The South African Human Rights Commission presented its Strategic and Annual Performance Plan 2013. The Commission began with an overview of the Strategic Plan and Annual Performance Plan. The discussion on the Strategic plan commenced with a highlight on the vision, mission and values of the Commission as well as the approved organisational structure. The Strategic outcome-oriented goals of the Commission for the incoming financial year were to - Improve the quality of complaints handling; Improve the quality of monitoring, evaluation of and reporting on the realisation of human rights; Inculcate a culture of human rights through human rights advocacy; Strengthen organisational effectiveness and efficiency and; Improve communication and stakeholder engagement. Areas of priority identified for the Commission were - Protection of human rights through speedy and effective complaints handling system; Promotion of International, regional and local obligations; Consolidated and sustained performance levels at organisational, unit and individual levels; Capacity building and infrastructural development within the new structure and; Implementation of an outcomes approach to planning and reporting. The presentation further outlined the Strategic Objective of the Commission as follows - Promote compliance with international obligations; Position the Commission as the focal point for human rights in South Africa; Strengthen advocacy and human rights awareness raising; Advance the realisation of human rights; Advance the right to equality and access to information and; Improve the effectiveness and efficiency of the Commission. The Programme Structure of the Commission was divided into three areas of focus. Programme One which covered the promotion and protection of human rights, Programme Two was dedicated to research monitoring and evaluation and programme Three to administration.
The Commission discussed the budget overview for the 2013/14 financial year. The ideal budget requested from National Treasury for 2015/16 was R162 199 547; the budget allocated to the Commission by National Treasury was R115 999 000 for the 2013/14 financial year. The presentation highlighted the budget allocation for items within the Commission, indicating percentage increases and decreases from the prior financial year. The implication of funding constraints for the Commission was that it had to freeze thirteen posts amounting to R5.9 million most of which were in its research and human resources units which had an impact on the promotion and monitoring of its mandates. Further, the Commission had to find money from within its baseline allocation to fund office rentals and leases since the Department of Public Works (DPW) decided not to renew its leasing contracts. Consequently, it may have to consider closing down certain provincial offices in future if additional funding was not secured.
The Commission went further to discuss an overview of performance in Quarter Four of the 2012/13 financial year. 16% of its targets for the fourth quarter were not achieved, 67% of its targets were achieved and 17% of is targets were exceeded. The presentation highlighted the performance targets not achieved and the reasons for the variance as well as the major achievements of the Commission for the 2012/13 financial year.
In conclusion, an update on legal investigations of the Commission was presented. 79% of the cases handled by the Commission had been finalised, i.e. 7 033 out of 8 924 cases. 7 412 cases were received in 2012/13 financial year and 1 512 cases were carried over from 2011/12 to 2012/13. 1 891 cases were carried over from 2012/13 to 2013/14. A total of 159 appeals were received out of which 148 were finalised. An overview of the nature of complaints received by the Commission for the 2012/13 financial year indicated that complaints on just administrative actions (14%), equality (14%), labour relations (13%), arrests, detained and accused persons (12%) and human dignity (8%) were the top five highest complaints. A new interesting trend was complaints received on environmental matters (2%) for the 2012/13 financial year. There had also been an increase in the number of complaints received on children’s rights abuse from 2% in 2011/12 to 5% in 2012/13, as well as an increase in complaints on housing from 3% to 6% respectively.
Members remarked that it was disgraceful that the additional funding requested by the Commission had not been granted; prohibitive amounts were attributed to irregular and wasteful expenditure yearly within government yet a legitimate request for additional funding of the Commission was not granted. It had become imperative for Parliament to exercise its powers in the Money Bills Amendment Procedure and Related Matters Act (No. 9 of 2009) to guarantee additional funding for the Commission. Members referred to the top category of complaints to the Commission, particularly complaints on administrative acts, and asked for further explanation; was this due to non-performance by government departments or broader non adherence to administrative processes. Members referred to the Commission’s thematic focus on the right to food for the new financial year and noted that this right was a right of access; how did the Commission intended to achieve the fulfilment of this right for the citizenry. Members asked what reasons the DPW gave for its refusal to renew the rented office buildings of some of the Commission’s provincial offices as indicated in the presentation. Members remarked with concern on the recent spate of police brutality and questioned if training of cadets ended in the academy without continuous training programmes and asked further if the training programmes within the academy were geared towards enlightenment on constitutional democracy and the entrenchment of human rights.
South African Human Rights Commission Strategic and Annual Performance Plan 2013
The Chairperson welcomed all present and invited the South African Human Rights Commission (SAHRC) to begin.
The presentation commenced with initial introductory remarks from Adv Mabedle Mushwana, SAHRC Commission Chairperson, after which he indicated the desire of the Commissioners to briefly engage with the Committee on work done over the past financial year. He handed over to the Chief Executive Officer to continue with the presentation.
