests? How has the SAHRC dealt with Cacadu municipality where they refused a PAIA request on the basis that they did not deal with the public, refusals and non-compliance with PAIA was unacceptable? How has the restructuring affected the staff and what steps were in place to mitigate this?

Mr J Jeffery (ANC) said that he was happy with the SAHRC however the vacancy rate was up again, why? It would be useful to see the attendance of meetings for commissioners. Could there be more detail on the contingent liabilities which included the claim of R2.4 million from IDASA, the claim from the EU and the R3.3 million for unaccounted expenditure, R500 000 for litigation in the High Court and the disputed invoice with DPW which was from 2005/06. The table on page 48 of the annual report shows that there was an alarming rate of non-compliance with treaties, what was the SAHRC doing about this? How was the SAHRC using Parliament, for example if there was a problem with fulfilling international obligations why was Parliament not informed or its assistance required? What was the SAHRC’s analysis on the Magistrate’s Courts not being used to deal with PAIA disputes? Why were the penalty provisions for PAIA refusals not being used? The annual report was part of the budget review process, why has this not been done and would it be the case then that the SAHRC was financially fine?

Mr S Swart (ACDP) asked if the SAHRC could comment on the material misstatements that were mentioned during the presentation. When did the SAHRC expect to complete the inquiry into the 181 babies that died in Eastern Cape (EC) hospitals? Was there an explanation for the high number of cases in the Western Cape (WC)? How would the SAHRC address the issue of the conceptual misunderstanding of economic and social rights by government? Could the SAHRC comment on the use of interdicts to enforce socio-economic rights. Were the PAIA refusals and resultant culture of secrecy something of a concern for the Commission, has the Commission had an opportunity to look at the latest draft of the Protection of State Information Bill and were there further comments from the SAHRC?

Ms D Smuts (DA) agreed that there was a conceptual misunderstanding of socio-economic rights by government. How did the SAHRC plan to deal with this? What did the dignity complaints consist of and how effective were the equality courts? Did the Commission appoint a risk management officer?

Mr Ahmed replied that the Commission had attended a workshop that was hosted by OISD in Cape Town. At the workshop the Commission was critical of the OISD for not implementing its recommendations which were made a year ago. OISD then visited the offices of the SAHRC to engage further on its concerns. OISD provided god reasons for why they were unable to operate effectively.
Ms Lindiwe Mokate, Commissioner for the SAHRC, added that the SAHRC had concerns that it had raised in the meeting with OISD. Some of the concerns related to the re-tabling of the Kader Asmal report which came out in 2007. Some of the issues raised in the report included the revision of the SAHRC Act as well as the conditions of service for Commissioners; these issues that affected the SAHRC could be dealt with outside of the re-tabling of the report in Parliament.

Mr Ahmed informed Members that there was never enough money for IT but the SAHRC had transferred 8% of its savings towards IT operations. A number of computers were purchased for the provincial offices.  The SAHRC had its in-house IT experts and also outsourced some of the services. The contingent liabilities were legacy issues that were inherited by the current Commission. The SAHRC had to pay the difference between the old and new lease amounts which were handled and negotiated by DPW. This caused complications. The SAHRC had written several letters to the Deputy Director General (DDG) from DPW that was responsible for this and there was no response. The DPW CFO was also approached and it was hoped that this matter would be resolved soon.  The money was there and it was just the invoice that was outstanding. The IDASA issue was that a few years ago the SAHRC, Public Protector (PP) and Commission on Gender Equality (CGE) received donor funding from the EU which was transferred into a bank account run by an independent unit. After IDASA had completed work on the project they had to be paid R3.6 million divided by the three institutions from the EU money. The EU raised issues with the way the agreements were signed as the set deadline was missed by about a day. The EU had very strict policies and because of this they had refused to pay IDASA. The three institutions had met together with the Deputy Ministers of Finance and Justice on this issue and the Chairperson of the Commission had met with a number of ambassadors from the EU. The matter was now about to be settled. The SAHRC had the money available to pay IDASA its portion on 30 October 2011.The lack of compliance with PAIA was an important matter. The SAHRC had a limited ability to enforce it recommendations hence its reporting these matters to Parliament annually. The SAHRC would rely on Parliament to assist it and enforce the recommendations. Perhaps the SAHRC has not highlighted specific instances where Parliament could engage with a particular Department. The SAHRC including the Chairperson has written to; and engaged with various ministers such as the Minister of Justice, the Presidency and the Speaker on the non-ratification of treaties. More information would be provided on the Cacadu matter. The SAHRC has had extensive consultations in order to mitigate the effects of restructuring. The SAHRC has also provided psycho-social and financial assistance to staff members.

Commissioner Mokate said that the contingency fund issues were not budget for and would negatively affect the work of the Commission. The SAHRC had taken the initiative to publish its own reports based on its own research on the socio-economic rights issue.

Mr Gladstone Baai, Commissioner for the SAHRC said that it was true that there had been a lot of deaths in hospitals across the country such as the Nelson Mandela hospital where 181 babies were lost. Some of the causes for the deaths were a lack of staff, viruses in the natal wards, overcrowding and diarrhoea. In June this year five premature babies died at a hospital in Hameskraal. There was a high rate of infant mortality and this was disturbing. The Commission was planning to conduct an infant mortality study.

