SA Human Rights Commission Bill: Department of Justice briefing

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Justice and Correctional Services

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

The Department of Justice and Constitutional Development (the Department) had prepared a summary of comments made by the South African Human Rights Commission (SAHRC) on the SAHRC Bill. The drafters took Members through the Bill from clause 13, and Members debated the wording, making suggestions, but no final decisions were being voted upon.

Clause 13 permitted the SAHRC to approach “the President, the National Assembly or other relevant body”, which differed slightly from the wording of “the President or Parliament” in the current Act. Members were of the view that the clause was not necessary and should be omitted altogether. The SAHRC had suggested amendment of the wording of clauses 14(1)(a)(i) and (ii), which was in line with the Constitution’s section 184, but Members thought it necessary to look more closely at exactly what was being described. Having discussed the clause extensively, they asked that the drafters re-draft clause 14, omitting subclauses (1)(a)(i) and (ii). The provisions around public awareness and education were combined, so that clause 14(1)(b) should refer to “public understanding and awareness”. In clause 14(2)(iii) the word “must” should be replaced with  “may”. The wording of subparagraph (ix) would be moved to clause 14(3) and clause 14(4)(a), requiring all organs of state to consult with the SAHRC on policy, would be deleted. Members discussed quite extensively the links between reviews in clause 14(2)(b)(v) and clause 14(4). On Member raised his concern with the possibility that a horizontal application of investigation could be abused, and raised some practical concerns, questioning if the investigations should be limited to organs of state. There was also substantial debate around the reporting or monitoring obligations in (vii). Members also debated whether there was a need to set out other powers and functions that a juristic person would need in order to conduct business – such as entering into leases, and the drafters were asked to check other legislation to see if something similar was incorporated. The drafters noted that they had now obtained the National Treasury regulations relating to Chapter 9 institutions.

Members noted that the wording of clause 15 was currently in the present Act, and agreed that the use of “may”, as an empowering provisions, was acceptable. Some changes had been made to the way the current Act read, in clause 16. Members questioned whether the words “in consultation with the Director of Public Prosecutions” were needed in clause 16(2)(b) and noted that no right to remain silent was noted. The drafters would revert to the Committee on this point. Other Members were concerned about the compellability clauses, and thought that the Chairperson of the SAHRC should be asked to clarify whether at the previous meeting he had been referring to the SAHRC threatening to use the powers of subpoena, or of search and seizure. do so had been sufficient to persuade departments to comply. He had not, however, specified whether he had been referring to subpoena, or to search and seizure. Members were again worried about the right to remain silent in respect of clauses 16(2) and this clause was flagged for further consideration. In clause 16(3) and 16(9) the words “ no person” would be replaced with “no member or member of staff”, and Members indicated that there was an apparent disconnect between clauses 16(4) and (9), and suggested that the words “advocate or attorney” be replaced with “legal representative”, and that in subclause (4) the  words “as are reasonably necessary to refresh his or her memory” should be deleted, and that instead of referring to “minutes”, “relevant documents” would be used. It was also suggested that it may be necessary to remove the reference to subsection (2)(a)(i) in clause 16(3)(b) but the drafters were asked to confirm whether this would require other consequential amendments. Members debated clause 16(7) and thought, firstly, that the words “from time to time” must be removed as they were unclear, and that, instead of referring to the Government Gazette, it should merely be stated that the SAHRC must make publicly known the particulars of any procedure it has determined. Members stressed that this was not a court of law, or a criminal investigation. Members raised some suggestions on what may be needed, including the possibility of something similar to the procedure in the Sexual Offences Court, for witness statements, and it was flagged for further consideration. 

Meeting report

Programming announcement
The Chairperson noted that the Committee would not be meeting in the following week because the Department of Justice and Constitutional Development (the Department) had not completed its work on the Legal Practice Bill. The interviews scheduled for next Thursday for the vacancy on the South African Human Rights Commission (SAHRC) would no longer take place.

South African Human Rights Commission Bill: Department of Justice and Constitutional Development briefing
Mr Johan Labuschagne, Principal State Law Adviser, Department of Justice and Constitutional Development, said he would continue to take Members through the Bill, from clause 13. He noted that he had prepared a summary of comments made by the South African Human Rights Commission (SAHRC).

Ms Christine Silkstone, Content Advisor to the Committee, noted that the Commission for Gender Equality had also made some comments.