Mr Kayum Ahmed, SAHRC CEO, commenced the presentation with an overview of the Strategic Plan and Annual Performance Plan. The discussion on the Strategic plan commenced with a highlight on the vision, mission and values of the Commission as well as the approved organisational structure. Between 2010/11 financial year to the 2013/14 financial year, an overview revealed that the Strategic Plan of the Commission was geared towards a review of organisational goals between 2010/11 to 2011/12, a rethink in 2012/13 and consolidation in 2013/13 (see document for details). The Strategic outcome-oriented goals of the Commission for the incoming financial year was to- Improve the quality of complaints handling; Improve the quality of monitoring, evaluation of and reporting on the realisation of human rights; Inculcate a culture of human rights through human rights advocacy; Strengthen organisational effectiveness and efficiency and; Improve communication and stakeholder engagement. Areas of priority identified for the Commission were- Protection of human rights through speedy and effective complaints handling system; Promotion of International, regional and local obligations (including the International Coordinating Committee (ICC) Chair duties and other Network of African National Human Rights Institutions (NANHRI) and African Commission on Human and People’s Rights (ACHPR) activities); Consolidated and sustained performance levels at organisational, unit and individual levels; Capacity building and infrastructural development within the new structure and; Implementation of an outcomes approach to planning and reporting. The presentation further outlined the Strategic Objectives of the Commission as follows- Promote compliance with international obligations; Position the Commission as the focal point for human rights in South Africa; Strengthen advocacy and human rights awareness raising; Advance the realisation of human rights; Advance the right to equality and access to information and; Improve the effectiveness and efficiency of the Commission. The Programme Structure of the Commission was divided into three areas of focus. Programme One which covered the promotion and protection of human rights, Programme Two was dedicated to research monitoring and evaluation and programme Three to administration. Each of these programmes incorporated further sub units (see document). The presentation also highlighted the alignment of the Commission’s strategic objectives with the programme structure.
The discussion on the Annual Performance Plan (APP) reviewed in details the six identified strategic objectives. Strategic Objective One under the APP was to Promote compliance with International Obligations and the targets under this objective included- Participation in 2 ICC, 2 NANHRI and 2 ACPHR activities; Completion of Annual International and Regional Human Rights Report by 30 June 2013 and; 100% Implementation of Annual SAHRC Action Plan based on outcomes of 28 international and regional activities, including ICC and NANHRI. This was a new approach taken by the Commission from simply attending international engagements to consideration and implementation of attendance at the international engagements. Strategic Objective Two was to Position the Commission as the focal point for human rights in South Africa. Targets under this objective included- Hosting 82 stakeholder engagements; 100% development of 2014/15 Plan for Human Rights Clinics; Participation in 15 parliamentary meetings; 100% implementation of Terms of Reference for the Forum of Institutions Supporting Democracy (ISD); convening 14 Section 5 Committee meetings; finalising 85% of complaints; 100% implementation of litigation strategy; 100% review of stakeholder relations; 100% implementation of Annual Media Plan and; production of12 Electronic Newsletters. Strategic Objective Three was to strengthen advocacy and human rights awareness raising and the targets under this objective were- Hosting nine provincial human rights calendar day events by 31 March 2014; Producing promotional material on Right to Food: Fact Sheet by 30 September 2013; Completing report on roundtable discussion on business and human rights by 31 March 2014; Hosting two national human rights events and; 100% implementation of annual external communication strategy and plan. Strategic Objective Four was geared towards advancing the realisation of human rights and the targets set under this objective included - Completing 2012/13 Performance Monitoring and Evaluation Report by 30 June 2013; Completing mid-term 2013/14 Performance Monitoring and Evaluation Report by 31 December 2013; Completing 2012/13 Section 184(3) Report by 30 June 2013; Completing Strategic Focus Area Report by 31 March 2014; Publication on Water and Sanitation by 30 September 2013; Developing Draft Matrix for 3 Economic and Social Rights areas by 31 March 2014 and; 100% submission on relevant draft legislation by deadline. Strategic Objective Five was to advance the right to equality and the right to access to information and targets were to complete the standard reports that were annually completed (see document). Strategic Objective Six was to optimise the effectiveness and efficiency of the Commission and the presentation highlighted details of the targets set under this objective (see document).
The Second part of the presentation discussed the budget overview of the Commission for the 2013/14 financial year. The ideal budget requested from National Treasury for 2015/16 was R162 199 547; the budget allocated to the Commission by National Treasury was R115 999 000 for the 2013/14 financial year. The presentation highlighted the budget allocation for items within the Commission, indicating percentage increases and decreases from the prior financial year. There was an 8% increase in the allocation to personnel due to new appointments and restructuring of the organogram of the Commission. A 26% increase was recorded for administration and supply chain management due to the Department of Public Works (DPW) refusal to pay for the renewed leases on some provincial office buildings of the Commission; the Commission had to take on the cost of these leases and this impacted hugely on the allocation. There was a 76% increase in the allocation to information technology (IT) and this was due to the purchase of the new Electronic Case Management (ECM) System. A whopping 226% increase accrued to legal services and this was to ensure that the Commission was properly empowered to execute its mandate. To further reduce costs and ensure sufficient funding on legal services, the Commission had entered into agreements with Legal Aid South Africa and Centre for Applied Legal Service at the University of the Witwatersrand (Wits). The implication of funding constraints for the Commission was that it had to freeze thirteen posts amounting to R5.9 million most of which were in its research and human resources units which had an impact on the promotion and monitoring of its mandates. Further, the Commission had to find money from within its baseline allocation to fund office rentals and leases since DPW decided not to renew its leasing contracts. Consequently, it may have to consider closing down certain provincial offices in future if additional funding was not secured.
