SA Human Rights Commission Bill & Legal Practice Bill: Commission's submissions

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Justice and Correctional Services

14 August 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The South African Human Rights Commission (SAHRC) presented the comments of commissioners on the South African Human Rights Commission Bill, B5-2013. SAHRC was recognised as having “A” status as a national human rights institution (NHRI) at the UN, and that in the most recent review of this status, certain comments and recommendations had been made by the International Coordinating Committee (ICC), which were also set out in the presentation. The commissioners had requested clarity on some of the definitions, and it was generally agreed that it was probably not necessary to repeat wording that was set out in he Constitution, but instead merely refer to the relevant sections, except in respect of clause 4, emphasising the independence of the SAHRC. The Committee pointed out an apparent anomaly in clause 17, which the drafters from the Department of Justice and Constitutional Development (the Department) would check. Commissioners suggested that it should be left to the SAHRC to decide on its seat in clause 3, since other Chapter 9 institutions did not have their seats decided upon by the President. Members noted that it may have cost implications, but were appreciative of the concerns around independence. Commissioners asked that the Bill spell out provisions in relation to outside interests and remuneration more clearly, with interests to be declared to the Speaker. SAHRC was in favour of retaining eleven commissioners, of whom seven or eight could be full-time, depending on budget. One Member suggested that the roles of commissioners perhaps needed to be more clearly spelt out, but this would be further debated by the Committee. The SAHRC would prefer to have a fixed term of tenure spelt out in the Bill, and did not support staggering of appointments. Whilst it recognised the advantages to having part-time commissioners, there were administrative problems with this, and commissioners shared the Committee’s views also that acting commissioners were not desirable, and would support deletion of clauses 5(5), (6), and (7). It was happy to leave the final decision to Parliament on appointment of the Chair and Deputy Chair. The Committee Secretariat was asked to check on the Treasury regulations on who was regarded as the executive authority in a Chapter 9 institution. The SAHRC was satisfied that the ICC requirements around procedures for filling vacancies were covered. It suggested that the Independent Commission for the Remuneration of Public Office Bearers should determine the remuneration of commissioners, but staff salaries would be benchmarked against public service resolutions. In clause 13, commissioners had requested a reference to the NCOP or to “Parliament” (rather than the NA) because its work with socio-economic rights, enforced in the provinces, made it desirable to be able to approach the NCOP. A DA Member believed this should be extended also to provincial legislatures, to hold MECs to account. Members debated and agreed it was appropriate to retain the clause relating to approaching the President, which was a mark of the respect accorded to the institution. The SAHRC also noted that the ICC had recommended more specific inclusion of wording relating to its international obligations, and possibly wording reflecting portions of the Paris Principles, but Members thought clause 14 probably already covered this sufficiently. The Chairperson raised a question, in principle, whether any of the human rights institutions were dealing with overt breaches of human rights in countries where there were no such institutions. Members questioned if the SAHRC was able to monitor places of detention, and suggestions were made around some of the other proposed wording. Members also questioned the reference to “ all organs of state” and would debate the references and whether imperatives should be included. The commissioners were adamant that their powers needed to be retained, and the Committee asked which had been used. Finally, the commissioners requested inclusion of a clause that called upon the NA to facilitate establishment of a joint committee, or at least joint sittings to discuss the economic and social rights reports. Suggestions were also made in relation to staff. All the recommendations and comments were noted and would be further debated by the Committee.

The SAHRC was then asked to comment on what exactly it had wanted to see inserted in the Legal Practice Bill, under clause 84. The SAHRC confirmed that at the moment some of its employees were permitted to appear in court, under a broad interpretation by some of the law societies that equated it to legal clinics. This was not strictly within the definitions of the current legislation, and SAHRC would not be covered by the Bill as presently drafted, but wanted to ensure that this arrangement should continue. Members of the Committee raised the concerns that the Committee had around SAHRC holding a trust account, and the SAHRC confirmed that this was not its intention, and that it did not believe it was necessary to have Fidelity Fund coverage, as it would be covered by the State Liability legislation. 

Meeting report

South African Human Rights Commission Bill B5-2013: Commission’s submissions
Adv Lawrence Mushwana, Chairperson, South African Human Rights Commission (SAHRC) thanked the Committee for the opportunity to submit its comments on the South African Human Rights Commission (SAHRC) Bill, B5-2013, to the Committee.