Mr Labuschagne added that the SAHRC had made some further comments in the previous week, when it met with the Committee but the Department still needed to do some further research on some of these aspects

Clause 13
Mr Labuschagne noted that this clause permitted to Commission to approach “the President, the National Assembly or other relevant body” in regard to any matter. This was similar to a section in the present Act.

Ms M Smuts (DA) noted that she could not understand the reason for inclusion of this clause.

Mr Labuschagne said that section 6 of the existing Act referred to the SAHRC being able to approach the President or Parliament. The SAHRC was accountable to the National Assembly, and this was why the wording “National Assembly” was substituted.

Ms Smuts did not believe that the SAHRC should be approaching the President or Executive, as it should be independent of government. The SAHRC had to account to the National Assembly, but the Office for Institutions Supporting Democracy (OISD) had been set up to facilitate this. She believed that it came into contact with the NCOP but asked why it would be necessary to “approach” a body to whom it was not accountable. She suggested that the clause be omitted entirely.

Mr S Swart (ACDP) noted that this had been briefly touched on during a previous meeting. In clause 14(1), the SAHRC was permitted to make recommendations to “all organs of state” and 14(2) permitted it to make recommendations or suggestions to Parliament. It could review government policies. He also did not understand what the word “approach” meant.

Mr S Holomisa (ANC) agreed that the powers were already wide enough.

Members agreed to delete this clause.

Clause 14: Powers and functions
The SAHRC had proposed that the wording in clauses 14(1)(a)(i) and (ii) should be substituted. However, no motivation was given, and Mr Labuschagne said that he would like a chance to think further about the effect of the amendment.

Ms Silkstone noted that the wording that the SAHRC had proposed was drawn from section 184 of the Constitution.

Mr Swart noted that essentially the wording of subparagraphs (i) to (iii) set this out.

Ms Smuts said that the requirement around annual reporting was elsewhere in the Constitution. She wondered why the SAHRC was not also referring to subsection (3).

The Chairperson added that the essence of the suggested new wording in (iv) was also included in the Constitution, although it was slightly different, in section 184(3).

Mr Swart commented that the word “relevant” had been excluded from its draft, and thought it should be inserted again.

Ms Smuts thought that this was also covered in the Preamble. She believed that the competencies needed to be listed, but suggested that better wording would be to state that in addition to any powers conferred in sections 184(1), (2) and (3) of the Constitution, and anything set out in other Acts, the SAHRC would be permitted to promote.. (and then list the functions).

The Chairperson pointed out that this was a duplication of the Constitution’s wording.

Mr Holomisa thought that the words “in addition to any other powers and functions” would mean that there was no need to change any wording or follow the SAHRC submission did not need to be considered, and no wording needed to be changed.

Ms D Schäfer (DA) said that this was actually not “in addition” to the Constitution. She thought that either there should be an exact duplication of the words used in the Constitution, or the submission should be rejected.

Ms Smuts suggested that the words “in order to” could be used on their own, so that the clause would read: “in order to exercise its powers and perform its functions conferred on or assigned to it by section 184(1), (2) and (3) of the Constitution, this Act or any other law, the Commission may….” etc.

Ms Bongiwe Lufundo, State Law Adviser, Office of the Chief State Law Adviser, did not agree on this point. She felt that using the words “in order to” implied that it was only by section 184 that the SAHRC was authorised to operate. She would prefer to retain the words “in addition to” and then refine the duplicated wording.

Ms Smuts maintained that the SAHRC needed clause 14(1)(a)(iii), to assist it in doing what it had to do in relation to socio-economic rights. However subparagraph (i) repeated the Constitution’s wording, and could be removed. In respect of (ii) the wording was not repeated exactly, and she thought this subparagraph gave the SAHRC the right to run educational programmes. The Constitution merely referred to “research” which was not quite the same as “develop an awareness”. Furthermore, if (ii) was retained, then SAHRC could be assigned a specific budget to run educational programmes. “Developing awareness” was possibly more than mere education, as it could involve media work also.

Members agreed to flag subparagraph (ii) for reconsideration of the wording. They all agreed that (iii) must be retained, as well as (iv) (which was not referred to in the Constitution).

Ms Smuts said that subparagraph (v) was also crucial. The SAHRC was one body that was allowed to scrutinise Parliament’s legislation. This would include the legislation emanating from the NA, NCOP, provincial legislatures and presumably also municipalities.