The presentation further discussed an overview of the Commission’s performance in Quarter Four of the 2012/13 financial year. 16% of its targets for the fourth quarter were not achieved, 67% of its targets were achieved and 17% of is targets were exceeded. The presentation highlighted the performance targets not achieved and the reasons for the variance (see document). Highlights of achievements for the Commission in the 2012/13 financial year were- The organisation of nine provincial and one national hearing on water and sanitation; Launch of the Charter on Children’s Basic Education Rights- South Africa is the third country in the world after Ireland and United Kingdom (UK) to develop such a charter and its charter remains the best and most developed of the three; 363 media engagements; Chaired the Forum for Institutions Supporting Democracy (ISD)- the forum met on a quarterly basis; Implemented an electronic case management system; Implemented an electronic leave management system; Implemented an electronic procurement system.
In conclusion, an update on legal investigations of the Commission was presented. 79% of the cases handled by the Commission had been finalised, i.e. 7 033 out of 8 924 cases. 7 412 cases were received in 2012/13 financial year and1 512 cases were carried over from 2011/12 to 2012/13. 1 891 cases were carried over from 2012/13 to 2013/14. A total of 159 appeals were received out of which 148 were finalised. The presentation gave a breakdown of investigations finalised per province over the 2012/13 financial year (see document). Engagement with the least performing provinces had revealed that some of the challenges faced included large number of cases carried over, poor performance of officials and insufficient funding to meet mandates. The head of the legal team and the Chef Operating Officer planned visits to these provinces to assist with the challenges and ensure better performance in the incoming financial year. An overview of the nature of complaints received by the Commission for the 2012/13 financial year indicated that complaints on just administrative actions (14%), equality (14%), labour relations (13%), arrests, detained and accused persons (12%) and human dignity (8%) were the top five highest complaints. These complaints had remained in the top five for the last three financial years although varying in ranking. A new interesting trend was complaints received on environmental matters (2%) for the 2012/13 financial year. There had also been an increase in the number of complaints received on children’s rights abuse from 2% in 2011/12 to 5% in 2012/13, as well as an increase in complaints on housing from 3% to 6% respectively. The presentation ended with an overview of the special projects by Commissioners.
The Chairperson thanked the Commission for the thorough presentation and invited Members to engage with representatives from the Commission on the presentation.
Mr S Swart (ACDP) asked whether the Commission received any cooperation from the ISD and whether the ISD assisted with ensuring compliance from other departments. Did the Commission exercise its powers of subpoena on departments for non-compliance?
Adv Mushwana responded that the Commission maintained good working relationship and cooperation with the ISD. There had not been a lot of activities however besides normal correspondence on budgetary issues and meetings, there was a need to improve on the duties of the ISD and a meeting with the Speaker had been requested to this extent.
Mr Swart remarked that it was disgraceful that the additional funding requested by the Commission had not been granted; prohibitive amounts were attributed to irregular expenditure yearly within government yet a legitimate request for additional funding of the Commission was not granted. It had become imperative for Parliament to exercise its powers in the Money Bills Amendment Procedure and Related Matters Act (No. 9 of 2009) to guarantee additional funding for the Commission and this was an issue the Committee needed to deliberate further upon.
Mr Swart referred to the Commission’s discussions with the office of the Chief Justice (CJ) and questioned whether it did not create a conflict of interest on the Commission’s part to set up the equality courts and yet be litigants at the same court. Ms M Smuts (DA) also referred to the Commission’s interaction with the Equality Review Committee and questioned whether in its opinion the committee was functional and had any achievements.
Adv Mushwana explained that while he chaired the Equality Court Review Committee, the CJ was generally responsible for training; hence, meetings with the CJ were geared toward a review of the training aspects. The committee was difficult to manage as half of the time, terms of offices of the members were expired and it took a lengthy time to fill the vacant positions. The committee was not functioning at its optimum. The composition of the committee was also problematic due to the schedule of members of the committee. Further, there were no provisions on the mode of appointment of members of the committee or on interviews for prospective members of the committee.
Mr Swart further questioned if any member of the Portfolio Committee on Justice and Constitutional Development was a member of the review committee.
Ms M Smuts (DA) noted that one of the research assistants to the Committee was assigned to the review committee.
Mr Swart remarked that it was important the Committee got constant feedback.
Mr Mushwana noted that the review committee was virtually non-functional. It was unlikely there was any conflict because of engagements with the CJ as the only issue being considered was training.
Mr Swart requested that the Commission explained to the Committee its role and involvement in the Marikana Commission.
