South African Human Rights Commission Bill: briefing by Department of Justice and Constitutional Development

Meeting report

The Chairperson of the Portfolio Committee on Justice and Constitutional Development (the Committee) met to receive a briefing on the South African Human Rights Commission Bill [B5-2013], consider its report on the suspension of a magistrate and consider its report on the withholding of salary of a magistrate.

 

Briefing by the Department of Justice and Constitutional Development (DOJ&CD) on the South African Human Rights Commission Bill [B5-2013]

Mr Johan Labuschagne, Principal State Law Adviser, DOJ&CD, commenced the presentation with a brief background on the South African Human Rights Commission (the Commission) and the proposed South African Human Rights Commission Bill (the Bill).  A detailed expository on proposed amendments to each section of the Bill was discussed (see document).

Clause 5

Mr Labuschagne highlighted that Clause 5, which provided for the composition of the Commission, was in most respects similar to the exiting provisions of the current Act. The clause provided for the following amendments amongst others- (a) the composition of the commission increased from seven in the current Act to 11 members in the Bill; (b) increase in the number of full time members from the current five members to seven; (c) provision for the appointment of acting members of the commission and matters related thereto; (d) the regulated resignation of members of the commission by providing that members will be regarded as having resigned where they accept nominations for the National assembly, the National Council of Provinces, a Provincial Legislature or a Municipal Council or if such member is appointed as an office-bearer of a political party; (e) the empowerment of the Commission to take appropriate steps, where necessary, against a member of the Commission for the recovery of remuneration and allowances paid to such member where the member had failed to give the required three months’ notice of resignation to the National Assembly.

Clause 8

Mr Labuschagne said that Clause dealt with vacancies in the Commission and was similar, apart from certain amendments to Section 11 of the current Act. In terms of the existing Section 11, a vacancy in the Commission occurred when a member of the Commission died, was removed from office or resigned. The amendment to the Section sought to- (a) create a further scenario where a vacancy in the Commission would exist when a members resignation was contemplated under the new section 6 (8) (b) took effect (b) provide that a vacancy in the Commission must be filled within a maximum period of six months after it had occurred.

Clause 9

Mr Labuschagne said that Clause 9, which regulated the determination of remuneration of members of the Commission, included an amendment to the effect that allowances and other terms and conditions of office and service benefits of members may not be adversely altered during their continuation in office.

Clause 13

Mr Labuschagne informed Members that the provisions of Clause13 were similar to those of Section 6 of the current Act, which empowered the Commission to approach either the President or Parliament with regard to any matter relating to the exercising of its powers or the performance of its functions. The Section has been amended  by- (a) substituting ‘Parliament’  with ‘National Assembly’ because the Commission was in terms of Section 181 (5) of the Constitution, accountable to the National Assembly; (b) the words ‘other relevant body’ has been added.

Clause 14

Mr Labuschagne indicated that Clause14 provided for the powers and functions of the Commission and makes amendments to the similar provision under the current Act by- (a) inserting the provisions of the repealed Section 116 of the interim Constitution (subject to minor changes); (b) aligns the powers and functions of the Commission with some of those of the Commission for Gender Equality; (c) provides that the Commission must review government policies relating to human rights; (d) provides that all organs of State must consult with the Commission on all major policy matters affecting the promotion, protection and enforcement of human rights.

Clause 19

Mr Labuschagne reported that Clause 19 dealt with reports by the Commission and was apart from certain amendments, similar to the existing Section 15 of the current Act. Amendments envisaged under this clause included- (a) the insertion of the provisions of Section 181 (5) of the Constitution in order to confirm the requirement contained in that section; (b) the provision that the Commission must in its reports to the National Assembly, also report on the achievement of its objectives; (c) the provision that the Commission must as soon as possible (no longer on a quarterly basis as was the present case) submit to the National Assembly  (and no longer to the President and Parliament as was presently the case) reports on the findings in respect of the functions and investigations of a serious nature which were performed or conducted by it; (d) that where the Commission made any findings or recommendation in respect of a matter investigated by it known to the organisation or institution concerned, that organisation or institution must within 30days after becoming aware of such finding or recommendation respond in writing to the Commission, indicating the steps taken to give effect to such finding or recommendation.