Ms Smuts then noted that there was also reference to education and information programmes in clause 14(1)(b)(i). The question was whether clause 14(1)(a)(ii) was necessary; she thought perhaps it was not.

Ms Schäfer suggested that if the words “to foster public understanding and awareness of Chapter 2…” were added to clause 14(1)(b)(i), subclause 14(1)(a)(ii) could be removed.

Members reversed their previous decision to think more about the wording and agreed to remove clause 14(1)(a)(ii).

Members believed that clause 14(1)(b)(ii) was necessary.

Ms Smuts noted that there was a regular forum with other Chapter 9 institutions, and this was a positive move.

Ms Smuts noted, in respect of clause 14(1)(b)(iii), that the word “may” should be substituted for “must”. The SAHRC should not be obliged to interact with every single NGO.

Mr Holomisa agreed with that, but also suggested that the words “any organisation or sector of civil society which actively promotes”  should be used.

Mr Swart said that this would narrow down the wording. At the moment, the SAHRC may liaise with organisations and other sectors of civil society, including, for instance, a church, even if the organisation was not actually actively promoting respect for human rights.

Ms Schäfer asked what difference there was between “organisation” and “other sector of civil society”.

Ms Silkstone wondered if “organisations” was intended to refer to other Chapter 9 institutions, so it could be slightly different from other sectors of civil society.

Mr Swart believed that the intention was surely to permit the SAHRC to be liaising with anyone, not only organisations promoting human rights.

Members agreed that clause 14(1)(b)(iii) would not be changed.

Members were also happy with subparagraph (iv).

Mr Swart pointed out that clause 14(2)(b)(v) tied up with clause 14(4), on the following page. That stated that “all organs of state must consult”. He noted that the suggestion had been made in the previous week that perhaps this should be limited to “executive organs of state”.  He did not have a problem in principle with clause 14(2)(b)(iv), but thought that it would be administratively burdensome for all organs of state to consult the SAHRC on any policies involving human rights.

The Chairperson asked what “must review” meant, in clause 14(2)(b)(v).

Ms Schäfer said that if the SAHRC had no time to perform reviews mentioned here, it could be regarded as failing in its obligations.

Mr Swart noted that if the SAHRC reviewed the policy, but did not like it, it could assist other person to obtain redress, which might conceivably involve going to court and having the matter reviewed. He questioned whether this was necessarily a bad thing, but said that he believed the Committee must be aware of the civil society concerns.

Ms C Pilane-Majake (ANC) wanted to revert to (v). No matter how wide that clause seemed, this was the SAHRC mandate. Clause 14(4)(b) required all organs of state to afford such assistance as may be required, and she thought that this was a necessary check to (v). She reminded Members the SAHRC was not the only commission to review legislation; the Commission for Gender Equality had similar powers. She suggested that it was better to have this worded widely rather than to later discover that there might be gaps.

The Chairperson wanted to understand the practical steps. If SAHRC reviewed the policy and found that it had a negative effect, it must go to Court, because the SAHRC had no power to overturn government policy immediately.

Ms Pilane-Majake thought that a review of the mandate implied that whatever corrective measures were needed then would have to be taken.

The Chairperson gave the example of the annual budget. The SAHRC might review a policy on housing, declare the budget inadequate and suggest that it be trebled.

Ms Pilane-Majake said that the SAHRC would then make a recommendation to that effect.

Mr Swart referred to subclause 14(9).

Ms Smuts said that a comparison was needed in relation to legislation. Under clause 14(2)(a), SAHRC  could recommend the adoption of new legislation. Under 14(2)(b), if it was under the impression that any legislation was contrary to human rights it must report that fact to the relevant legislature, who must use its own powers to change it. That was already the position at present. The only question was whether the next step must be added. Ms Pilane-Majake’s suggestion that the SAHRC would have to make recommendations was correct. However, she thought that the rider must be added that the recommendations must only refer to policies relating to human rights. It would not be desirable for the SAHRC to try to tell government what it must do with the budget, unless it related to socio-economic rights.

Mr Swart pointed out that the budget would not fall under (b), because it was legislation referred to there.

Ms Smuts noted that the SAHRC in fact did not have very wide powers, and she believed there was no harm in saying that it could review, but surely this referred to policies affecting rights set out in Chapter 2 of the Constitution, rather than broad executive policy. She suggested that the phrase “may review and make recommendations” be used.