Adv Mushwana responded that the Commission was pleased to have taken part in the Marikana hearings as it brought an international perspective into the investigations through the expert witness it had called to testify on international policing trends. The socio economic rights of the miners were also a consideration for its participation in the hearings. Beyond the protests and the shooting that ensued, a proper consideration of what led to the issues was the main focus of the Commission.
Mr J Jeffery (ANC) responded that the issue was not with the involvement of the Commission in the Marikana matter per se. The concern was the decisions and findings of the Commission and the appropriateness thereof in the Marikana matter as well as in the Tatane matter.
Mr Ahmed remarked that the involvement of the Commission in the Marikana matter was fully explained in a document which would be circulated to all Members.
Ms Smuts complimented the Commission on its A-rating from the United Nations and asked when it was received.
Mr Ahmed replied that it was received in the last quarter of 2012/13, particularly November 2012.
Ms Smuts echoed Mr Swart’s sentiments on the declined request for additional funding and committed to assisting the Commission access the additional funds it needed.
Ms Smuts referred to the Commission’s ‘right to food’ as the focus for the new financial year and noted that it was a right of access; she asked how the Commission intended to achieve the fulfilment of this right for the citizenry.
Adv Mushwana replied that the Commission was of the opinion that the right to food was a good choice; it however was not necessarily the main focus but the theme for the year. The Commission had decided to have a theme for every area; there were several other areas which received commensurate attention and the right to food was not going to be focused on to the detriment of other rights.
Ms Pregs Govender, SAHRC Deputy Chairperson, added that the theme did not deny the continuance of other works in other areas. Last year when the Commission had similarly chosen a theme, Commissioners had presented on the work done on the focus area and also on other areas, to highlight the indivisibility and intersections of all rights. It was hoped that this would further be entrenched within the Commission and would link accountability on the local municipal levels and at the national departmental levels. In the last financial year, the Commission had encouraged public participation and key findings that emerged from the public participation included a lack of coordination between governmental and departmental levels and a lack of community participation. In the Western Cape alone, statistics showed that over 80% of the population were food insecure and this pattern was repeated through most urban centres. The devastating statistics had prompted the need to address this through the Commission. Not much information was retrieved from farmers in rural areas because seeds production was conducted majorly by two global corporations in South Africa; furthermore, farmers were not allowed to store seed due to the patented rights on theses seeds. A lot of the seeds were also genetically modified and despite worrying statistics, South Africa remained the only country that allowed over 80% of her food to be genetically modified. South Africa recognised the International Covenant on Economic Social and Cultural Rights (ICESCR), hence the need for the Commission to implement it through the thematic focus.
Ms Lindiwe Mokate, SAHRC Commissioner, in addition remarked that over a year ago, three children died in the North West in the search for food. The right to food touched on the question of intersecting inequalities and multiple deprivations. Other rights were also intertwined with this right.
Mr Danny Titus, SAHRC Commissioner, further added that the Commission had to expand human rights across the spectrum and show the indivisibility of these rights, including socio- economic rights.
Ms Smuts referred to the top category of complaints to the Commission, particularly complaints on administrative acts, and asked for further explanation; was this due to non-performance by government departments or broader non adherence to administrative processes.
Adv Mushwana explained that most of the complaints on administrative acts related to the Home Affairs repatriation and detention centre and the alleged wrongful detention of persons at the centre.
Ms Smuts remarked that she was pleased the Commission had finally installed its Electronic Case Management system and asked for details on the system.
Mr Ahmed replied that the ECM allowed the electronic tracking of cases and uploading of documents. The system was also time line sensitive and sent automatic emails to line managers which got escalated up to the CEO’s level when the deadline for resolving cases had not been met. The system began operation in February but was fully rolled out in April.
Mr Jeffery thanked the Commission for the coherent report and requested that the Commission elaborated on the inability of its Commissioners to travel to attend to issues due to budgetary constraints; what was the current status quo? There was a need for the Committee to engage with the Parliamentary Budget Office with regard to the Commission’s request for additional funding.
Mr Ahmed replied that that the APP had explained the Commission’s attempt to build in more provision into the budget for travel of Commissioners; however, the amount billed was still insufficient for every Commissioner to go to every province.
Mr Jeffery remarked with disapproval that the Commission’s letter to the Committee was quite unfortunate; while the Committee was sympathetic towards its budgetary challenge, it was out of order to threaten not to attend Parliamentary briefings until its request for additional funding had been granted.
Mr Ahmed explained that toward the end of last year the Commission had received an influx of invitations from other Committee’s in Parliament and it became concerning for the Commission how it was to fulfil the obligations with its limited funding. The letter was not directed at the Committee in particular and the Commission was always delighted to engage with the Committee.
Ms Govender suggested that perhaps coordination between the Committee and other parliamentary committees would be helpful.
Mr Jeffery asked how the Commission addressed issues of wastage and overlap of functions with other bodies.
Adv Mushwana responded that the Commission was working on initiatives for cooperation with other bodies. Part of the Terms of Reference (ToR) of the ISD was ensuring that all bodies worked in collaboration - the ISD had just adopted the ToR on how to achieve this in order to avoid any overlaps.
