South African Human Rights Commission Annual Report 2012; Nomination as Chair of International Coordinating Committee for Promotion & Protection of Human Rights

Meeting report

South African Human Rights Commission (SAHRC) Annual Report 2012
Adv Lawrence Mushwana, Chairperson, SAHRC, introduced the entity’s 2011/12 Annual Report. He also noted three other points. Firstly, he thanked Parliament for its motion of condolence to the family following the death of Commissioner Baai, but noted that the vacancy needed to be filled. Secondly, he noted that on the previous day, the SAHRC had received an award from the African Commission on Human and Peoples’ rights. Thirdly, in November, the SAHRC would be assessed at the United Nations, by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), and was hoping to retain its ‘A’ status. Finally, he noted that a new Chairperson of the ICC would be elected, and a number of African human rights commissions had approached the SAHRC asking that it be nominated as Chair.

Mr Kayum Ahmed, Chief Executive Officer, SAHRC, noted that both the Annual Report and a summary document had been circulated.

He noted that the SAHRC had significant improvement in performance, from 52% achievement of its targets in 2009/10 to 89% in 2011/12. There was a clean audit, with no emphasis of matter, largely due to a re-thinking exercise undergone at the SAHRC over the last two years. There were still some administrative challenges, including the restructuring process, financial and human resource constraints. Many Commissioners had argued that they were unable to fulfil their responsibilities due to the lack of financial resources.

A list was given of 74 targets, of which 66 were achieved. Many of the achievements related to effectiveness and efficiency. He presented a brief overview of the 6 strategic objectives and described the work done under each (see attached presentation).

In relation to Strategic Objective 1, Mr Ahmed noted the SAHRC’s concern that a number of international reports had not been submitted as yet, particularly by the Departments of Justice and Constitutional Development (DOJ) and International Relations and Cooperation (DIRCO). These were highlighted in a table (see slide 6). Discussions had been held with the two departments concerned and they had provided the SAHRC with a listing of their progress on ratification. However, South Africa was lagging far behind on its international obligations and this was a serious concern.

Strategic Objective 2 was that SAHRC must be the focal point for human rights. In the last year, it had litigated 17 matters in court, and 87% of the caseload was finalised. The nature of complaints handling meant that not all matters could be finalised in one financial year. He tabled an analysis of the complaints (see attached presentation). Many of the matters concerned arrested and accused persons or imprisonment. A number of matters should have been referred on to other institutions. Equality and race matters remained the prime issue referred to the SAHRC. He also tabled a summary of cases per province, showing that SAHRC had a total of 11 363 cases, of which 9 851 (87%) were dealt with. The abnormally high figures for Free State and Northern Cape were due to the backlogs, which were now being addressed. The numbers of complaints were steadily increasing, and it was estimated that 12 000 would be dealt with in this financial year. However, efficiencies and new handling mechanisms had been introduced.

Strategic Object 3 dealt with advocacy and awareness. Training materials had been developed, and there were a number of advocacy and awareness raising interventions, as well as establishment of both funding and collaborative partnerships. Under Strategic Objective 4, various reports had been produced.

Strategic Objective 5 related to equality and access to information. The National Information Officers’ Forum was hosted, a report on the Promotion of Access to Information Act (PAIA report) was completed, and the SAHRC awaited a date from Parliament when it could be presented. Strategic Objective 6 related to effectiveness and efficiency, and Mr Ahmed highlighted the full execution of the audit plan.

Mr Peter Makoneta, Chief Financial Officer, SAHRC, took Members through slides on the financial performance. There had been a 21% increase in the budget, and a surplus of R1.4 million was recorded, largely because of depreciation, a  non-cash item. SAHRC was covered well on its gearings. It had achieved another clean audit with no emphasis of matter and full cooperation was provided to the Auditor-General (AG). 75% of the AG’s findings from the previous year had been resolved through a comprehensive action plan. SAHRC would also be checking its own performance quarterly.

Summary of use of resources: section 5 of the Money Bills Procedure and Related Matters Act
Mr Ahmed noted that performance had improved significantly, that already the SAHRC had implemented steps to use funding and forward allocations more effectively and efficiently, and recommendations for forward use were made. He noted the direct correlation between financial resources and performance; as the budget had increased, the SAHRC had been able to deliver on more of targets. With its current budget of R100 million, it had achieved 89% of targets. The SAHRC would be motivating for further funding, although he would not repeat the information submitted to the Committee at the last meeting. The approved Medium Term Expenditure Framework (MTEF) allocation for 2013/14 was R108 million. Most of this went to the Legal Services programme. In the last financial year, commissioners had expressed concerns about their inability to engage with all complaints. In both 2013/14 and 2014/15, the request for funding was R141 million, depending on the establishment of a single precinct for Chapter 9 institutions. Both the Department of Public Works (DPW) and National Treasury (NT) had agreed to conduct feasibility studies on the housing of all Chapter 9 institutions in a single precinct, which could possibly happen in three to five years. This would result in significant cost savings, as leases currently comprised about 10% of budget.

He then presented an overview of performance, up to end August 2012. One target was not yet achieved (being a one-off that would be attended to later in the year), 16 were in the process, 15 were achieved and five had been exceeded. SAHRC hoped to reach about 90% performance during the year, and to entrench good performance culture.

The same trend was apparent for legal statistics (see attached presentation). There was a direct referral system with the Commission for Conciliation, Mediation and Arbitration (CCMA), which had helped to reduce the number of labour relations matters referred to the SAHRC. Equality issues took the biggest proportion of matters referred to the SAHRC.  54% of the current matters related to race, 12% to disability and 10% to ethnic and social origin. This reflected that SAHRC would need to pay particular attention to these matters. The “top 5” breakdown showed matters of human dignity, labour relations, equality, just administrative action, and arrested, detained and accused persons. Some of the changes in numbers from April to June were due to greater efficiencies that had cleared the backlogs. There had been slow but steady progress in dealing with the backlog. There was a greater focus on core work around equality and human dignity.