Ms Judith Cohen, Parliamentary Liaison Officer, SAHRC, said that the slides she would table set out the discussions by the Commissioners of the SAHRC. They had considered previous submissions made over the years, as well as previous meetings with this Committee. Some matters had been raised by the International Coordinating Committee (ICC) of human rights institutions, which would be noted as she went through the presentation. She emphasised that the views of all commissioners were being presented, and that where they were unable to reach agreement, they were happy to leave the decision to Parliament.

By way of background, she noted that only 20 years ago, the Principles relating to the Status of National Institutions (the Paris Principles) had been formally adopted by the UN General Assembly. The current SAHRC Act was passed in 1995, when the Paris Principles were still young and had not been interpreted. The 20th anniversary celebrations of the Paris Principles showed how far countries, especially in Africa, had progressed. She noted that Adv Mushwana was the Chair of the ICC at the moment. It had become accepted in the UN that every country should have a national human rights institutions (NHRI) that would comply with the Paris Principles. In order to be recognised, NHRIs had to have their independence tested at a review that took place every five years. SAHRC retained its “A” status after the latest review in 2012, and its documents were formally adopted in May 2013. The SAHRC had appeared before the sub-committee of accreditation in 2012, and its documents were formally adopted in May 2013. Some recommendations had been made in regard to the legislation, and the SAHRC must therefore advocate for changes by bringing the recommendations to the attention of the Committee. The recommendations relating specifically to the legislation were set out in the attached document, entitled “ICC sub-committee on accreditation”.

In relation to the definitions, the SAHRC commissioners had proposed some changes, including clarifying the definitions of “commission” and “member”. Commissioners suggested that the word “commissioner” should be used throughout the Bill. It was proposed that a definition was needed for the Speaker.

The definition of “relevant”, in relation to human rights, had been discussed by the Committee. The SAHRC commissioners believed that this could be removed, and reference rather made to human rights instruments or law. It was suggested also that the definition of “organ of state” as set out in section 239 of the Constitution should be used in the Bill.

Mr S Swart (ACDP) noted that the Committee had suggested deleting the remainder of the phrase, after the words “human rights as set out in Chapter 2 of the Constitution”.

The Chairperson explained that the Committee thought the rest of the wording may be unnecessary.

Ms Cohen agreed that if there was reference made to Chapter 2, it was possibly not necessary to repeat all the wording.

Mr Swart said the Committee had also suggested that, in relation to the definition of “organ of state”, all words after “Constitution” could also be deleted.

Ms Cohen said that it was intended that the definition in section 239 of the Constitution should be used, and that would mean that the commissioners and Committee agreed.

Ms M Smuts (DA) asked if the SAHRC wanted to include all organs of state. She reminded the Chairperson that there were well over 1 000 of them.

The Chairperson said that he did not think there was a problem and the commissioners had not commented.

Mr Swart noted that in relation to “premises” in clause 17, there had been a suggestion that “any road” be taken out, as it did not fall within the normal reading of the word.

Ms Smuts thought that the reference to “roads” may have come in from the telecommunications law.

Mr Johan Labuschagne, Principal State Law Adviser, Department of Justice and Constitutional Development, said that he would look into it.

Ms Cohen proceeded to clause 3. This had been subject to much discussion and debate, and the conclusion reached was that the SAHRC should be able to determine its own seat. Currently, this was in Johannesburg, but should this change, the commissioners thought the decision was most properly to be taken by the SAHRC.

Adv Mushwana added that with other Chapter 9 institutions, the President would not decide on the seat.

Ms Smuts enquired if it was necessary to refer at all to the seat.

Adv Mushwana responded that it was set out in the current Act.

The Chairperson noted that it was included to avoid a challenge.

Ms C Pilane-Majake (ANC) pointed out that the seat also had financial implications. She asked if there was likely to be any problem, in practice, in dealing with the Presidency. If so, then perhaps the seat should be defined, without leaving this completely in the hands of the SAHRC.

Adv Mushwana said that perhaps it could be worded to reflect that the seat would remain where it was, until changed by the appropriate body.

The Chairperson said that he thought it appropriate to have the seat of the Commission in Johannesburg, as it created a certain distance from the traditional government setting of Pretoria.

Ms Cohen highlighted, from the Paris Principles, that the purpose of the funding was to enable a body to have its own premises and staff, to enable it to be independent of government, and not to be subject to any financial control which might affect its independence. The intention behind the suggestion was to allow the SAHRC itself to choose its own seat and have independence.