Ms Govender said that the Commission’s reports to Parliament were part of its strategy to ensure compliance. During the last meeting the Committee had said that it would take up the issue of non-compliance with PAIA based on what was in the last report, it would be important to know what has been done since then. The Committee could play a powerful role in assisting with non-compliance with international treaties especially where engagements with ministers and the Presidency were concerned. The Commission has to still engage fully with the issues raised including PAIA complaints and how they were handled at the Magistrate’s Courts as well as the use of interdicts to enforce socio-economic rights.

Mr Ahmed said that the vacancy rate had increased to 14% and it was based on the re-structuring process. After the re-structuring process some of the positions would be filled. Based on the new structure the SAHRC has increased the number of posts from 133 to 176. The updated attendance register of Commissioners would be provided to the Committee.

Mr Jeffery said that he did not understand the explanation on the contingency issues as well as the figures.

Mr Masaswivona Nhlungwana, Acting CFO for the SAHRC, said that an item was classified as a contingent liability on the basis of a certain future event occurring. The total amount owed to IDASA was R3.6 million, the AG requested the SAHRC to reflect its portion of this amount on its books which was R1.2 million. The R2.4 million remained as a contingent liability. The KPMG report had indicated that there was an amount of R10 million expenditure that was unaccounted for, this was the R10 million that the EU had provided. The figure of R10 million was also divided by the three entities, which was the R3.3 million. The litigation amount was for a case where the SAHRC had instituted a case in the North Gauteng High Court and it was possible that in the event it lost the case it would have to pay costs in the amount of R500 000.

Mr Ahmed said that the EU report had indicated that there was no wrong doing on any part of the entities, this matter has just taken a lot of time to resolve particularly because the three signatories of the three entities have resigned. This matter was under control. A risk management officer has not been appointed however it was agreed that the office of CFO position would have a risk management component. The material misstatement was a contingent liability and this was reflected by the AG as a provision. The high number of cases in the Western Cape may be because this was a new office. There was a lack of understanding with PAIA at the magistrate’s level and this made interpretation and implementation difficult.

Ms Govender said that the government misconception with socio-economic rights was that there could be a pitting of rights against each other in terms of resources. The Commission had been trying to enforce that rights were connected. The Commission had been trying to deal with government as a whole on the issue of socio-economic rights in particular the open toilet saga.

Mr Ahmed referred the Committee to a presentation that the Commission had made to Treasury where it had requested additional funding. This was not in the Committee’s documents but it would be provided at a later stage. The Commission would require an additional R30 million.

Mr Jeffery said that he found the reference fairly insulting. The CEO was not taking the budget review process seriously. To say it was not in the documents and the Committee could have what was provided to Treasury was not respecting the process at all. The Commission should not then moan about not having a shortage of funds.

Mr Swart asked if this was the first time the Committee had seen the request for additional funding.

Mr Ahmed replied in the affirmative and added that he had thought the meeting would focus on the annual report and not on the request made to Treasury and apologised to the Committee.

Mr Jeffery said that this was Mr Ahmed’s second year as the CEO and he should know that at this time of year the annual report and budget process were done at the same time especially.

The Chairperson agreed.

Ms Govender said that the CEO has apologised for the oversight. The Commission respects the role of the Committee in respect of the budget preview process. Hopefully this would be taken forward by the Committee.

Mr Jeffery said that there was nothing taken forward.

Mr Swart said that there was something in front of the Committee now on the overhead projector. The Commission had appeared before the Committee earlier in the year and made a presentation in great detail highlighting the money it needed. There may have been a slip up in this instance but the Committee had to be sensitive to the needs of the Commission.

Mr Jeffery said that he failed to see how putting something on the screen that was not in front of the Committee amounted to tabling it.

The Chairperson asked if the Commission had received a response from Treasury.

Mr Ahmed said no.
The Chairperson said that the Commission should send a detailed submission. The point being made by Mr Jeffery and understandably so, was that this came as an afterthought. Mr Swart pointed out that at the beginning of the year the Commission had highlighted its funding constraints and this was why it was expected that a detailed submission to that effect would have been made.

Ms Govender said the Commission would welcome this move.

Adv S Holomisa (ANC) said that the Commission had said that it had engaged the presidency and various ministers on the issue of treaties, what has been the president’s response? Has the Commission considered the option of drafting a Bill to replace the current SAHRC Act which was from 1994? What were the Commission’s views on the fact that there were no complaints made in some of the official languages of South Africa?

Ms Schäfer said that her recollection was that the budget review process was separate from the annual report process last year and this has always been the case.

Mr Jeffery said that he chaired the meeting last year where the annual report and he budget review were considered. The relationship between the Commission and Parliament was close particularly the CEO who was in Parliament, it was thus expected that there would be an understanding of the budget review process. Did the Commission have a relationship with community development workers?
The Commission’s complaints forms were in English and Afrikaans, why?

Mr Ahmed replied that the complaints forms were in English and Afrikaans however the provincial managers or legal officers translated the complainant’s language into English or Afrikaans.    The Commission was addressing the language issue and has an annexure in the complaints handling manual where there were complaints forms in every official language. The information on the handling of PAIA complaints in the magistrate’s courts would be provided later.

Adv Holomisa asked if the Commission had relationships with officials from traditional institutions.

Commissioner Mokate replied in the affirmative, at all of the Commissioner’s workshops where there were traditional leaders and the like there were traditional representatives.

Adv Holomisa asked if such interactions were part of the report.

Mr Ahmed replied that they were covered in the reports for advocacy.

The Chairperson thanked the Commission and adjourned the meeting.

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