Mr Ahmed then tabled the appeals statistics, and explained that complainants could appeal a decision of the SAHRC. Most of the 82 appeals received were procedural in nature, with very few substantive appeals.

He then tabled the financial performance for the year to date. So far, about 37.5% of the budget had been spent. There were now three broad programmes, a simplification recommended by National Treasury. Administration comprised 40% of the expenditure, which SAHRC was trying to reduce by building in more efficiencies.

Mr Ahmed finally tabled some photographs of the recent provincial hearings on water and sanitation, showing that the meetings were well attended. The hearings were successful. The same issues were repeatedly raised, reflecting huge dissatisfaction and anger with levels of service delivery, and concerns that women had been raped or attacked whilst having to relieve themselves in bushes where sanitation was lacking.

Discussion
Mr J Jeffery (ANC) stressed that the Committee’s job was oversight and that was the context in which he was raising his queries.

Mr Jeffery noted that the SAHRC claimed an 89% achievement rate. Page 10 of the Annual Report (AR) gave more details on the reports completed and published annually, with the note “Achieved”. However, he questioned whether these reports had in fact been published by 31 March 2011, the end of the financial year. The Research Unit had written to ask for the reports and was told that they would be published only later. If this was so, the SAHRC should not have said that the reports were indeed “completed and published”. The Equality Report, for instance, was only completed in this month.

Mr Ahmed conceded that Mr Jeffery was correct. Whilst the reports had been completed by 31 March, (it would have been noted by the AG if they had not), they were not in fact published. The fact that they were described as “completed and published” was an oversight. The reports on the SAHRC’s website bore an October date, because there were formatting issues around the web publication. He commented that whilst the Focus Area reports were tabled for publication, some others, including the International Report, would not be published. He agreed that the strategic plan target indeed made reference to “publish”.

Mr Jeffery interjected to confirm that page 10 made reference to “complete and publish” report, so it seemed that this was in fact part of the target. The Auditor-General would be asked to comment why the target was described as achieved, when it had not been published. He felt that this was misleading Parliament. He also wanted to know why it took so long for the reports to be published, as they only appeared on the website six months after the end of the financial year.

Mr Ahmed conceded that there were problems in the way the targets had been formulated, and this was addressed in the current year, which did not mention “publish”. The former Acting Head of Research had resigned in the middle of the financial year, and the new Head would only start in the following week, resulting in lack of capacity in that department. He assured the Committee that he had no intention to mislead Parliament or the AG and there was a genuine error in thinking that “completion” of the reports matched the target. He stressed that Members should not dismiss the AR as not being reflective of the work achieved.

Mr Mushwana added that the SAHRC needed to go deeper into the matter, and said that a full and comprehensive explanation would be given in writing. If there was any omission on the part of SAHRC, this would be admitted.

Mr Jeffery also raised a problem with the AR figures. On page 37 of the AR, the PAIA statistics were quoted, yet did not correlate with the PAIA report on page 13. The private sector figures also differed. He questioned how two reports for the same period could be presented, with completely conflicting statistics.

Mr Ahmed responded that he could not answer that right now, and would have to check on this point and respond in writing.

Mr Jeffery also noted that the AR for the previous year had noted court proceedings that “were expected to be concluded in the next period”. He would have expected a report on those in the current AR. Instead, a virtual “cut and paste” comment appeared, referring again to court proceedings that would be concluded in the next period. Although an indication of the cases was given, about half of those cases were carried over from the previous year, with no note on progress. For example, he questioned what had happened to the 2010 investigation into baby deaths.

Mr Jeffery also complained that although a high number of complaints that were in the process of being handled was recorded, there was no indication how many were received in the year covered in the AR.

Mr Ahmed said that this was an oversight, and acknowledged that this was a weakness in the AR. He would provide further information on the 2010 matters that were not reflected specifically in the 2011/12 AR, including the investigations into the deaths of babies, and follow-up reports would be given to ensure consistency or flow from the previous year. He would also break down the numbers of complaints.

Mr Jeffery said that surely the number of complaints actually received should be shown in the AR. It was a vital piece of information.

Mr Ahmed confirmed that the information was available, and in future would be provided in this format. The Committee had previously raised concerns about lack of depth in the statistics and this was being addressed.

Mr Ahmed noted comments on the quality of the AR, but pleaded that it should not simply be dismissed. It did reflect the substantial work done in 2011/12.

Ms D Smuts (DA) was pleased to hear that the complaints system was working better, and asked how this had been achieved.

Mr Ahmed responded that this was largely due to allocation of more resources to complaints handling. There was a monthly overview and oversight of statistics. Weekly sub-committee meetings were held. Six new provincial managers were appointed, one had remained in position, and two posts were still vacant, and they were able to ensure that the complaints were dealt with efficiently. The strategic plan indicated measures for greater efficiency. The SAHRC was hoping to move to an electronic case management system and the additional amounts requested would be used in part for this.

Ms Smuts asked how the amounts requested for litigation would be utilised.

Mr Ahmed responded that SAHRC was still not receiving satisfactory responses and thus planned to use its powers of subpoena. However, over and above this, there were matters where litigation would be required, and this required resources, money and time.

Ms Smuts interjected to ask what was likely to be litigated.

Mr Ahmed responded that the matters could include corporal punishment, water and sanitation issues, and matters involving non-nationals, which the Chairperson had been dealing with, specifically the Lindlela centre.