Mr Jeffery referred to the Tatane case and asked how the Commission conducted its investigation. Was it appropriate for the Commission to conduct investigations and make findings on the matter considering a criminal trial process was already underway? This impacted on the judicious use of resources by the Commission. He further remarked that it was commendable that the Commission had revised its position on the Marikana issue. With regard to both cases, was this the best use of resources? The involvement of the Commission should be on broader issues which directly impacted on citizens’ rights such as police brutality and not specific cases where it had no powers to actually make the decisions that mattered.
Mr Jeffery asked how the decision to engage the Legal Resources Centre (LRC) on the Marikana case was taken - at a meeting of Commissioners or was it an administrative decision?
Adv Mushwana responded that the decision was taken by Commissioners at a meeting held to deliberate on the issue - the minutes of this meeting were available. It was not initially clear to the Commission the level of engagement of parties to the Marikana issue. Immediately the issue had been raised, it had decided to formulate ToR of the Commission after which it pulled out upon its discovery of the LRC’s involvement.
Mr Swart questioned what the Commission’s relationship with the Centre for Applied Legal Services (CALS) was in the Marikana matter.
Adv Mushwana responded that CALS was the advocate instructed by the Commission to represent it in the Marikana matter. Given the magnitude and sensitivity of the case, it was the preferred option to instruct a private advocate but in the light of its budget constraints, the Commission had to seek the services of legal aid clinics. The use of pro bono situations to render services of this importance for the Commission compromised the integrity of the Commission and was undesirable.
Ms C Pilane-Majake (ANC) asked what principles guided the Commission in its handling of high profile matters with diverse stakeholder interests.
Adv Mushwana responded that with Marikana, two complaints had been lodged with the Commission. In considering high profile cases, the management of the Commission met to consider the merits and demerits and the type of investigation such a case would require. A principal consideration would be for the Commission not to lose its rights to investigate the case by the reason of its involvement. It was due to the Committee’s caution that the Commission had re analysed the Marikana situation and reviewed its decision. For ordinary complaints which were not high profile, the legal team of the Commission investigated the cases and took the necessary action. For high profile cases, the Commissioners met to deliberate and take decisions. This had been the pattern for the Marikana as well as Tatane case which both bordered on issues that arose as a result of the citizen’s rights to protest. The Independent Police Investigative Directorate (IPID) was responsible for the prosecution of the policemen involved in these cases; the Commission was geared towards exploring the violated rights in the cases. In the Tatane case for instance, the Commission had made a finding that brutal force had been used by the police in quelling the protests and had placed the responsibility for this on the entire police department and not just a singular policeman; the criminal case in the Tatane issue went to the particular police involved.
The Chairperson requested a copy of the judgement in the Tatane matter; it was the understanding of the Committee that the Magistrate in reading his judgement had harsh words for the Late Mr Tatane’s conduct during the protests and the motivation for this action of the Magistrate was not understood.
Mr Titus responded that the Commission had the record of proceedings but was in the process of translating it as the proceedings had been conducted in Afrikaans.
Mr Jeffery questioned what form of investigation the Commission had made into the Tatane matter before it had decided on its findings.
Ms Lindiwe Khumalo, SAHRC Chief Operations Officer, responded that the investigations had been a desktop study of reports. The Commission had prepared its findings based on this and invited the SAPS to comment on its findings before publication but the South African Police Service (SAPS) had declined from responding. The Commission had been careful to ensure court proceedings would not impacted as a result of the findings in its reports.
Mr Swart read to the Committee a portion of the summary of the Commission’s findings which indicted the Police as having used excessive force in quelling the protests.
Mr Jeffery expressed extreme disapproval on the summary read by Mr Swart; how could the Commission make a finding that the police used excessive force when this was a factual issue. It was inappropriate to make such a finding based on study of desk top reports; how could the Commission make such crucial finding without investigating witnesses and carrying out proper field investigations. Both with the Tatane and Marikana matters the Commission had employed inadequate mechanisms to make its findings and had not effectively channelled its use of resources. The findings by the Commission were inappropriate.
Mr Titus vehemently disagreed with the assertions by Mr Jeffery. In making the findings, the principal consideration of the Commission had been whether or not human rights were violated. The findings were an opinion of the Commission based on its Terms of Reference. The findings were distinctively steered away from formal court proceedings such that it was within the discretion of the court to either take the Commission’s findings into consideration in arriving at its decision or to totally ignore them. Whenever the Commission was requested to investigate a matter it had to make a finding on its investigation. The SAPS had been given an opportunity to respond and it chose not to. The Commission was of the opinion that it had not overstepped any of its powers by virtue of its findings.
Adv Mushwana cautioned that it might be impossible to reach an agreement on the issue. The finding of the Commission was a recommendation and not a final finding. The recommendation from its finding was for further training of policemen.
Mr Jeffery in response to Mr Titus remarked that the finding that excessive force had been used was a factual finding and while it may not weigh much in a court of law, in a court of public opinion such a finding had a lot of value attached to it. There was no reason for the Commission to have made such a finding without properly canvassing the issues, other than a desperate attempt by the Commission to be perceived as performing its duties. The refusal of the SAPS to respond was understood as it not wanting to lend credibility to issues that should have been the duty of other bodies to investigate rather than the Commission’s.