Ms Pilane-Majake was still worried that if it was left too open, there may be a financial implication, which could be problematic.

Adv Mushwana repeated that the commissioners had been of the view that it went to the question of what independence meant.

The Chairperson said that this would only arise if there was a decision to change the seat. 

Ms Cohen noted that the commissioners had a discussion whether clause 4(1) should be removed, because it was a restatement of what was already set out in the Constitution. They were of the view that this should be retained to emphasise that independence was a hallmark feature of the SAHRC.

In relation to clause 4(1)(b)(ii), which spoke to potential conflict of interest, the commissioners suggested that more clarity may be needed regarding the interests that members may hold, outside of their positions as members. If they were allowed to hold positions, the Bill should provide for this specifically, and they should declare their interests to the Speaker. This then explained why she had earlier suggested that a definition was needed for “Speaker of Parliament”.

Ms Cohen added that the ICC recommendations, under number 5, had acknowledged that the SAHRC had advocated for changes to the Act on this point, and encouraged the SAHRC to continue working on this. It was important to have issues around conflict clearly set out.

Adv Mushwana also said that the question of remuneration was debated. The holding of any private interest must be declared. A further process was needed in relation to the remuneration.

Ms Cohen said that clause 5 was also subject to debate around the ideal number of commissioners. The SAHRC was in favour of retaining eleven, of whom seven would be full time. However, some had suggested that they would support having eight full-time commissioners.

Ms Smuts asked if there was a particular rationale for having a round number.

Adv Mushwana said that the Chairperson would be chairing, and there would therefore be seven commissioners engaging in debate in practice. The funding was also taken into consideration.

The Chairperson reminded Members that the Minister had requested the appointment of an additional commissioner, and the Committee had said it would only agreed to this if it was satisfied that there was the budget for it.

Ms Cohen said that the quorum was based on the majority of commissioners, and the Chairperson would have a casting vote in the case of a split vote, so it did not matter whether the number was odd or even.

Ms Smuts said that it was self-evident that there was enough human rights work to keep even more commissioners occupied.

Adv Mushwana said that with the current resources there were difficulties in SAHRC affording eleven commissioners, and even in relation to the suggestion that there be eight full time, there was consideration given to appointing seven for the moment and then budget for more in the future.

Ms Pilane-Majake noted that not only the numbers, but the roles, had to be debated, and said that from her experiences with another Chapter 9 institution, it was more important to have certainty on what, in addition to the overall mandate, the commissioners were specifically tasked with doing. She understood that full time Commissioners would have to attend the offices on a daily basis and asked what they would do, apart from attending board meetings.

Adv Mushwana agreed and said that there had been discussion on roles. The SAHRC was concerned that it was not currently covering all the rights in Chapter 2 of the Constitution, and that was a significant point, and even the appointment of an eighth commissioner would not enable this to happen. However, the SAHRC had selected certain rights, and each commissioner had a full workload. He could send through a breakdown of what each commissioner was doing.

Ms Pilane-Majake thought that this was probably done according to “a gentleman’s agreement”, and reiterated her fear that if nothing was legislated for, there could well be problems in the future. Whilst she was not expecting an answer now, she would like the commissioners to think about whether it would not be wise to insert something in the legislation, to indicate to what extent each commissioner would be required to respond to the functions and mandate of the SAHRC. This would also assist in planning work.

Adv Mushwana said that when commissioners were appointed, they were told what work was in place that needed to be done, so it was specifically spelt out. In the first week of each month, commissioners would meet to report back on what they had done in terms of the Annual Performance Plan, and discuss their work plans. He understood the concerns, and said that what might work well with one group could indeed not work well with another, but it would be difficult to set this out in the legislation. In the former Gender Commission, there had been problems with reporting lines and willingness to report to the Chair, and perhaps that was something to be dealt with under appointment of the Chair and Deputy Chair.

Ms Cohen continued to take the Committee through the presentation. The ICC’s recommendation 2 encouraged the SAHRC to continue its advocacy for a fixed term of appointment, as this was important for security of tenure. Clause 5 of the Bill currently said that the President may determine a term not exceeding seven years, but the ICC believed a set term should be named.

Another issue that had led to substantial discussion was around the staggering of appointments. The commissioners did not support this, saying that the institutional memory of the Commission should reside within the secretariat.

The Chairperson noted that this had also been the view within the Committee.

Adv Mushwana was pleased to hear this, and added that staggering of commissioners’ periods of office disorganised the strategic plan.