Mr Mushwana commented that the SAHRC was presently, when taking cases to the Equality Court, relying on pro bono representation, but this was not always available, and many other specialists were not always prepared to take on matters on this basis. The question was whether the SAHRC should simply abandon cases where pro bono representation was not available. There were current pending cases, such as the challenge to section 10 of the Equality Act; it was felt that referring the matter to the High Court would defeat the purpose of the Equality Court if there was a delay in justice. It was a decision of principle that had to be taken in respect of pro bono work.

Mr Jeffery pointed out that Legal Aid South Africa (LASA) had funding for targeted impact matters and it had been suggested to the SAHRC at a previous meeting that it should engage with LASA. He questioned if this was done.

Mr Jeffery asked for more information on the comment that the litigation might involve corporal punishment matters. Corporal punishment had been banned in schools and only the constitutionality of corporal punishment in the home was outstanding, which was quite a contentious issue, particularly in the context of religious groups. He wondered if this was something that the SAHRC should be taking on.

Ms Lindiwe Mokate, Commissioner, SAHRC, explained that the SAHRC was not looking at what was happening in the home. There had been several cases, emanating in particular from the poorest of areas, where corporal punishment, although outlawed, was still being used in schools. In some cases, children had been severely injured through assaults at schools, which she said had reached unprecedented proportions. The parents of these children had to be assisted. The SAHRC was in contact with the Department of Justice and Child-Focus groups.

Mr Jeffery pointed out that if corporal punishment was being inflicted, this was a crime, and could even be assault with grievous bodily harm (GBH). He asked why it was necessary to litigate as a more appropriate route would be for parents to lay charges. He also asked if SAHRC had briefed the Portfolio Committee on Basic Education on its findings and suggested that if not, then it should do so. This Committee stressed the necessity to build relationships with Parliament. Furthermore, if these cases were not going to the criminal courts, then it must be questioned why not, and he also asked if SAHRC had discussed the matters with the police (SAPS) or the National Prosecuting Authority (NPA).

Mr Mushwana said that the criminal charge was one aspect, but compensation should also be claimed for the child.

Ms Smuts and Mr Jeffery made the point that LASA should be bringing these cases.

Ms Pregs Govender, Deputy Chairperson, SAHRC, added that rights of the child had to be upheld in the school and the home. The SAHRC would have to address this point at some stage, not linked to any agenda of any other body, but to raise its own concerns.

The Chairperson stressed the distinction between corporal punishment and assault.

Ms C Pilane-Majake (ANC) said that statistics were needed to understand the level of the problem. She suggested that it might be necessary to hold public hearings, as this could also raise public awareness. It would be necessary to engage with the Department of Basic Education.

Ms Mokate said that the concerns had been brought to the attention of the Chairperson of the Portfolio Committee on Basic Education and the Minister. Manuals had been considered, because educators probably did not know what to do. Alternatives had been produced, and those were sent to a number of schools. The Department of Education in KwaZulu Natal had paid out R2 million compensation for a child who had lost an eye after being punished by an educator; but the problem was widespread. The parents in KwaZulu Natal had been assisted in bringing the matter to court. Previously, schools had been conducting hearings, but the teachers would simply be suspended, not fired. The SAHRC had approached SAPS, who complained that they were unable to prosecute for lack of evidence. She stressed that it was necessary to provide legal assistance to the parents.

Ms Smuts asked that the information on statistics be sent directly to her by the SAHRC.

Ms D Schäfer (DA) thought that SAHRC should be taking the issue of evidence further with SAPS and perhaps a joint meeting was needed.

Ms Smuts noted the summary of noteworthy cases that appeared on pages 12 and 13 of the Summary circulated. It was mentioned that SAHRC had conducted a hearing, but it was decided to hold the matter over until the constitution challenge into section 10 of the Equality Act had been finalised. She asked who had brought that challenge on section 10, and what the involvement of the SAHRC was.

Mr Mushwana responded that the SAHRC had held a hearing on Julius Malema’s various matters and there was an agreement to hold over the final decision. A finding was made against Mr Malema and the ANC, and that matter was on appeal. He was not sure whether it was correct to say that the matter was held over pending the decision on section 10, but the facts of this case were similar.

Ms Smuts said that the information therefore appeared to be wrong. She asked again who had brought the application for a review of section 10 of the Equality Act.

Mr Jeffery commented that the problem was that the AR gave insufficient information about what was happening in the Equality Court, with only vague references to matters.

Mr Ahmed noted that an explanation of the cases before the Equality Court would be reflected in the Equality Report.

Mr Mushwana added that the Equality Report might not deal fully with all the issues in the Equality Court, but he would ensure that the information was captured and conveyed to the Committee. There was a substantial amount of work done on an investigative study throughout the country, on the functionality of the courts. That showed that the courts were not being utilised fully, except in Barberton, and that training for staff was not taking place at the moment, which was exacerbated by the fact that staff were being transferred from time to time.

Ms Smuts asked why the Free State toilet case was noted, in the Summary, as currently being before the South Gauteng High Court. She asked for more detail as to why SAHRC was opposing the review.

Mr Ahmed responded that there was a mistake in the Summary and the information in the AR was correct. He apologised for any inconvenience.

Ms Govender said that page 29 of the AR referred to the matter in which the Commission had made a ruling that the Minister of Police had violated rights of an individual. The Minister took the SAHRC to the South Gauteng High Court on review, and SAHRC was opposing this. This was an illustration of how seriously the SAHRC viewed the question of holding the SAPS to account.

Ms Smuts questioned why the matter, even if brought by the Minister of Police, was in the South Gauteng court.

Mr Mushwana said that SAHRC was opposing both the substance and procedure.