She differed from Mr Swart on his interpretation that this may be linked to clause 14(3), and asked that the Committee consider this point. In her view, although the SAHRC could investigate any violation of human rights, on its own initiative, or on receipt of a complaint, this was very different from broad review powers. Normally, it would be individuals or groups lodging complaints. The SAHRC was a mediation and conciliation type of body, except that it could arrange financial assistance to help people to go to court. She did not think SAHRC could challenge government in court on government policy.

Other Members were not sure that this was correct.

Mr Swart said that it could be open to broad interpretation, but clause 14(1)(b)(ix) allowed the SAHRC to bring proceedings. His concern was that there could be a horizontal application. He cited an example of the Catholic Church, which held strong views on abortion, and said that notionally, the SAHRC could bring proceedings in a competent court to prevent that church from promoting its anti-abortion views. The court would then need to consider the competing right and whether freedom of expression took precedence. The problem was, however, that as presently worded, a small church might find itself bearing the costs of litigation. In Canada, pastors had been taken to court for speaking out against abortion or homosexuality. He also noted that the SAHRC had powers of search and seizure, and he asked Members to think about whether a horizontal application was desirable or whether it should be limited.

The Chairperson said that the provision was desirable in broad terms but there could well be practical concerns as raised by Mr Swart.

Mr Swart added that the SAHRC had expressed concerns that it had too few powers over state departments. The question was whether the exercise of this power should be limited to organs of state.

Ms Schäfer responded to Mr Swart that his example might not be entirely correct. A local municipality (and not, she wanted to stress, the DA as a party) was investigated by SAHRC on the open toilet issues. She also cited the example that the Zimbabwean government, for instance, may report that it had free and fair elections, but another institution reporting may hold an entirely different view.

Ms Pilane-Majake sought clarity on subparagraph (vii) relating to international instruments. She wondered if this would not duplicate the reports that were to be prepared by government departments.

The Chairperson said that this related to conventions and treaties.

Ms Pilane-Majake made the point that in effect everything going to the UN was to do broadly with human rights. She reminded Members that on the previous day, the Committee had considered the International Covenant on Economic, Social and Cultural Rights, and the Department had stated that the SAHRC would have to attend to the country reports. She thought that the responsibilities must be clearly outlined, so that there was no confusion who was to report. She would have thought that the role of writing reports fell to the departments.

Mr Holomisa said that everyone was already bound by the Constitution, but the fact that institutions did not comply with the law made it necessary then also to have the SAHRC. He suggested that it was in practice impossible to avoid at least some degree of duplication. Every department must have something to do with human rights, and must report to Parliament, but the SAHRC was established to ensure that human rights were protected.

Ms Smuts commented on the points raised by Ms Pilane-Majake, and agreed that indeed the departments had responsibilities, but some body had to monitor those departments. She understood that country reports were a requirement, although in practice they had not been submitted for many years. The NGOs would then comment on the country reports. The SAHRC had, in the previous meeting, also added that the UN procedures had evolved to the point where it was expected that the human rights institutions must also report separately on their monitoring of the country reports. SAHRC did play a leading role in this regard. Therefore subparagraph (viii) was essential, and not only should the SAHRC report to the NA, but also in line with other obligations. One of the commissions had specifically requested that its power to attend to international work be written in, although she did not think it necessary here.

The Chairperson noted that on a previous occasion the SAHRC had listed a number of conventions and treaties that had been assigned to government departments, but which they failed to deal with, until this Committee had written to the departments asking what steps they had taken.

Ms Pilane-Majake agreed, but said that the monitoring aspect, rather than preparation of reports, needed to be emphasised, so the wording “monitor reporting” should be mentioned.

The Chairperson thought that this was already set out in (vi).

Ms Pilane-Majake responded that whenever questions of human rights were raised, the Constitution should be the first reference point. Anything that violated the Constitution – whether cultural, traditional, religious or simply bad practice – should not be permitted.

Mr Swart said that the Constitutional Court had made it clear that the beliefs of religious community had to be respected. There had to be balancing of freedom of religion and freedom of association and expression, with the other rights. However, there could be a problem if the SAHRC started to step in and comment on teaching and statements, which could then lead to litigation if parties were to maintain firm traditional or religious views. Judge Albie Sachs had said that there was a problem if the state started to express itself on these matters.