Clause 25

Mr Labuschagne stated that Clause 25 provided for the repeal of the Act and also provided for transitional arrangements required as a result of the repeal.

With regard to the financial implications the proposed Bill would have for the state, Mr Labuschagne remarked that the increase of the number of fulltime members of the Commission from the existing five to seven will result in financial implications for the Commission. It was however not possible to estimate the additional expenditure as it depended on the negotiated remuneration package of the additional two full time members.

The Chairperson thanked the Department for the presentation and invited Members to engage with the Department on the Bill.

Discussion

Ms M Smuts (DA) remarked that it was unnecessary to outline the seat of the Commission as had been done in Clause 3 of the Bill.

Ms Smuts expressed concerns with the provisions of Clause 5; the proposal for 11 commissioners was unnecessary. The recommendation proposed by the Adhoc Committee on Review of Chapter 9 and associated institutions were for seven full time commissioners.

Mr Labuschagne responded that this was based on the provisions of the interim Constitution, hence the proposal for 11 commissioners.

The Chairperson responded that there was a need for the Committee to apply its mind further to the provisions of this clause.

Mr J Jeffery (ANC) responded that it was necessary to bear in mind that the sections of the interim Constitution referred to by Mr Labuschagne were no longer binding.

Ms Smuts remarked with regard to the staggering of office terms of commissioners that the recommendation by the Adhoc Committee on Review of Chapter 9 and associated institutions, was that appointment of commissioners be staggered to avoid losing all expertise in the Institutions at the same time.  However, if staggering of office terms of commissioners was considered, the methodology must be given serious consideration. An alternative was for Parliament to determine terms of offices of commissioners ab initio from point of appointment.

Mr Labuschagne replied that this was an issue that needed further consideration. The proposal by Ms Smuts presented the possibility of a discriminatory argument for commissioners whose terms of office were less than their counterparts.

Ms Smuts replied that the argument for discrimination could not be upheld where it was a provision of law- hence the need to include it in the Bill.

Mr Jeffery opined that perhaps it was advisable to let the staggering of appointments occur naturally- where vacancies existed and were filled the occurrence of a new term of office different from other existing members gave rise to the natural occurrence of staggering.

Ms Smuts disagreed with the provision of Clause 5 (5) of the Bill which provided for the appointment of acting members on the Commission.

Mr Labuschagne replied that there was indeed a need to reconsider this provision.

Ms Smuts remarked that persons should not be allowed to serve on any independent bodies, particularly Chapter Nine institutions, where political affiliations existed. It was undesirable to appoint persons to be members of the Commission directly to the Parliament as envisaged under Clause 5 (8) of the Bill and there was a need to move away from this approach.

Mr Labuschagne replied that the Committee needed to consider this issue. It was assumed that in its consideration, the Committee would invite public comments.

Ms Smuts remarked that by virtue of constitutional provisions, it was the duty of the Commission to require reports from government departments on the progressive realisation of the socio economic rights. Was it not desirable to include this in the reports to be provided by the Commission to the National Assembly under Clause 19 of the Bill?

Ms Smuts suggested that the Chairman and Vice Chairman of the Commission be appointed by Parliament and not the President as currently envisaged under Clause 6 of the Bill.

Mr Labuschagne replied that this provision was informed by the opinion that since the President appointed members of the Commission, then it should naturally follow that he appointed the Chairperson and Deputy Chairperson.

Ms Smuts responded that the President only appointed because Parliament had not been charged with powers to do so. There was a need to bring all Chapter Nine institutions under one conceptual umbrella and set a generally applicable standard.

Mr Jeffery suggested that a provision be made for Parliament to advise the President on the appointment of fulltime and part time members of the Commission.

Ms Pilan-Majake responded in relation to part time members that there was need for flexibility on the quality of commissioners to ensure that high quality personnel were appointed as full time members of the commission.