Ms Smuts commented on the requests for funding that were raised for the next financial year. She did not think R1.5 million could be approved for software and registration. Ms Smuts also noted that R6.6 million had been requested for PAIA matters, and asked where it might be possible to prune those requests. She said that the insights as to why PAIA was not working, set out on page 23, were useful, particularly since they reflected that there were no mechanisms of accountability and means to measure delivery. However, she pointed out that the PAIA functions were of course to be allocated, in future, to the Information Regulator, under the Protection of Personal Information Bill (PPI), although it was accepted that it would take some time to get this institution up and running, so that SAHRC would have to carry on with PAIA matters for a while. The Committee would have to think about what was expected, and what funds should follow. She hoped the PAIA obligations would follow the PPI obligations.

The Chairperson asked if the PAIA report had been tabled, or what the process was.

Ms Smuts questioned how SAHRC would ask for a date to make a presentation.

Mr Jeffery reminded Members that a separate report was requested, but he was not sure how it was intended to be tabled. It would be useful to have it formally tabled to Parliament, and then referred to the Committee. He commented that pages 16 onwards noted certain requirements around sections 51 and 14 of PAIA, given the substantial time that was taken in reviewing reports of institutions. However, he was surprised that this Report contained no acknowledgment of the Protection of Personal Information (PPI) Bill and the fact that it had already amended PAIA. He also stated his concern that during the processing of the PPI Bill, the SAHRC had not suggested any amendments, other than to state that it did not think this function should be taken away. He felt that the SAHRC and the Committee were not finding each other. There was also no reference to earlier meetings.

Ms Smuts agreed, and said the failure to mention this Bill was even more ironic, given that SAHRC also had a duty to keep sight of legislative amendments.

The Chairperson made the point that the PPI Bill was likely to be implemented incrementally so the SAHRC may retain some functions.

Mr Jeffery said this was accepted, as also the fact that a budget would still be needed, and there would have to be a handover. 

Mr Ahmed said that he had not prepared for comment on the PAIA report today. He suggested that this be formally tabled, and the matters raised be held over until the full report was discussed.

The Chairperson agreed.

Ms Smuts said it was useful that SAHRC had looked at records management, but noted that the file had not been approved under the National Archives Act. She asked if the SAHRC had also looked at record-keeping under the current Minimum Information Security Standards (MISS), which was a Cabinet policy, and how departments were complying with it. (This question was not answered.)

Ms Smuts remarked on the Foreword to the AR by the Deputy Chairperson, which noted that apartheid social engineering had resulted in South Africa being one of the most unequal countries in the world. She did not, however, see the relevance of this introduction, which seemed to be a comment on the Marikana matter, and which was largely repeated in the Sunday Independent.

Ms Govender said that this was common practice, and the Foreword to the Annual Report by Mr Ahmed had also been published in the media. The SAHRC wanted to stimulate discussion in the broader public, beyond merely tabling matters in an AR, as the public did not always find this accessible, although it was of course reporting to the public through Parliament. The Marikana matter had defined human rights in the country, and this was being acknowledged across the board.

Ms Pilane-Majake asked why the SAHRC was dealing with the Marikana matters, especially since a judicial commission of inquiry had been appointed.

Mr Mushwana said that SAHRC could not refuse to deal with a case because it was pending elsewhere. One specific complaint had been referred to the SAHRC, and another was being referred by the Public Protector. The SAHRC had decided to participate in the Farlam Commission of Inquiry, but this was not to say that it was withdrawing its own investigation. It wanted to ensure that anything dealing with human rights was fully canvassed during the hearing, rather than duplicating the issues. After close examination, the SAHRC felt that it was in the public interest not to utilise the Legal Resources Centre (LRC) in this case, but rather to continue with other assistance. At this moment, no separate investigation was being conducted, but he stressed that the appointment of the judicial commission did not take away SAHRC’s right to investigate. He mentioned that the terms of reference for the judicial commission did not in fact make any reference to human rights.

Mr Jeffery said that his concern was that there was still confusion relating to the SAHRC’s role. There was no problem with SAHRC participating or monitoring the Farlam Commission of Inquiry. The media, however, had quoted the SAHRC as saying that it would “continue with our investigation”. If SAHRC was investigating human rights abuses, that would include shootings and deaths, possibly labour conditions, all of which must be addressed in the Farlam Commission, even if they were not specified as human rights. The same concerns pertained also to the Malema “hate speech” matter, and he questioned why the SAHRC would start a hearing if someone else was dealing with the matter. He was also concerned that in its most recent newsletter, the SAHRC referred to the tragic killing of miners, but nothing was said of the other groups. He urged, particularly in view of the shortage of resources, that SAHRC should avoid overlaps. He asked specifically what was being investigated.

Mr Jeffery was pleased that SAHRC was not being represented by the LRC. There were a number of parties involved.

Ms Smuts said the crisp point was that SAHRC should not be working with LRC when it represented parties, and the Committee acknowledged the entity’s concessions on that point. However, she asked who Mr Mushwana was referring to when he said that “others” would assist, and asked if they were in any way parties to what had happened. She also asked who the complaints were from, and why there was a need to protect the complainant, by not mentioning any names, as well as why the complaint from the Public Protector was cited when the SAHRC had not yet even seen the contents. She too had a concern about the scope and breadth of the investigations.

Mr Mushwana stressed again that once the Farlam Commission of Inquiry had been concluded, the SAHRC would make a decision whether to continue with its own processes. It was not rejecting any complaints received. He had just discovered that the Public Protector referral in fact related to the same complainant, who was the Ubuntu Development Foundation. The SAHRC would not only rely on complaints being lodged as it could, as an institution, participate on its own initiative. The SAHRC was trying to learn from the LRC matter, when choosing who would assist the SAHRC, and there was ongoing consultation at the moment with other attorneys and advocates, but no appointments had been made. The SAHRC would be appearing in its own capacity, and it would be consulting not only lawyers but also other human rights activists.

Mr Jeffery thanked the SAHRC for this explanation. He noted that much of the uncertainty had been caused by earlier statements, and repeated that Busines Day had quoted the investigation. He suggested that this should be clarified by a statement along the lines of what Mr Mushwana had just outlined. 