The Chairperson said that this was not the State.

Mr Swart agreed, but said that there was a danger wherever people may be required to defend their viewpoints in court, despite the fact that they were given freedom of expression and belief. This was a very important debate. He was sorry that he had not raised that point with the SAHRC. This also had a possible link to international covenants, where the SAHRC may lean in favour of the international jurisprudence, even if it was not dealt with in the South African criminal law.

Another example being debated at the moment was whether moderate parental chastisement was acceptable. A certain interpretation was being given to that which was not in accordance with the domestic law. Certain churches had been called upon to explain their views.

Ms Schäfer thought that this was a dangerous debate. She suggested that Ms Pilane-Majake’s concern was answered by the inclusion of the phrase “such conventions”  and the fact that the clauses referred to the NA only.

Mr Holomisa pointed out that the country would rely on the Constitutional Court to tell Parliament the correct interpretation of the exercise of the right.

Mr Holomisa referred to (ix) but said that this did not specify that this was related specifically to human rights issues.

Ms Smuts wondered if this could not be cross-referenced to subclause (3).

The Chairperson suggested that what was currently in (ix) should be moved to clause 14(3), if it was not covered.

Ms Silkstone thought that the powers should be expanded.

Ms Smuts questioned the logic behind what was included in subclauses (1) to (3).

She asked, and received confirmation that the Jon Quelane case was taken to the Equality Court, and the Court ordered him to make an apology.

The Chairperson asked the SAHRC to find out whether he had indeed apologised. There were also damages awarded.

Ms Silkstone noted that the cross-referencing “referred to in section 3” should in fact be a reference to “section 2”.

Ms Smuts agreed, but suggested that the reference to the section could simply be left out.

The drafters were asked to remove those words.

Members moved to clause 14(3) and said that this created a balance and was needed.

Ms Silkstone questioned if there were other powers and functions of the SAHRC that were not actually human-rights related and that may need to be specified. The SAHRC was a juristic person, so it may well be that it was interpreted as having those rights – such as the power to enter leases, or make contracts – but she asked the Committee to consider whether it was necessary or desirable to make reference to wider powers that would enable it to do its own work.

Ms Smuts reminded Members that the Legal Resources Centre, in its submission on the Legal Practice Bill, had questioned if it was necessary to include these kinds of functions. She wondered if similar wording was used for other statutory bodies and whether it was necessary, or whether the Public Finance Management Act (PFMA) would cover this.

Ms Schäfer noted that there was reference to legal proceedings under clause 22, but this did not say that it had the power to institute legal proceedings.

The Chairperson noted that the power to enter contracts was set out in the existing Act, in section 16(6) but this was not quite the same as what was included in other legislation.

Ms Smuts suggested that the drafters be asked to draft something.

Mr Labuschagne asked if Members wanted it under clause 22, but Ms Schäfer thought that it should be included under clause 14.

Ms Pilane-Majake wondered if this would appropriate for this Bill. The operations of the SAHRC would be governed by other legislation, such as the PFMA, Treasury regulations and similar matters. She added that there still needed to be clarity on who was the executive authority and who was the accounting authority.

Ms Lufundo said that some wording was provided for under clause 20(7).

Ms Schäfer and Ms Smuts noted that this related only to staff, and something broader than that was under discussion.

The Chairperson referred to the wording of clause 3.

Ms Smuts did not think that this clause was needed, but thought the wording could be moved to another clause providing specifically for entering contracts and leases.

Ms Schäfer said it still came down to the question of whether merely noting that the SAHRC was a juristic person was sufficient.

The Chairperson pointed out that at the moment the SAHRC must be entering into leases and other contracts and asked that the drafters check up what wording was used in other legislation, and comment on whether more specifics were necessary.

Ms Pilane-Majake suggested that “if it ain’t broke, don’t fix it”; the Committee should rather concentrate on what was problematic. She suggested that there was a need also to check whether SAHRC was currently complying with other regulations – such as supply chain management. The internal audit unit should have a list of the legislation relating to governance matters.

The Chairperson said that this should be covered by clause 21. He would have thought that the Auditor-General would have raised any problems if there were no policies in place.

Ms Schäfer asked the Departmental drafters to comment on the points raised.

Mr Grafhey Seleko, Senior State Law Adviser, Department of Justice and Constitutional Development, said that at the moment the SAHRC liaised with the Department of Public Works, to enter into lease agreements. He confirmed that the PFMA applied to the SAHRC.