The Chairperson opined that this was an issue for further debate.

Ms C Pilane-Majake (ANC) responded that it was more desirable to let commissioners elect the Chairperson and Deputy Chairperson to ensure a more harmonious working relationship within the members of the Commission.

Ms Smuts referred to the defrayal of expenditure envisaged under Clauses 21 (2) and (3) of the Bill and remarked that it had been recommended by the review committee that revenue for Chapter Nine institutions were not routed through Ministries, as this made them agencies of the Ministries. A report by the Adhoc Committee on Review of Chapter 9 and associated institutions had stated that budget of Chapter Nine institutions must sit in Parliament’s vote- was this the intention in drafting Clauses 21 (2) and (3) of the Bill.

Mr Labuschagne responded that while it was understood, the report referred to was yet to be approved by the National Assembly, to what extent therefore could it be relied upon with regard to the provisions of the Bill.

Ms Smuts responded that while the sentiments of the Department were noted this was an issue to be ultimately decided upon by the Committee.

Ms Smuts referred to Clause 23 of the Bill and remarked that it was ridiculous to criminalise the defamation of the Commission or the staff of the Commission.  While due regard was to be had to the respect of the image of the Commission, there was also room for free speech within a constitutional democracy like South Africa and this provision particularly posed a challenge at inquisitorial hearings.

Mr Labuschagne replied that the provision was duplicated from the existing Act.

The Chairperson responded that there was a need for change of this provision with good reason.

Ms Pilane-Majake remarked that this was also connected to the logistical arrangement with the office of the Speaker.

Ms Smuts remarked with concern that Clauses 18 (1) and (3) were very unusual provisions and asked what informed the provisions.

Mr S Swart (ACDP) added that Clause 18 in effect turned the Bill into a Money Bill and should be tabled before Parliament by the Minister of Finance. Why should refund to persons be accessed through the National Revenue Fund?

Mr Labuschagne replied that the existing Act provided that these kind of expenditures be paid from state funds and this was the reason for introducing the Minister of Finance into the scheme.

Mr Swart responded that the expenses referred to in the clause should come from the coffers of the Commission, similar to the practice in other government departments.  The budget of the Commission should have provision for litigation expenses. ‘State Funds’ referred to the departmental budget as appropriated by Parliament.

Ms Smuts referred to Clause 16 (2) (b) (i) of the Bill and questioned if the Commission needed powers to compel persons to answer self-incriminating matters.

Ms Smuts questioned whether the Commission had over the past made use of the search and seizure provisions in its current Act and whether it was necessary to still include this in the Bill.

Mr Jeffery remarked that the Commission was already under serious financial constraints; appointing 11 Commissioners as envisaged under Clause 5 of the Bill would add further strain to the already stretched budget of the Commission.

Mr Jeffery remarked that part time commissioners were useful if regarded in terms of the expertise they brought to the Commission.

Mr Jeffery referred to the definition of ‘human rights’ in the Bill and questioned what was meant by ‘relevant international and regional human rights instruments’; although it might be assumed this meant ratified instruments only, the use of the word ‘relevant’ was debatable.

Mr Jeffery referred to the definition of ‘organ of state’ and remarked that it was preferable to limit the definition to the constitutional definition in Section 239 of the Constitution as this was sufficient.

Mr Jeffery noted that the challenge with the filling of vacancies arose from the practice where the National Assembly waited for the Minister to inform it officially about the vacancy in the Commission and this gave rise to delays. A provision in the Bill should be inserted to ensure the National Assembly filled vacancies as soon as it was aware of the vacancy.

The Chairperson suggested that an alternative was to require the Commission to advise Parliament directly of any vacancy arising in the Commission.

Mr Swart stated that it was necessary to reconsider the costing of the Bill and this was also dependent on the final composition of the Commission.

Mr Swart referred to Clause 8 (3) of the Bill and remarked that it might not always be practicable to fill all vacancies within six months.

Mr Labuschagne responded that the issue would be further considered.