Ms Schäfer noted that, a few weeks ago, the Committee had asked about the report of the SAHRC on the textbook crisis, and was told that there was a report, by Ms Mokate. She asked why the Committee was now told that it could not be made available.

Mr Ahmed confirmed that the SAHRC was still in the process of compiling all reports.

Mr Schäfer reiterated that the Committee was told there was already a report.

Ms Mokate said that the question posed at that meeting was whether the SAHRC was doing anything about the textbooks matter. She had responded that all provincial managers had been asked to compile reports from their provinces. The reports had not only to do with workbooks, but also braille materials and the special schools. The provincial managers had brought information to Head Office, but it was then discovered that there were gaps in that information. The SAHRC had no staff focusing on education matters, so when the material reached head office, nobody had been immediately able to put it together. The gaps in information, particularly from Eastern Cape, were however now being addressed. Reports were sent, but they were not actually in a form suitable for Parliament. She apologised for the delay.

Ms Schäfer said that it was not always clear to her what matters the SAHRC would take on, and what it would refer elsewhere. The assault of lesbian women at the Carlton Centre was clearly based upon their sexual orientation, yet the SARHC had suggested that the matter should be given to the Commission for Gender Equality (CGE) as a gender issue. She pointed out that it could have involved gay men or women, and asked how many similar cases were referred to other bodies. She was of the view that sexual orientation was not a matter of gender equality.

Mr Ahmed said that the SAHRC had a comprehensive complaints handling manual. It would generally refer on matters where there was another organisation in whose mandate those matters fell more directly. For instance, this matter was referred to the CGE, and complaints from prisoners would be referred to the Judicial Inspectorate of Correctional Services.

Mr Mushwana added that he had now resuscitated meetings of all institutions supporting democracy (Chapter 9 institutions) and the terms of reference as to how they would interact and operate were being finalised. At times it was difficult to decide whether issues such as these related to gender, but a violation of a gender right was still a violation of a human right. The SAHRC could not operate as a super-structure. It considered each case on its own merits, and could even collaborate to give space to other commissions. He agreed that a decision may not be precise.

Ms Govender also reiterated the indivisibility of rights and the fact that all the issues coming to SAHRC were human rights. Sexual orientation attacks were about human rights and gender rights, because they went to social relationships and stereotypes.

Ms Pilane-Majake noted the consultations around the single precinct for all Chapter 9 institutions, and asked if they too had been consulted.

Mr Ahmed confirmed that there had been many discussions between himself and CEOs of other institutes, and this was a collective effort. SAHRC had been driving the effort, but other institutions were in agreement.

The Chairperson asked if the single precinct idea would apply at the provincial level as well. He hoped that, in the discussion with the Department of Public Works (DPW), there would be emphasis on the need to move away from leasing accommodation.

Mr Ahmed agreed that SAHRC wanted to move away from leasing, as two years’ lease charges would represent more than the cost of building. The decision on whether this would apply at the provincial level would be dependent on what came from the feasibility study.

Mr Jeffery commented that 385 of the complaints had been resolved, or about 5%. However, 2 279 (38%) were closed because the complainant withdrew the complaint. He asked why this happened and wondered if it related to the length of time that SAHRC took to resolve issues. He commented again that more detail was needed on the complaints. Trends were one aspect, but the Committee actually needed to know what issues were raised.

Mr Ahmed confirmed that many of the cases had been closed because they were not dealt with within the requisite time frames. When a task team was put together to deal with the backlog, many complainants had indicated that they now wanted to withdraw the matters. The backlog project would continue to impact on the current statistics. Hopefully there should not be a repeat of the high number of withdrawals. He took the point on the analysis of the legal statistics. The problems with legal statistics were largely being dealt with, and the analysis of the complaints and electronic case management would also address the issues. He commented, in answer to an earlier question, that he had now ascertained that the total number of cases for the current year (2012) was about 10 000, with 1 512 being carried over from the previous year. However, he would have to check and report back on the breakdown for 2011/12.

Mr Jeffery said that the Committee supported an initiative to re-establish a forum for the Chapter 9 institutions, and he stressed that it was crucial to share resources. He asked – and received confirmation – of the fact that there were provincial, not regional offices. LASA had the biggest footprint, and he thought it made sense for a relationship to be established so that people could refer matters at a LASA office. He reiterated concerns raised earlier that there was not enough engagement with LASA. A large number of complaints referred to the SAHRC were made by people who allegedly were imprisoned because LASA was not doing its work properly. The Committee was also concerned about the numbers of suspects who were detained whilst awaiting trial, because they could not pay bail.

Mr Ahmed said that informal discussions had been held at a meeting convened by National Treasury, who also suggested closer working relationships with LASA. LASA had shown some reluctance, raising questions of independence, but the matter could be pursued, and this would also be raised with the DPW in the context of sharing space.

Ms Pilane-Majake questioned how the statistics were calculated, and asked for an explanation of what the tables represented.

Mr Ahmed reported that, for instance, the statistics from April to June showed only the “Top 5” issues, and therefore not all cases. However, the numbers in each of those categories had been compared month to month.

Ms Pilane-Majake commented that if only 37.5% funding had been spent to August, this suggested under-expenditure.

Mr Makoneta said that the projections were in line by the end of September. The second quarter financial report would be tabled in the next period. The contractual obligations, rental and salaries would be noted.

Ms Pilane-Majake asked if SAHRC had examined its capital expenditure closely, and asked if was really necessary to increase the budget again.

Mr Makoneta explained that the capital expenditure represented only R920 000 in the next financial year, so there was not really room to reduce that. Of the R100 million budget, 67% related to salaries, and it was impossible to cut that expenditure.