Ms Smuts asked for the SAHRC’s view on full and part-time commissioners.

Adv Mushwana responded that whilst there were advantages to having part-time commissioners, there was some problem in determining plans for them, and it was difficult from an administrative point of view. Some assistants were appointed to help some commissioners.

Ms Smuts said that this was a useful indication for the committee.

Ms Cohen noted that clauses 5(5) and (6) dealt with acting commissioners. The SAHRC commissioners did not support the appointment of acting commissioners,  and were of the view that these subclauses should be removed from the Bill.

Adv Mushwana said that there were also other inconsistencies; one clause required a minimum of five commissioners, but another related to validity of the Commission’s proceedings in the absence of the five. It was recognised that in the case of death of a commissioner, the minimum requirement was not met.

Ms Smuts believed that subclauses (5), (6) and (7) should all be deleted. The legislation required that the members nominated to act as commissioners should be interviewed, voted and decided upon by the National Assembly (NA) and it was therefore not acceptable for the President to make an appointment, even in consultation with the SAHRC. This was not the same to the appointment of acting judges, where a different process was followed.

Adv Mushwana confirmed that the SAHRC commissioners would also be in favour of deleting subclause (7).

Ms Cohen said that the commissioners wished the question of political affiliation to be left to Parliament to decide upon.

Clause 6 covered the appointment of the Chair and Deputy Chair. The commissioners did not have consensus on whether the appointment process should involve the President, the NA, or the SAHRC commissioners themselves. The commissioners had indicated they would leave this to Parliament to decide.

Ms Pilane-Majake asked how the SAHRC felt about the Chair and Deputy Chair being appointing by the commissioners.

The Chairperson asked if this procedure had not worked within the SAHRC to date.

Adv Mushwana said that it had worked so far, but there were some difficulties.

Ms Smuts would prefer to see the Chair appointed from within.

Ms Cohen noted, in relation to clause 7, that the Bill stated that the Chair was the executive authority, as included in clause 7(5).

The Chairperson said that he had a note, made after discussion in the Committee, querying  “Commission or Chairperson?”

Ms Smuts said that the Committee had indicated that it needed to check on the specific Treasury Regulation that made it clear who held the executive authority in a Chapter 9 institution. She had offered to dig out this regulation which she knew she had had at some point, but had been unable to lay her hands on it. She requested that the Committee staff must find the relevant regulation.

Adv Mushwana said that although he had not looked at the point specifically, the Public Finance Management Act (PFMA) should give guidance.

Ms Pilane-Majake said that the PFMA should articulate the role of the executive authority and accounting officer. If the Commission was the executive authority, then this suggested that all the commissioners would have to be involved in any money transactions. She thought that the executive authority was surely the Chief Executive Officer (CEO) and Chairperson.

Adv Mushwana said that whatever was stated in this Bill, the PFMA would still prevail in the case of any inconsistency.

The Chairperson said that the issue was more related to who came to Parliament and this Committee to account, than to who would decide what money was spent where. That was the purpose of the executive authority.

Ms Smuts said that Chapter 5 related to departments, and section 40(e) of the PFMA provided that, in the case of a constitutional institution, “the Accounting Officer” would submit the statements. However, that did not address the point on who must account to Parliament. National Treasury had issued a regulation to clarify precisely this point. Any reference to the PFMA would include the subordinate laws. She requested again that the Committee staff track down the relevant regulation.

Adv Mushwana agreed that it was important to clarify this with Treasury.

Ms Cohen moved on to clause 8. The commissioners were of the view that vacancies must be filled within six months. She referred also to the ICC report on selection and appointment, which encouraged SAHRC to formalise the selection process in regulations, administration or guidelines. This should cover the points that applications should be assessed on the basis of predetermined objectives that were publicly available, that the vacancies must be publicised, and broad consultation and selection processes must be promoted. These recommendations were already covered, although not under one piece of legislation.

Ms Smuts agreed. All of this was already covered in section 193 of the Constitution.

Ms Cohen reported that clause 9 dealt with remuneration. Commissioners were of the view that it was the Independent Commission for the Remuneration of Public Office Bearers who should determine the remuneration of commissioners. The SAHRC had commented on the relevant Bill, but she did not think that, whilst it was still pending, there could be any more specifics discussed.