The Chairperson questioned if the PFMA actually authorised liaison through Department of Public Works, and asked again that the drafters check whether the mere reference to the SAHRC being a juristic person was adequate.

Ms Smuts also asked for a list of Treasury Regulations under the PFMA that were applicable to the Constitutional institutions.

Mr Labuschagne said that he had a copy of the Treasury Regulations. He had also found the regulation clarifying the definition of “executive authority” for Constitutional institutions, which he would raise under the relevant clause.

Clause 14(4)
Mr Holomisa questioned why clause 14(4) was needed. All organs of state had to take the Constitution into account, and he thought it would be far too onerous to require all organs of state to consult. He thought that the SAHRC monitoring the legislation that came from these organs of state was sufficient.

The Chairperson pointed out that the wording in subclause 14(4)(b) was in the present Act. He asked what had been the motivation for this clause.

Ms Smuts reiterated that this should, in any event, be narrowed to read “all executive organs of state”. She agreed with Mr Holomisa that it would in practice be impossible for all to consult, and she reiterated the question whether even executive organs should be required to consult on all policy matters. The intention was laudable – to keep them “on the straight and narrow” but she questioned if “must” should not be changed to “may”, or whether doing this would defeat the purpose. The SAHRC could only take on a certain workload.

Mr Labuschagne thought that clause 14(4)(a) was included to give the SAHRC the power to monitor policy on human rights, but agreed that the present wording would greatly increase its workload. However, he also pointed out that SAHRC had not expressed any views on this when it made the submission on the Bill, and he assumed it had not perceived any problems.

Mr Swart repeated that whilst this was laudable, it could, from a governance perspective also be very onerous. He was surprised that it had gone through the Cabinet process without objection. He pointed out that the motivation described by Mr Labuschagne was already covered in clause 14(4)(b)(v), which required the SAHRC to review legislation. Clause 14(4) seemed to contain a reverse onus.

The Chairperson agreed that (v) was adequate, read with clause 14(4)(b)

Mr Swart added that if the word “may” was used, it may water down the power too far.

Members agreed that clause 14(4)(a) could be deleted.

Mr Labuschagne summarised that the drafters would now attend to:
- in clause 14(1)(a), (i) and (ii) would be deleted
- in clause 14(1)(b) the words “public understanding and awareness would be used
- in clause 14(2)(iii) the word “must” would be replaced with  “may”.
- the wording of subparagraph (ix) would be moved to clause 14(3)
- clause 14(4) (a) must be deleted.

Ms Schäfer noted that clause 14(2) already had a reference to an organ of state affording assistance to the SAHRC. She wondered if both references were necessary, in clauses 14(2) and (4).

The Chairperson noted that the assistance related to the maintenance of independence and impartiality of the Commission.

Member felt that the two instances did not cover quite the same thing, and decided, after discussion, to make no changes on this point.

Clause 15
Mr Labuschagne noted that this wording mirrored what was currently set out in the Act.

Mr Holomisa thought that because the SAHRC was not a court of law, the promotion of awareness was linked to its functions of mediation, conciliation and arbitration. He questioned if the “may” should read “must”.

Ms Smuts said that if “must” was used, it could imply that the SAHRC must take every single complaint to mediation, conciliation and arbitration, and it was unlikely that this would e needed.

The Chairperson suggested that this was an empowering provision, and that “may” was sufficient. The use of “must” would oblige the SAHRC to act.

Clause 16
Mr Labuschagne said that the essence of this clause was the same as the existing section in the Act, but there were some amendments. In subclause (1)(b) the words “duly authorised” had been added. In subclause (8) the words “if it is in the interests of justice or if harm to any person might otherwise ensue” were added. A new clause 16(9) had been added.

Mr Labuschagne noted that there had been a proposal on clause 16(1)(a) by the SAHRC.

Mr Swart said that whilst he was aware that this was in the current Act, the privilege provisions in clause 16(2)(a) seemed strange. He thought that in clause 16(2)(b) there appeared to be a conflict. He thought “in consultation” with the Director of Public Prosecutions (DPP) should be used, because there were far-reaching consequences. Although he noted the Department’s statement that it had tried to follow the current Act as far as possible, he thought the Committee should be correcting or improving any anomalies now. If there was to be a criminal sanction, the DPP needed to have a greater say.