The Chairperson cautioned that it was inappropriate to debate issues which were taken under review.
Mr Jeffery suggested that the Portfolio Committee made strong recommendations that the Commission in future not make findings and spend resources on issues which judicial findings were to be made.
Mr Titus strongly disagreed with Mr Jeffery’s further remarks and stated that reputable organisations such as Amnesty International had been known to make similar findings on weighty issues such as this. The Commission had been making findings on issues from its inception and its findings were recognised as different from the findings of a court of law. The Commission was not a government body that had to refrain from making findings against state institutions but a Chapter Nine institution which was empowered as an Ombudsman by virtue of the Constitution to protect the citizenry from the inappropriate use of state powers through the organs of the state.
Mr Jeffery replied that the Commission was not an non-governmental organisation (NGO) and therefore its analogy was irrelevant; it however highlighted the confusion within the Commission on the limits within which it ought to operate.
Mr Swart remarked that there was a need for the Commission to exercise some caution in its findings; it may find itself called in as witness in civil matters for findings it had previously made and this was a position it should not find itself.
Ms Pilane-Majake remarked that the findings of the Commission were indeed worrisome particularly when weighed with the eventual judgement of the Court. There was a need that clear Terms of References be developed on issues such as this to guide the Commission in its findings. What message was the finding of the Commission sending if they conflicted with other government bodies; it was important that the messages from all systems were coherent and to achieve this, the Commission must have principles and Terms of References which guided the process. Timing was also important in communicating some of its findings and the Commission must not always be seen to run into situations and make hasty findings in order to be perceived as performing its duties.
Ms D Schäfer (DA) remarked that she agreed with Ms Pilane-Majake’s observation on timing. Did the Commission use its powers of subpoena to get the SAPS to respond to its findings before publication? The findings made in the Tatane case undermined the Commission. With regards to the dispute on what the status of a finding by the Commission was, it might be helpful if the ISD gave the Committee a report on the status of the Ombudsman's recommendations.
Adv Mushwana responded that the SAPS had not been subpoenaed. By virtue of the Constitution, even without the subpoena, the Police were bound to assist the Commission in its investigations. Upon their refusal to be of assistance, it was within the Commission’s discretion to subpoena or simply make its finding.
Mr Jeffery remarked that the matter be considered further by the Committee; the Commission needed to be cautioned against making factual findings where other judicial findings were to occur.
The Chairperson questioned the appropriateness of making findings where a criminal case was pending.
Mr Jeffery referred to the analogy of Amnesty International and remarked that it was an NGO and had no powers of subpoena. The Commission was a Chapter Nine Constitutional body and therefore the value of its decisions was greater than any NGO’s. It was not helpful for the Commission to make factual findings when there were other judicial bodies available to do this.
Mr Titus replied that perhaps a more suitable time to fully discuss the issue with the Committee was needed. It was believed that the position of Mr Jeffery was not the same view held by all Members of the Committee. The analogy with Amnesty International was to buttress that the Commission’s finding should have more value. Commissions grew into credibility and the same applied to the Commission and the measure of credibility which should be applied to its findings.
Ms Smuts categorically corrected Mr Titus. Mr Jeffery had correctly expressed the views of the Committee and it was presumptuous to assume otherwise. What was the use of the powers contained in the Commission’s Act if they were not effectively used when situations warranted. The Commission had no quasi-judicial powers to make such findings as it had and this must be clearly understood.
Mr Ahmed responded that the Commission used its powers of subpoena from time to time and would consistently use it.
The Chairperson urged the Commission to further discuss the issue as raised by Members within the Commission.
Mr Titus explained that the assumption referred was that the Commission had acted only in a bid to be seen; it was not believed that all members agreed with this assumption.
Adv Mushwana further replied that the Tatane case was investigated initially at the Free State office of the Commission. The Commission did not rush in to make findings- the issue was thoroughly debated and the Commission had acted in what it believed was right. The Commission could have taken the easier route and done nothing on the rights violations which had been brought to its attention. When the Commission took action on the issue, other responsible institutions followed suite.
Mr Swart noted that the Committee needed to be fair in its engagement with the Commission. It had previously tasked the Commission for not taking action in a previous high profile case.
The Chairperson agreeing with Mr Swart’s observation questioned whether the new direction to the Commission should be for it to step back and not make any findings on matters pending before a criminal court.
Mr Jeffery queried the Commission’s focus on food security for the forthcoming financial year- was police brutality not a more topical and suited issue to focus on.
Adv S Holomisa (ANC) asked what reasons the DPW gave for its refusal to renew the rented office buildings of some of the Commission’s provincial offices as indicated in the presentation.