Ms Cohen moved to clause 13. The commissioners had suggested that there should also be a reference to the National Council of Provinces (NCOP). This could be useful and necessary, particularly in the context of some of the work that the SAHRC did in relation to economic and social rights, when it was more appropriate to go to bodies dealing with the provinces to come to speak to the NCOP, so that there may be instances where dealing with the NCOP may be more relevant.

The Chairperson asked if the SAHRC was prevented from doing that now. He did not believe it was precluded from doing so now.

Mr Swart pointed out that the Bill was changing the word “Parliament” (which was in the current Act) to “National Assembly” and wondered if the implication of that was that the NCOP would be excluded. However, there was a reference also to “other relevant body” which may include the NCOP.

The Chairperson agreed, saying that if the SAHRC was presenting a report on a situation in one of the provinces, then surely the NCOP was a “relevant body”.

Mr Swart wondered why the wording had been narrowed in the first place. Possibly it was to reflect the case that the SAHRC was accountable to the NA and not the NCOP. However, he thought that it might be preferable to retain the word “Parliament”. 

Ms Smuts reiterated that the SAHRC had an express role to investigate socio-economic rights, and it was at provincial level that these were rolled out. She agreed that the SAHRC should be allowed to go to the NCOP and the provincial legislatures, to hold the MECs to account. The NA was “jealous” of its powers – in fact that was probably the one major aspect that united all political parties – but she saw reason in including the NCOP. She wondered why there was mention of the President.

The Chairperson asked why the SAHRC should not be able to approach the President, who, as head of Cabinet, was the main protector of human rights.

Ms Smuts conceded the point. She wondered if, from a drafting viewpoint, there would be any problem in mentioning the NCOP and provinces, as it was her view that the SAHRC should be able to approach all.

Mr Swart said that the Chairperson had rightly earlier questioned why this clause was needed. A Chapter 9 institution had the right to approach any body. This was not actually a power. The powers of the SAHRC lay in recommending new legislation.

Ms Smuts said that there was no harm to having the clause. However, she had a conceptual difficulty with the powers set out at the end of the Bill, and she wanted to know whether they had been used by the SAHRC.

Ms Cohen responded that when the SAHRC engaged with other commissions around the world, they had been surprised and impressed that the SAHRC could approach the President, and this was seen as a mark of respect accorded to the SAHRC. Although it was not a clause that may be seen as having “teeth”, it was important to the image and perception of the SAHRC.

The Chairperson agreed that the mere fact of the SAHRC approaching anyone was a serious event. He did not think that “may approach” was a soft option.

Mr Swart said that the powers to call for reports were much stronger.

Mr Swart quipped that he liked the clause that required all organs of state to consult on any policy.

Ms Pilane-Majake thought that this was inserted to ensure that no institution could ignore protecting human rights.

Ms Cohen said that clause 14 dealt with powers and functions. Some rewording was suggested, to repeat what was in the Constitution. This would lead to consequential renumbering.

There were also recommendations from the ICC as to what should be included more specifically. One related to the international work of the Commission. This was probably more of a drafting style issue. The current Bill made reference to doing international work, but did not say that the SAHRC must encourage the ratification or accession to human rights instruments, which was contained under item 3(c) of the Paris Principles.

Corresponding to this, although not directly pointed out by the ICC, was the fact that the Bill perhaps needed to make more specific reference to other portions of the Paris Principles. Ms Cohen pointed out that, over time, the roles of the NHRIs at international level had been accorded more recognition and were solidified, to the extent that it was now expected of NHRIs that they should be drafting independent reports and delivering them (either in person or by video) on various issues, and they were expected to make statements, especially if their country had been visited by a special rapporteur. The SAHRC thus had an ever-expanding international role, with greater responsibilities at the international level.

Ms PIlane-Majake asked for more clarity on the reports.

Ms Cohen noted that countries that were signatories to certain treaties had the obligation to submit State or country reports. As a matter of practice, NGOs working in the field would also submit shadow reports. Increasingly, the various treaty body committees had recognised NHRIs as more independent, and there had been a debate about their role and what should be contained in their own reports on the country report. There was now an expectation that NHRIs should submit shadow reports that pointed out any different viewpoints, or supplemented information in particular areas, and those would be allowed into the official forums. NHRIs were expected to attend, but not to support or even accompany the State party delegation. The Chair of the ICC was seeking speaking rights in the General Assembly for the NHRIs, and that was under debate at present. The roles of NHRIs were likely to increase in scope and importance, particularly after the 2015 reporting on the Millennium Development Goals.