Ms Smuts said that compellability was a substantial power. She, however, questioned why the DPP was to be consulted on the subject matter of what may be an incriminating answer that could not be used in evidence.

The Chairperson said that section 35 of the Constitution (although it related to arrested, accused and detained persons) set out clearly the right to remain silent. It could be argued that this did not refer to the Director General of a Department.

Mr Labuschagne said that the Department would investigate the point further and revert to the Committee. This was a fairly standard provision in other prosecution statutes.

Some Members expressed the view that it perhaps did not belong here. Ms Smuts said that she could not recall what the discussions were on this point when the initial Act was drafted. She thought that all the compellability references should be dropped.

The Chairperson was worried about the possibility of abuse and pointed to clause 16(2)(b)(ii).

Mr Swart said that there was also a worry around clause 16(3).

Ms Smuts noted her view that she had not been convinced that the powers set out were needed, and had asked if the SAHRC had ever used the powers, such as search and seizure or summons. Adv Mushwana, Chairperson of the SAHRC, had responded that the SAHRC had never actually used them because a mere threat to do so had been sufficient to persuade departments to comply. He had not, however, specified whether he had been referring to subpoena, or to search and seizure.

The Chairperson noted that this referred to a person being required to answer, and it did not relate to the SAHRC entering offices.

Mr Swart noted that if a person did not comply with the notice, or refused to answer questions, he could be found guilty of an offence. Whilst there was a caveat referring to “without just cause” he wondered if there was a reference to the right to remain silent.

The Chairperson raised the point that clause 16(2)(b) did not refer to the criminal sanctions clause.

Ms Schäfer said it was nonetheless linked, because of the cross-referencing to clause 16(2)(a), which referred in turn to questions raised under clause 16(1).

Members agreed that this was probably correct, although the wording was clumsy, an the Chairperson asked them to flag the clause for further consideration.

Mr Holomisa raised his concern with clause 16(9), which did not note whether a person could disclose information to his or her lawyer.

Ms Pilane-Majake pointed to the phrase “unless the commission determined otherwise”.

The Chairperson said that the right to disclose to a lawyer was an inherent right and it should be provided for.

Mr Swart said that he did not think this was the intention of the clause. He thought that it was intended to set up a confidentiality clause for the SAHRC staff, but the way it read currently also appeared to relate to the person under investigation.

Ms Smuts proposed that “no person” should be replaced with “no member or member of staff”.

Ms Silkstone noted that clause 16(4) related to documents referred to in subclause 16(1)(c), which were articles or documents in the possession or custody or under the control of” any such person”.

The Chairperson thought that there may still be a conflict between subclauses (4) and (9).

Ms Schäfer said that a proviso may be necessary.

Mr Swart clarified that the complaint would be, by this stage, in the hands of the SAHRC and he fully understood Mr Holomisa’s concern that the SAHRC may refuse to let the defendant see the complaint, despite his entitlement to do so.

The Chairperson said that clause (4) was referring specifically to documents needed to “refresh his or her memory”.

Members asked if, consistent with the Legal Practice Bill, there should be reference to “legal practitioner” instead of “advocate or attorney”.

Mr Seleka noted that there was no definition of a “legal practitioner” until the Legal Practice Bill was passed, and although attorney and advocate were not defined, they were well-known terms.

Mr Swart pointed out that the Criminal Procedure Act allowed for a person to be assisted by anyone.

Members agreed to remove the words “advocate or attorney” and replace it with “legal representative”. They also agreed that in (4) the words “as are reasonably necessary to refresh his or her memory” should be deleted.

Ms Silkstone said that this could be interpreted as referring to the minutes, whereas the refreshing of memory could be relating to documents and minutes.

The Chairperson did not agree and thought clause 16(1)(c) referred to all articles or documents, and not to minutes.

Ms Schäfer said it was worrying if the SAHRC was attempting to deny access to documents.

Mr Swart pointed out that the person concerned ought to have access to whatever he had provided to the SAHRC, but wondered if “other documents”, which that person may not have handed in, had to be covered.

The Chairperson believed clause 16(1)(c) covered this already. However if a person was required to produce documents, and did so, and was then summonsed, it did not make sense.