Mr Jeffery also noted the concerns about the budget and said that although the staff vacancy rate was deliberate, it was nonetheless alarming, at 29%. He was also worried about the statement that commissioners could not attend to issues because they could not travel to investigate complaints. He would have preferred to see more specific motivations around the need for a larger travel budget. He thought that Ms Smuts’ questioning of the amounts allocated for litigation was correct, and suggested that instead the SAHRC should properly motivate for a budget that would enable the commissioners to do their work. He also was concerned that the SAHRC did not appear to be looking for more opportunities to share resources.

Mr Bokankatla Malatji, Commissioner, SAHRC, confirmed that commissioners were not able to do their work because of lack of funding, particularly where they had to do inspections in loco. At times they were unable to meet stakeholders and do monitoring and evaluation of municipalities. He agreed with Mr Jeffery that it was vital for such issues to be outlined clearly in the funding motivation.

Ms Mokate also confirmed that although there were a number of problems in the provinces, the current funding only allowed for the commissioners to visit two provinces a year.

Ms Pilane-Majake said this was of huge concern. Commissioners must be in a position to interact with the population. Perhaps the work needed to be re-prioritised, but the Committee had to consider this in more detail to try to correct the situation.

Mr Mushwana agreed, and said it was never the intention that the Commissioners remain “office-bound”. He added that support staff were also needed, as the constant use of temporary staff had a negative impact on institutional memory. The operational budget was far too small but it was questionable whether this could even be re-prioritised. He hoped that repeated requests to National Treasury may make a difference. If the commissioners were not available to guide and conduct investigations, proper results would not be achieved.

Ms Pilane-Majake asked how much was spent on travelling, and what it was for. She said, however, that this budget should not be clouded by capacity issues. There were other ways of communicating, such as tele-conferencing that could be used.

The Chairperson asked if the travelling was programme-based.

Mr Ahmed confirmed that this was correct. The total budget for the Commissioners’ programme, excluding salary, was R2.7 million. The Stakeholder Engagement budget was R362 000. Commissioners’ meetings, to which stakeholders were invited, were budgeted at R500 000. International travel was based on international obligations. He could circulate the detailed information, if required.

Ms Govender said it was very important for the Commissioners to be in provinces and hold direct engagements. In this year, water and sanitation had been a key programme of the Commission (done proactively, to link these aspects to systemic issues). Commissioners had to be responsive to matters that were raised.

Mr Jeffrey said that any additional budget would have to take, as its starting point, what was being done at the moment. He asked if the commissioners were still flying economy class.

Mr Ahmed said that they were not.

Mr Jeffery said that was a pity. He also commented that the current Annual Report seemed to be more expensive to produce than last year’s report. He said that perhaps the SAHRC needed to look again at why the decisions were reversed.

Mr Ahmed said that the vacancy rate was a direct consequence of the restructuring process. At the moment, SAHRC had filled about 95% of the current structure, and there were 3 senior management vacancies, out of 20 posts. One of the major challenges was to fill posts in some of the provincial offices but SAHRC was working on that.

Mr Jeffery then reminded the SAHRC of a decision taken previously that all complaints should be noted as resolved “by the Commission”. He commented on a recently-published media report on a complaint about chastisement of wives, under the Koran, which made reference to a staff member taking the decision.

Ms Schäfer said that she had similar concerns about the decision on the gender/sexual orientation issue raised earlier.

Mr Mushwana said that sometimes complaints were able to be resolved speedily by a provincial officer, without the necessity to have them considered by a full complement of Commissioners. He was not sure why this matter had not come to the Commissioners. Perhaps the guidelines needed to be revised. At some levels of provincial managers, closing reports were published. The gravity of this matter may have been under-estimated.

Ms Melanie Dugmore, Provincial Manager: Western Cape, SAHRC, outlined the ways in which a matter could be finalised. A complaint may be rejected as falling outside the scope of the SAHRC, or referred to a more appropriate body having jurisdiction. SAHRC would investigate and could request further information on any matter. Some complaints were withdrawn, and some complainants may contract a private attorney to resolve the issue. However, even a decision to refer the matter elsewhere would have to be made by one of the legal officers. This was a time-consuming process that required full investigation. In relation to the findings, she explained that in terms of the set procedures, reports had to be written, and this may require Counsels’ opinion on interpretation. The reports were submitted internally before being presented to commissioners, and they could be very substantial reports. The word “finding” may be misleading. At assessment level, the Provincial Manager may make a finding that the matter was better dealt with by another institution. That perhaps had to be clarified.

Ms Smuts thought that there should be a system of sign-off or approval. She asked how the commissioners could get a sense of what South Africans were concerned about if they did not have sight of the complaints.

Mr Ahmed added that most matters were dealt with at provincial level. There was no way that six commissioners could look at every matter. The “high-risk” matters were elevated to the legal sub-committee. In the case now under discussion, the complainant, Mr Mohamed, had asked for a particular interpretation of the Koran to be banned, because it perpetuated violence. The SAHRC had worked closely on this with the Gender Commission, and other academics, religious bodies and other specialists, and its decision was based on that consultation. The complainant was going to appeal, on both a procedural and substantive level.

Ms Pilane-Majake said it was always important to promote religion and culture, but it should be ensured that nothing in those violated the Constitution.

The Chairperson cautioned her that she was entering into dangerous territory; the fact that the Catholic Church, for instance, did not allow women to be priests could be seen as a violation of rights. 

Ms Dugmore said that the details about this case were in fact given to the media by the complainant. She added that a further difficulty was that several billion copies of the book had been distributed, across the world, and it was available on the internet. In addition, the author of that interpretation was deceased, and the complaint went not to the Koran itself, but a particular interpretation of it. The complainant had taken the matter on appeal, and a substantive finding would be made.