Ms Pilane-Majake said that this was a pleasing development in recognising the bodies. She thought that NHRIs could fill the gaps by monitoring submission of the country reports. She asked if there was any provision requiring the SAHRC to monitor those reports.

Adv Mushwana responded that there was nothing in law, but when a NHRI went for accreditation, this was one of the aspects taken into consideration towards the “A” status award. The standard format of reporting now was expected to comprise government, NGO and SAHRC reports.

Ms Pilane-Majake believed that there should be a provision in the Bill specifically requiring SAHRC to monitor that.

Ms Cohen said that Paris Principle 3 referred to ratification, accession and ensuring the implementation of treaties. The implementation phase would include the State obligation to report, and detailed questions were asked as to what the NHRI had been doing to follow up with the government, particularly where they were late with reports. Adv Mushwana, in his capacity as Chairperson, had been particularly vigilant on this point.

Adv Mushwana said that the Department of Justice and Constitutional Development, Office of the Presidency and others had been consolidating all the international obligations. Government was reporting to the forum. The main problem was that there was no backup – it was relying on the international community.

Ms Smuts questioned whether clause 14(vi) would not cover that, because it looked at monitoring. It was clearly outside the powers of the SAHRC to require that instruments be signed.

The Chairperson agreed. He wished, however, to raise another concern. He noted that the Constitution required the SAHRC to monitor and ensure compliance with human rights in South Africa. However, he asked who would speak for people whose rights were being overtly infringed, but where there were no NHRIs. He asked who, at the UN, had ever spoken for the people of Diego Garcia, which was a strategically placed island populated by fishermen, Africans, Indians and slaves. The British had forcibly removed those people and sent them to Mauritius and the island was now under control of America. He also wanted to know who spoke for the innocent Libyans in the villages that had been bombed by NATO, in contravention of UN Resolution 93. He said that he may be cynical, but had the impression that the NHRIs would deliver their own reports, receive a pat on the back, and leave the UN without ever considering whether they should not also deal with violations in other places. He thought that these kinds of issues should surely also be raised in the forums.

Ms Smuts said that it came down to a question of whose function and power it was to raise the points; some representative at the UN would be voting on behalf of all South Africans This raised the question whether there was a need for an independent human rights body, but she also pointed to the anomaly that the Chair previously had been from Libya.

Ms Pilane-Majake said that at UN level, it was possible to sponsor a resolution, which then became a matter for discussion. 

The Chairperson said he had raised this in the context that the SAHRC was being monitored by the UN, under the Paris Principles, but the very people who, on the one hand, were ensuring that the SAHRC complied were, on the other hand, doing nothing for other individuals and countries .

Adv Mushwana said that there were indeed areas where there were no NHRIs, but the African regional NHRIs could raise this point, or it could be done through the African Commission. In practice, there had been unsatisfactory responses and the super-powers essentially decided what happened.

Ms Smuts asked about the status of the Paris Principles. The SAHRC was bound by the Constitution and the South African law. She noted that these were accepted in the UN, but they had not been adopted and incorporated into our local law.

Adv Mushwana agreed and said that there was no suggestion that they should be incorporated.

Ms Cohen noted that there were currently 101 NHRIs and part of the work of the ICC was to promote the establishment of NHRIs in other countries. Much of the SAHRC’s work involved receiving visits and requests from other countries; there had been assistance given recently to the Iraqi Commission, and she said the SAHRC had been horrified to learn that most of the Iraqi commissioners needed bodyguards to protect them, and would probably have to send their families out of the country for their own safety. Wherever it could, the SAHRC tried to make an impact.

Ms Pilane-Majake suggested that perhaps the concerns about the status of the Paris Principles should be carried forward to the relevant forum.

Adv Mushwana noted that almost all countries had accepted these, as a guiding document.

Ms Cohen pointed out that another recommendation from the ICC related to monitoring places of detention. The SAHRC had a broad authority to inspect any place to establish whether there had been violations of human rights. The ICC would continue to make similar recommendations as long as the Optional Protocol to the Convention against Torture (OPCAT) had not been ratified or implemented.

The Chairperson asked if the SAHRC was precluded from visiting correctional centres.

Adv Mushwana responded that it was not precluded.

Ms Cohen noted that, in respect of clause 16(1)(a), there was a suggestion from the commissioners to add “or public enquiry” after the word “investigation”. She noted that clause 16(9) was a restatement of what the Commission did currently, namely to address systemic violations of rights.