Mr Swart explained that the way it was worded made it a duces tecum requirement – the person was required to bring, with him,  the documents which were under the control of a person, and which may be necessary for the investigation. However, there might be other documents beyond that person’s control, which was not covered under (4). For this reason he thought that “or any other relevant document” had to be inserted after the words “or minutes”. He then said that “minutes” would be covered by “relevant documents” so there was no need to include “minutes” specifically.

The Chairperson asked what “privilege” referred to>

Mr Swart explained that it was privilege against self-incrimination, and covered privilege of information between spouses, attorney and client and doctor and patient.

The Chairperson said that then this was contrary to “the provisions of subsection 2(a)(i) which was referenced specifically in clause 16(3)(b) and suggested that those words must be removed.

Mr Swart agreed, but asked the drafters then to check if removal of those words would require consequential amendments to clauses 16(2)(b)(i) and (ii).

Members were satisfied with the wording of clauses 16(5) and (6).

The Chairperson asked if Members were happy with the reference to “by notice in the Gazette”, in clause 16(7).

Adv L Adams (COPE) pointed out that “from time to time” in clause 16(7) was unclear.

Ms Smuts thought that this meant that every time the SAHRC adopted a new procedure, it must be published.

The Chairperson said that not all investigations would be the same, and there was a reference to “due regard to the circumstances of each case”. SAHRC might have a different process for each case.

Mr Swart thought that a standard procedure would generally apply, and suggested that “from time to time” related to publication whenever changes were made. These words were probably not needed.

Ms Pilane-Majake thought that “where necessary” would probably cover any change that SAHRC had to make to deal with a witness, who, for example, was hospitalised.

Ms Schäfer did not read it like this, and thought publication was only required in the case of general changes to the procedure.

The Chairperson pointed out that the question of whether there should not be publication on the website rather than the Government Gazette, which was not only extremely expensive, but also not widely available. He added that another point ha been raised of the possibility of electronic tabling in Parliament.

Mr Labuschagne said that perhaps something could be included in the regulations clause setting out that the procedure could be amended by regulation. On the other hand, amending regulations could also be a long and cumbersome process. He would consider the issues and report back.

Mr Swart said that clause 24 referred to regulations. However, he did not think the Minister should be making regulations on this, as it could impact on the independence of the SAHRC. He was not sure why it was necessary to set this out at all.

Ms Schäfer noted that the Public Protector legislation had a similar clause. She did not think it was problematic, as some things did need to be regulated, in the interests of the public. She suggested wording that “the Commission must make publicly known the particulars of any procedure it has determined”, which would be fair to those coming to the SAHRC, but would leave it in the Commission’s hands.

Ms Smuts agreed, and added that because of the nature of its work, there was a limit as to how strict the procedure must be. These were not criminal investigations but were concerned with fact-finding. If this could not be determined, the bodies could approach the court.

The Chairperson said that if there was a concern that the SAHRC could enter premises, and there was a need to ensure that the individuals or bodies were adequately protected.

Ms Smuts again said that this was not a court of law. She thought that it might be worth reverting back to Mr Mushwana to ask him to clarify whether it was the threat of summons, or search and seizure, that had been found effective.

Mr Swart also said that the powers could be exercised in preparation for the litigation powers under clause 14(3). Ideally, the process should be finalised by mediation and conciliation. In general, he questioned why wide powers were needed, including those in clause 17. He accepted that these were in the current Act, but the Committee needed to ask if they were still relevant and whether this was the correct route to follow.

Members agreed that the words “from time to time by notice in the Gazette” could be excluded. Instead there should be reference to “publicly make known”, which would leave it up to the SAHRC to decide how this should be done.

Mr Swart asked, in subclause 16(8), what “harm” meant. The first part of the sentence was a new insertion.

Ms Schäfer was also worried about the remainder of the sentence, which was in the current Act but which was very wide.

Mr Swart said that this seemed to contradict the earlier rights.

Ms Smuts asked if the same considerations underlying open justice and open court applied to mediation and arbitration. She did not think that the Public Protector had anything similar in its legislation.

Ms Schäfer said that whilst a person needed to be able to hear the allegations against him, it must also be recognised that his presence may severely impact on other witnesses. Perhaps this needed to be qualified by wording referring to “not in the same room” and consideration could be given to a procedure similar to that in the Sexual Offences courts.

The Chairperson asked that this be flagged for further consideration.

The Chairperson reiterated that clause 16(9) would be changed to “no member or member of staff”.

The meeting was adjourned.


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