Mr Ahmed replied that from its inceptions, the DPW was responsible for negotiating and paying the Commission’s rents; this arrangement was entered into on the understanding that the DPW was in a better position to negotiate cheaper rents. It turned out that this was not the case- the Commission paid cheaper for a larger building it acquired for its head office when it took over from the DPW. The rents on some of the Commission’s provincial offices had expired and DPW had indicated that it would not be renewing the rents. The Commission had asked if the DPW can devolve the funds for the rent to it- the DPW had agreed to this arrangement in principle but no formal commitment had been entered into.
Mr Jeffery asked whether the Commission had identified the provincial offices it intended to close.
Mr Ahmed replied that it had not yet been formally considered in the Commission. Most likely it would be smaller provincial offices; unfortunately these were areas where the services of the Commission were really required.
Ms Schäfer asked whether the DPW had stopped paying for the rents.
Mr Ahmed replied in the affirmative; DPW had stopped paying the rents and the Commission had to take up payments of the rents.
Mr Jeffery asked how many provincial offices had been affected by the decision of the DPW.
Mr Ahmed replied that three provincial offices were affected - Free State, Limpopo and Mpumalanga.
Mr Peter Makaneta, SAHRC Chief Financial Officer, added that the leases for the three offices negotiated with the DPW had ceased. The DPW handled the leases on behalf of the Commission and billed the Commission for the leases along with a 5% handling charge. The Commission had written to National Treasury to move its allocation for rents away from the DPW and pay it directly into the coffers of the Commission.
Mr Jeffery clarified whether the Commission paid the rents or the DPW paid or if the DPW was merely performing a facilitation function on behalf of the Commission.
Mr Ahmed clarified that DPW did not bill the Commission for the rents.
Ms Mokate further explained that the Commission was not the only institution for which the DPW paid rents. The DPW had however stopped the practice based on National Treasury rules issued which required all institutions to apply directly to National Treasury for their building allocations as part of their budgets or have the option of the equivalent amounts directed to the DPW account.
Mr Jeffery sought further clarification- did the National Treasury allocate the money for the buildings to DPW or did the DPW rent the buildings and not bill? If the latter was the case, then there was no unfairness in the actions of the DPW. More information was required to clarify the issue.
Ms Pilane-Majake clarified that Ms Mokate’s explanation was right and was occasioned by with Treasury’s new direction that all departments must budget for their own accommodation.
Ms Govender added that in the Commission’s engagement with another parliamentary committee, it was indicated that there were several vacant government buildings; this was an issue for the Committee to consider in the resolution of the issue.
The Chairperson remarked that the trend of empty government buildings and yet spending exorbitantly on rented buildings was not a new trend and was disgraceful; tax payers were losing as a result of the wasteful spending. It was a trend that needed to be addressed.
Mr Ahmed further remarked that in its discussions with Legal Aid South Africa, LASA had indicated that it had purchased its buildings and this was cheaper in the long run and advised that the Commission considered amending its legislation to empower it purchase landed properties.
Adv Holomisa asked what bodies were involved in the preparation of and draft of the Charter on Basic Education.
Ms Mokate replied that the process started with the Commission and an advisory committee. Provincial departments, civil society organisations, NGOs, the United Nations Children's Fund (UNICEF), other Chapter Nine Institutions and Parliament had been involved in the process. School governing bodies had also been involved but it was observed that of the nine provinces, only two provinces had trained their governing bodies, hence their impact on the process was not impressive. Consultative workshops were also held in the process and there were inputs from the research section of Parliament.
Adv Holomisa asked how many appeals had been won and how many lost in the appeals that had been finalised.
Mr Ahmed replied that of the 148 finalised appeals 20 were upheld by the Court and 128 were dismissed.
Adv Holomisa asked how the Commission’s campaign on the right to food was to be effective.
Ms Pilane-Majake expressed concern on the ISD; what were the outcomes of the process of the Commission’s engagements with the ISD and what participation did civil society have in these engagements.
Mr Ahmed replied that civil society did not participate in this forum.
Ms Pilane-Majake referred to the myriad of problems the society was plagued with including poverty, rape and sexual abuse of women and children, drug abuse, unemployment etc and asked how the Commission had positioned itself to help South Africans in the management of these issues and gain the freedom enshrined in the Constitution.
Ms Govender replied that the Commission due to the nature of its work regularly encountered these issues and sought to address how they were interrelated and how it could proffer solutions through the execution of its mandate.
Ms Mokate added that the Commission got involved on a whole range of socioeconomic issues and constantly sought ways to address them.
Ms Pilane-Majake referred to the statistics per province on complaints lodged with the Commission and requested an overview on the capacity available in each of the provinces.
Mr Ahmed replied that Gauteng had the highest number of complaints and North West the lowest; the general trend was that complaints were proportionate to population size and caseloads were on track in all provinces except for KwaZulu Natal (KZN). Compared to its population size, KZN had very few complaints and it had been suggested that this could be attributed to the fact that majority of KZN’s population was based in rural areas and the provincial office of the Commission was based in the urban centre of Durban. A solution to this was piloting mobile clinics to visit rural areas.
Ms Pilane-Majake asked for details on the nine posts that had been frozen in the Commission; what was the nature of the posts and did the freeze have any negative impact on operations of the Commission?