The Chairperson thought that the wording suggested was too verbose and read more like a preamble, although he agreed that the essence could be captured.

Ms Smuts reverted to her earlier query in relation to organs of state, saying that surely this reference should be to “all executive organs of state”. It was not necessary, in her view, for every organ of state to consult on every policy matter, and would have thought that what was envisaged was organs of state with power at municipal, provincial or national level.

Mr Swart said he presumed this clause had gone through Cabinet. Although it referred to policy decisions affecting human rights, that could include virtually everything. He asked if this was happening at the moment, whether the SAHRC had the capacity to deal with this, and what the constraints would be.

Adv Mushwana noted that the difficulty was the wording “must”.

The Chairperson said that the Committee would consider re-wording the clause, to refer to “all executive organs” and “may”.

Ms Cohen said that the commissioners were aware that there had been discussions in the Committee about powers of the SAHRC, but had stressed that they did not wish any of these powers to be deleted.

Ms Smuts asked if any of the extensive powers listed had in fact been used.

Adv Mushwana confirmed that a short while ago, the SAHRC had informed two or three departments who failed to respond that it was intending to apply for search and seizure powers, which elicited an immediate response. It was very important that the powers be retained. He would table more details on this in the next report.

Ms Cohen said, in respect of clause 17(8)(b) that commissioners took the view that it should be deleted as it was unnecessarily wide.

Clause 19 related to the reports of the Commission, and the commissioners had suggested that at the end of clause 19(1), wording be inserted to refer to submission of public accounts to the relevant Committee. The commissioners were not in favour of tabling reports via the Speaker.

The Chairperson pointed out that this was essentially a procedural matter.

Ms Cohen noted another proposal from the commissioners that the NA should facilitate the establishment of a Joint Committee to discuss the economic and social rights report, or that this Committee facilitate joint discussions.

Ms Smuts said that this could not be written into the Bill, but the proposal could be referred to the Office Supporting Institutions of Democracy (OSID). She thought it would not be desirable for this Committee to try to debate socio-economic rights, as it did not have the expertise.

Mr Swart reminded her that the wording suggested was “facilitate”. The points could be included in the Committee’s report and the Committee could take a resolution on the point.

Ms Smuts wanted to query clause 18, saying that the Committee had been surprised by the wording of clauses 18(1) and (3), which referred, respectively, to orders that expenses incurred by commissioners, or any damages suffered by any person whilst executing a warrant, be paid from the national revenue fund. She assured the SAHRC that the Committee would not approve this wording.

Adv Mushwana was not sure where this suggestion emanated, but confirmed that the commissioners were not insisting upon this.

Mr Swart also added that this ran the risk of making the Bill into a Money Bill.

The Chairperson said the point would be taken up further with the drafters.

Ms Cohen noted that clause 19(4), requiring organs and institutions to respond within 30 days, was supported by the ICC recommendations.

Clause 20 dealt with staff of the SAHRC, and there was a suggestion that clause 20(3) be amended, to add a reference to “in accordance with the budget prepared”. In respect of clause 20(5), although the commissioners had not come up with specific wording, they ha suggested that staff remuneration allowances and other employment benefits should be aligned with or follow the public service benchmarks, as currently happened. The Independent Commission for the Remuneration of Public Office Bearers should not consider the staff salaries and the staff and commissioners processes should be entirely separate. The commissioners further requested that “ in consultation with the Minister of Finance” should be removed from clause 20(7).

Ms Pilane-Majake asked if staff salaries were determined according to public service packages.

Ms Mushwana said that there was a salary structure, and it was intended to align this to the model used in the public service – for instance, for annual cost of living increases. He confirmed that the staff were not public servants.

Ms Pilane-Majake pointed out that the SARHC staff may wish to set up their own unions.

Ms Cohen indicated that there were some minor suggestions in relation to the wording of clause 21.

Ms Smuts thought that there was a problem with regulations, under 24(g). However, she withdrew because this related to members of staff.

The Chairperson thanked the SAHRC and said that all the suggestions and recommendations were noted and would be further debated by the Committee.

Legal Practice Bill: clarification on requests from the SAHRC in relation to appearances
The Chairperson pointed out that the Committee had been discussing the Legal Practice Bill and had noted that the SAHRC had made a suggestion that it be specifically catered for, under clause 84, but the Committee had wanted clarity on why it had sought the inclusion of that wording.