Mr Jeffery added that the six months requirement became unnecessary if the vacancy was to be filled by Parliament. The Bill only needed to state that the position be filled without delay.

Mr Jeffery suggested that the requirement to fill vacancies within six months be expunged and instead the National Assembly be required to fill the vacancy without any communication on the vacancy received from the Minister.

Mr Jeffery referred to clause 13 of the Bill and remarked that there was a need to reconsider the relationship between the Commission and the National Council of Provinces (NCOP) in the Bill. It might be appropriate to include the NCOP as one of the institutions the Commission was empowered to approach.

Ms Pilane-Majake remarked that the role of the office of the Speaker of the National Assembly was not properly articulated in the Bill; Chapter Nine institutions should report to Parliament through the Office of the Speaker.

Ms Pilane-Majake expressed concern on the proposal to increase the number of commissioners to 11; it was too high and costly. In terms of best practices, other countries had trimmed down the number of commissioners; for instance, the Canadian Human Rights Commission only had the Chairperson and Deputy Chairperson as full time members of the Commission, all other members were volunteers. Further, there was a need to clearly articulate the role of commissioners and performance contracts for each commissioner executed.

Ms Pilane-Majake remarked that the Bill did not clearly articulate the procedure for tabling the Commission’s report before the National Assembly.

Ms Pilane-Majake stated with concern that the provisions of the Bill should not override the Public Finance Management Act (PFMA) and no clause in the Bill clearly spelt this out. This was important because some of the challenges of Chapter Nine institutions stemmed from the wrong impression that the establishing Acts of these institutions were superior to the PFMA; commissioners thus came up with arrangements which conflicted with the provisions of the PFMA.

Ms Smuts referred to clause 21 of the Bill and remarked that with regard to the PFMA, the confusion arose between the head of the Commissions and the Chief Executive Officers of the Chapter Nine institutions; as the CEOs took the view that beyond being the responsible accounting officers, they were responsible for the running of the institutions. A regulation later issued had cleared up the misunderstanding and a whole chapter in the PFMA dedicate to Chapter Nine institutions.

Ms Pilane-Majake remarked that it was necessary to clearly outline the resignation procedure or persons highlighted on the nomination list to the National Assembly.

Mr Jeffery responded that based on the provisions of the Bill nomination to the National Assembly was deemed a resignation.

Ms Pilane-Majake remarked that there was a need to align the Acts of all Chapter Nine institutions.

Adv L Adams (COPE) remarked that under the current dispensation, the Commission reported both to the Parliament and President on a quarterly basis. In the Bill, reporting was to only one of the Houses of Parliament- the National Assembly- and only on a yearly basis; what informed the disparity?

Mr Jeffery explained that the requirement to report to the National Assembly was based on the consistency from the current Constitution.

Mr Labuschagne added that it was considered that reporting to the President was unnecessary and only overburdened the office of the Presidency, further the commission was only accountable to only the National Assembly and not the NCOP, and hence it reported only to the National Assembly.

Mr Jeffery remarked further that based on the provisions of Clause 13 of the Bill it was necessary to consider the relationship between the Commission and the NCOP, Provincial Legislature and Municipal Councils; especially with regard to findings on social reports.

Mr S Holomisa (ANC) remarked that the procedure for suspension of members of the Commission was not clearly spelt out under Clause 5 (10) of the Bill.

The Chairperson replied that the procedure was spelt out under Section 194 of the Constitution.

Mr Holomisa remarked that it should be clearly spelt out in the Bill also.

Mr Holomisa opined that he supported the proposal on appointment of seven full time members of the Commission.

The Chairperson thanked the Commission for the presentation and apologised for the short notice for preparation. The Committee moved to the next item on the agenda- consideration on the Magistrates’ reports.

Consideration of Magistrates Report

Report on Magistrate NE Ndamase

A few typographical errors were highlighted in the report. Mr Jeffery moved for the adoption of the report subject to amendment of the report.

The Chairperson thanked all present. The meeting was adjourned.