Ms Govender said that SAHRC had in fact received other matters concerning religious texts, broadly, including interpretations of the Bible. She said that there was a possibility that the SAHRC may need to look at texts and interpretation, particularly as they related to gender equality and rights of children, and perhaps  there needed to be a broader debate on religious texts.


Ms Smuts said the SAHRC should not be a censor. Whilst there might be a case made out for a broad discussion on interpretation of religious texts, nothing that SAHRC would say would in fact have any legal effect, as any changes would have to be legislated by Parliament. She was not sure whether anything would be gained from such an exercise. The Bill of Rights required respect for religious and cultural rights, but specific manifestations of those could possibly come into conflict with the Bill of Rights. She thought that this would be a very difficult exercise.

Mr Jeffery added that the Commission on Religious, Linguistic and Cultural Rights should perhaps be the most appropriate body to consider these matters. However, since the SAHRC had to consider the matter again, it was not appropriate to have any further discussion on it.

Mr Jeffery asked how many findings the SAHRC made, per year.

Mr Mushwana said that not every complaint would get a formal report. A closing report would be a brief summary of a complaint, what had been done, and the conclusion reached. Even in simple cases, reports would be drawn.

Mr Jeffery drew a distinction between cases that were resolved, perhaps by mediation, and those on which the SAHRC made a formal ruling. When the SAHRC first started, a finding was made, by a provincial staff member, that a former Minister of Justice had violated human rights, and it was following this matter that the SAHRC was asked for undertake that in future the Commissioners, and not the staff, would be responsible for the formal findings. He reiterated that the Koran interpretational case was not a simple matter, as evidenced by the fact that there had been a number of consultations with other bodies on the issue. This emphasised that the finding should have been given as an SAHRC body, not individual, finding. He did not think that it would be too difficult to circulate case documentation to commissioners. He added that the fact that there were reviews indicated that people were not happy with the resolutions. He urged that the undertaking of the SAHRC Commissioners be reviewed and fully implemented.

Ms Smuts said that the 2002 document produced by SAHRC on free speech and its application to sections of the Equality Act was very authoritative, and she thought that SAHRC should perhaps do comparable exercises emanating from other complaints. That would be the merit of having complaints dealt with by commissioners, to develop precedents.

Mr Mushwana said that pronouncements as to whether something was or was not a violation should only be given by a commissioner. He took the points that the Committee had made.

Mr Jeffery said that he had a further concern that the SAHRC was also failing to make use of the resources that Parliament could offer. It had noted a problem with non-compliance, and had requested money to issue subpoenas under PAIA. He thought that perhaps SAHRC should be formally requesting the House to pass a resolution calling on the offending departments to explain why they had not responded, when they would do so and what corrective steps had been taken. He added that in the previous year, he had commented that it was difficult for the Committee to pinpoint, in the AR, which departments had not sent through the necessary questionnaires. Again, he would have expected this to be clearly stated, upfront, and for SAHRC to ask Parliament to call on those departments for explanations.

Mr Jeffery also noted his alarm about the lack of compliance with the international treaties, which was yet another matter that should be put to the House so that the offending departments could be put on terms to deliver. The Committee would probably need a briefing before putting this to the House. However, the point was that SAHRC should be writing to the Speaker to note trends on which it wanted to engage with other committees. Although it was only national government that accounted to the NA, it was also possible for SAHRC to approach the representatives of provincial legislatures in the NCOP to ask that Select Committee delegates get their own provincial legislatures to engage. The South African Local Government Association (SALGA) was another avenue.

Mr Jeffery commented that when the Committee scheduled the briefing on the PAIA report, it would be useful also to consider if other matters needed to be covered.

The Chairperson commented that the International Report had to be tabled as well, otherwise it became meaningless.

Mr Jeffery stressed that if the SAHRC had insufficient money, it could ask the Speaker, who was bound to ask for copies, that instead a link be created to its website reports.

Ms Govender welcomed these comments around the role of Parliament in supporting the SAHRC’s work, particularly in regard to non-compliance. SAHRC had submitted the list of non-compliant departments, on two previous occasions, following requests by this Committee. However, several meetings back, the Committee had also promised to give a plan of action for matters like a resolution in Parliament. She agreed that the Plan should be discussed, during the next meeting on PAIA, to outline how Parliament could use its powers to take forward matters of non-compliance, also covering international treaties. Another question was how Parliament monitored how government reported under its treaty obligations. For instance, one of the recommendations that were noted as “not acceptable” to government was the recommendation that the Traditional Courts Bill would have to comply with the Constitution and government’s own international obligations. That created a very bad impression.

Mr Jeffery asked when that information relating to non-compliant departments was provided. In the Annual Report of last year, the departments who had complied were listed, but not those who had not complied. He asked whether this list included those failing to submit the section 184 reports.

Ms Govender noted that in both of the last meetings of the Committee, the Members were told of the departments who had not complied. The list had included those failing to comply both with the PAIA requests and the section 184 reports.

Mr Mushwana also welcomed the advice offered by Members in relation to engagement with LASA and Parliament. There had been some shift by government’s attitude, as reflected in the UN reports. There was substantially more engagement with the Deputy Minister of Justice and Constitutional Development. A major undertaking was given to ratify every outstanding treaty by the end of the year. Previously there had been lack of coordination by DIRCO, DOJ and the Office of the President, and the positive actions now should be noted.

Ms L Adams (COPE) asked about the date of the International Report, as some reports seemed to have been accessed in December 2011.

Mr Ahmed confirmed that a new report would be produced, covering the period to December 2012. It was not aligned to the financial year.

Ms Adams wanted to know how many cases were finalised, since the summary report mentioned 87%, but the Annual Report spoke of 80%.

Mr Ahmed said that the 80% figure related to the total complaints, and he reiterated that work was needed on how statistics were presented. The correct figure was 87%, which were matters closed.