Mr Ahmed replied that the frozen posts had severe impact particularly on the advocacy mandate of the Commission. It has also led to the Commission not having a fully-fledged structure and this was a major challenge for the Commission.
Ms Schäfer referred to the second strategic objective of the Commission an remarked that if the target of finalising 85% of complaints had not been met in the outgoing financial year why had the Commission set the target for the new financial year- what guaranteed it would meet this target?
Mr Ahmed remarked that a higher target was in fact preferable but given the constraints, it had been set at 85%. There was no excuse not to achieve this target- the target would be reviewed at the midterm review and adjusted accordingly.
Ms Schäfer asked what follow up actions the Commission carried out on its findings.
Ms Govender responded that the Commission sent its findings to Ministers and gave a timeframe within which it expected a response. Where no responses were received then the Commission invoked its powers of subpoena.
Ms Schäfer congratulated the Commission on its launch of the Charter on Basic Education and remarked on the importance of educating children.
Adv L Adams (COPE) asked what the latest communication of the Commission to the Minister of Basic Education had been and what the position of the Commission was on basic education particularly after its recent visit to schools in the Eastern Cape.
Ms Mokate replied that the Commission was in consultation with the nine provinces and had recently concluded hearings where all provinces except for the North West were represented. The Minister of Basic Education was not at the hearings but was represented by senior official from her department. The report on the visit to the Eastern Cape was being compiled- the situation was indeed unbearable. The visit to the Eastern Cape was necessitated because it had been under administration and there were gaps garnered in the report on the situation during the consultative public hearings.
The Chairperson congratulated the Commission on its achievements on its A-rating from the UN and the Basic Education Charter.
The Chairperson remarked with concern on the recent spate of police brutality and questioned if training of cadets ended in the academy without continuous training programmes and asked further if the training programmes within the academy were geared towards enlightenment of constitutional democracy.
Adv Mushwana responded that the Commission shared the concerns expressed by the Chairperson and had taken steps to address these issues. A meeting had been arranged with the Commissioner of Police to sort out these issues. In the past three weeks, the Commission had been actively involved in three different trainings within South Africa on police torture, which was aimed at teaching investigators how to investigate cases of police torture. The impression which the Commission had was that police brutality was part of a bigger systemic issue; hence it planned to conduct public hearings in order to address the issue.
Mr Titus added that the Commission was yet to meet with the Commissioner of Police but the planned meeting was amongst others, to evaluate training of the police and bring human rights paradigm back to the police service. More forceful options of subpoena were open to the Commission but it had chosen the route of engagement because it wanted access to police cells, provincial commissioners etc; the Commission presently had good relations with the provincial commissioner of Gauteng. Addressing the issues within the SAPS was a long term plan to bring human rights imperative into the police and there were no quick fixes.
The Chairperson questioned whether psychometric testing was carried out on prospective members of the SAPS to evaluate their personalities; it was worrisome that there seemed to be a number of persons within the police service who had no business being in the police service.
Adv Mushawana replied that the commission was recently called upon to address the security cluster in government and from deliberations at the meeting it was observed that there was an urgent need for human rights training for persons at the helm of affairs of security matters which could then cascade to lower levels.
The Chairperson agreed with the remarks by other Members that the request for additional funding should have been granted to the Commission. He pledged that the Committee would engage further with the budget office and invite the Chairperson of the Commission and other members of the Commission to be present at this engagement. He assured the Commission of the Committee’s support in ensuring it received additional funding even if it meant invoking the Money Bills Amendment Procedure and Related Matters Act 2009 to achieve this.
Adv Mushwana expressed the appreciation of the Commission towards the concerns expressed by the Chairperson and the Committee on its funding constraints.
In conclusion Ms Mokate further informed the Committee that the Commission was in the process of rolling out its child friendly complaint procedure. Upon its launch, children would be enabled to approach the Commission directly and lodge complaints in their own rights. There was a need to train personnel on the process of receiving children’s complaints however funding constraints posed a challenge.
Ms Mokate further informed the Committee that the Commission had expressed its disappointment in writing to the Minister of Basic Education on the recently published norms and standard.
Adv Mushwana referred to departments which were in contravention of S.184 provisions and stated that only two departments were implicated and were to be issued with subpoenas.
Ms Schäfer asked which departments.
Adv Mushwana replied that the departments of agriculture and social development.
Adv Mushwana further updated members on the status quo on his nomination to the ICC. The budget had been submitted to the Renaissance Fund and there were indications that the funds would be released.
Ms Smuts expressed concern on the availability of Adv Mushwana to oversee the Commission upon acceptance of the ICC position.
Adv Mushawana explained that the requested funds also covered employment of staff to help ease the burden of the workload and constant travelling.
The Chairperson thanked all for their presence.
The meeting was adjourned.
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- South African Human Rights Commission response
- SAHRC Cumulative Performance Report 1 April 2012- 31 March 2013
- South African Human Rights Commission Strategic and Annual Performance Plan Presentation
- SAHRC Summary of Strategic Plan (Year Three) and Annual Performance Plan (2013/14)
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