Ms Cohen explained that up until now, in some provinces, the provincial Law Societies had been recognising the SAHRC as something akin to the law clinics, so that the attorneys in the employ of the SAHRC were able to appear in court. However, she conceded that this was a somewhat complex arrangement as the current Attorneys Act did not really give specifics on how this could be done. Mr Swart had, just before this meeting, shown her the latest draft of the Legal Practice Bill, and that wording had not been formally considered by the commissioners. There were now references to the SAHRC having trust funds and trust accounts, and that was not in fact what it had requested.

The Chairperson said that there had been concerns raised over what type of work the SAHRC might do that resulted in an order. He said that, for instance, it had been suggested that a court might award a community, who was represented by the SAHRC, a sum of damages, and the question was how the money would be handled. Mr Swart had noted that it should be done by a cheque being made out to the client, but it was notionally possible that the cheque might end up in the SAHRC’s bank account.

Ms Smuts added that there had been another concern raised by the drafters, that the SAHRC was perhaps misreading the Bill as applying to its own lawyers. A legal practitioner was defined in the Bill, but the Bill was essentially about forms of legal practice, and it was suggested that it did not apply to attorneys working at institutions such as the SAHRC.

Adv Mushwana responded that there had been some very limited cases in which monetary compensation was granted. The SAHRC would not generally receive money on behalf of the community. The SAHRC was really maximising the use of the Equality Court. Most of the matters were not claims for delictual damages, and the remedies were usually reparations by apologies or something similar. The SAHRC had not been requesting anything that would oblige it to have a trust account.

Mr Swart clarified that the issue had been raised because clause 84(10) made reference only to the SAHRC, and the point was raised whether other Chapter 9 institutions also should be covered. Anther point was that the wording did not actually protect the SAHRC. He took the point about a possible monetary compensation award further. The attorney acting for the SAHRC could open a bank account, fraudulently, in the name of the client, pay in the cheque and misappropriate it. It was unlikely, but possible. The Bill currently said that no legal practitioner in the full time employ of the State, a law clinic or SAHRC, could receive any money except in the course of employment, but if the attorney received the cheque in the course of employment, that person could access the cheque. His reading was that the SAHRC was in a similar situation to the State Attorney. The intention was surely not that the SAHRC should have a trust account, but that the award go directly to the person affected by the litigation.

Adv Mushwana agreed that it would be preferable that the SAHRC not receive money. Other State agencies had a “deposit account”, which was not a trust account, but one where money was simply held pending collection by the claimant. The interest went to the State. He agreed, however, that there might be a possibility that a cheque may be written out to the SAHRC. In relation to misappropriation, he thought that the State Liability Act would apply.

The Chairperson said that the SAHRC was not the State, but Mr Swart clarified that this Act was applicable to the SAHRC.

Ms Cohen noted the forms of legal practice listed in the Bill, and said that the problem was that in order for the attorneys working for SAHRC to have right of appearance in the courts, they would have to be on the practicing roll, which meant that they would have to be registered. Currently, the law societies had the SAHRC registered as a law clinic.

Ms Smuts said that the Committee had not been happy with the descriptions of law clinics in the Bill, and the Committee preferred that the new regulator should set out the details covering the Legal Resources Centre, Law Clinics, and similar institutions. The Legal Resources Centre had suggested that including too much detail in the bill could hinder the establishment of new law clinics and stultify growth.

Ms Cohen said that in the past, the law societies granting recognition to the SAHRC had perhaps been applying an “overly-generous interpretation” of the current Act, in order to give recognition, and whilst it had never been challenged, it would obviously be preferable for this to be properly covered in the new Bill. The SAHRC was not a university, and not an NPO, but it needed recognition.

Ms Smuts asked if the same applied to other Chapter 9 institutions, such as the Public Protector.

Ms Pilane-Majake suggested that the Department must look into appropriate wording.

Mr Swart thought that the matter could be handled very simply, by amending clause 34(4)(f), t refer to “an attorney in the full time employment of the State or a Chapter 9 institution”. The central enquiry was then merely whether it applied to all Chapter 9 institutions, or only the SAHRC.

Ms Smuts thought Mr Swart’s suggestion was a good start, and referred briefly to other suggestions by the Legal Resources Centre to simplify the Bill.

Mr Raj Daya, Acting Deputy Director General: Legislative Development, Department of Justice and Constitutional Development, confirmed that he would prepare an option.

The meeting was adjourned.


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