Ms Adams said that the last AR noted that the restructuring process was to be finalised in the next year. In the current AR, restructuring was reflected as an administrative challenge, and she asked for an explanation.

Mr Ahmed explained that the initial plans assumed that the restructuring would be done within 18 months. There were still a few members of staff who were not placed, and the SAHRC was still dealing with that. The post restructuring process had been started, and the rebuilding would follow the restructuring. SAHRC would move across into the new structure shortly.

Ms Adams noted that only 40% of cases in the North West had been completed, and wanted to know of the particular problems in this province.

Mr Ahmed said that there had been ongoing challenges around capacity. There had been only two staff members – an Acting Provincial Manager and a Legal Officer - and SAHRC had to date been unable to source a suitable permanent Provincial Manager. It was looking at offering support from Head Office in the meantime, whilst finalising the process.

Ms Adams noted that page 37 of the Summary report noted concerns about DIRCO’s ability to perform its job, and the socio-economic departments’ ability to perform their jobs. She thought the wording was quite strong and asked what the CEO had been trying to convey, and whether SAHRC still maintained that position.

Mr Ahmed said he had questioned the ability of certain departments to deliver on their mandate, but this was done because it reflected the complaints received, and he was not conveying a personal view.

Mr Jeffery asked what had happened in relation to the IDASA issue raised in the previous AR.

Mr Ahmed said this had been resolved amicably. The SAHRC and the Public Protector each paid R1.2 million since no assistance from departments was forthcoming. IDASA had withdrawn the case, the fund was closed, and the money was returned to the EU, via National Treasury.

Nomination of Chairperson to ICC (see attached document)
Mr Jeffery noted that there were implications around the nomination of the SAHRC Chairperson to the ICC. Whilst the fact of nomination was to be applauded, and there were positive implications for South Africa, page 6 onwards outlined the implications of this nomination to the SAHRC. Travel and related costs for the Chairperson would be borne by the ICC, but a further budget of R2.3 million was also requested. He asked what this was intended to cover, and how much time the Chairperson would be required to devote to ICC issues.

Ms Govender said that the SAHRC as an institution had been nominated, and its head, the Chairperson, would act as Chair of the ICC.

Mr Mushwana said that SAHRC had been trying to get more details from the ICC, but this was rather difficult since it had not really had its own in-house resources. Part of the budget requested would cover the difference between what ICC paid for flights, and a top-up to upgrade to business class, as well as for support staff who would be needed to assist the Chairperson. Two of the compulsory trips were already catered for in the current budget of the SAHRC (including the Annual Conference of ICC). He was not quite sure how many trips would be required. The figure was only an estimate at this stage. There were likely to be around five meetings.

Mr Jeffery said that there was some difficulty in requesting extra funding without full details. He asked if the amount was R2.3 million per year, or if this covered three years. He also wanted to know how many staff would be attending. He commented that the flight to Geneva was R84 000, and he questioned the flight costs of R255 000 quoted for attendance at the International Conference. He also repeated his question as to what amount of time would be needed.

Mr Mushwana said he could say with precision, as most of the work would be done in the home country, but about a week’s attendance, with another few days to wrap up, would be involved in the meetings.

Mr Jeffery said his question was not related to the duration of meetings, but the time required for ICC work, which would impact on the ability of the Chairperson to do the work of the SAHRC. The former Chairperson of ICC could probably assess this. He also urged that the full cost must be quantified.

Mr Mushwana conceded that at the moment the estimates were vague. However, he urged that the matter needed to be resolved by November, and that South Africa was regarded as the most reliable country to deal with the Chairing, from Africa.

Ms Judith Cohen, Parliamentary Liaison Officer, SAHRC, confirmed that the position was not easy to fill from within Africa, as very few institutions had the necessary criteria. SAHRC was under subtle but certain pressure to take this leadership role.

Ms Pilane-Majake appreciated the acknowledgment of the SAHRC’s track record, but agreed with Mr Jeffery that it was important to assess the amount of time that would be required, and the effect on SAHRC’s budget. She questioned if the three-year term would correlate with the Chairperson’s term of office at SAHRC.

Mr Mushwana said that he had spoken to DIRCO about the possibility of getting funding from the African Renaissance Fund. There was an indication that they may be able to assist but nothing had been received formally in writing. The time frames did correlate.

Mr Malatji urged that this was a chance that SAHRC should not miss, since Africa had never yet chaired the ICC. He understood the concerns around funding and time, but said that an extra researcher would assist the Chair, similar to the one who helped him on the African Network.

Mr Jeffery asked if the SAHRC had managed to visit Lindlela. He understood the desire to give South Africa more recognition, but said that the extra budget would need also to be considered in the context that already SAHRC was saying that there was not sufficient funding to undertake all the necessary domestic travel to do the work of SAHRC, and the need for more commissioners. He noted that the whole question needed to be discussed within the ANC’s study group, and asked that the decision be deferred.

Other Members agreed.

Ms Smuts noted that in addition, she was not sure whether the current legislation actually mandated SAHRC to do this work and said that it may need to be changed to allow it to undertake foreign work.

Replacement of Commissioner Baai
Ms Mokate asked how far Parliament had gone to replace Commissioner Baai.

The Chairperson noted that the Minister had to inform the Speaker of the need to make another appointment, and it would be referred to another committee.

Ms Govender said that this was critical, and asked this Committee to engage with the Minister to ensure that the process was expedited.

A representative from Parliament said that the Office for Institutions Supporting Democracy was following up on this and was waiting for a letter from the Minister, as also considering if the process should be amended.

Mr Mushwana thanked the Committee for its guidance and would follow up on the concerns.

The Chairperson acknowledged the vital nature of SAHRC’s work, saying that it had acquired even greater significance over the past few years. He assured the SAHRC that the Committee would engage with the Minister and raise other issues appropriately.

The meeting was adjourned.