South African Human Rights Commission on its 2012/13 Annual Report; South African Human Rights Commission Amendment Bill: proposals of search and seizure

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Justice and Correctional Services

10 October 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The South African Human Rights Commission presented its 2012/13 Annual Report. The Auditor General had issued a qualified audit opinion for the SAHRC 2012/13 performance cycle. The key basis for the qualification included understatement of payables, leave provision and assets verification aspects. An action plan has been developed to enhance controls and address the key areas of concern arising from the audit findings.

During the 2012/13 financial year, the Commission had achieved 84% of its targets. Through focused delivery on the annual plans, it has ensured the realisation of strategic objectives and the constitutional mandate of protecting, promoting and monitoring observance of human rights in the country.  Thigh success rate was attributed to full achievement of targets on the objectives of promoting compliance with international obligations, advancing the realisation of human rights, and advancing the right to equality and access to information.
At the international level, the Commission continued its Chairpersonship of the Network of African National Human Rights Institutions (NANHRI) – a continental network of all African human rights commissions.  More recently, the Commission was appointed as the Chairperson of the International Coordinating Committee (ICC) of all national human rights institutions across the globe. This was the first time that such an honour has been bestowed on an African nation. In October 2012 the Commission hosted a Roundtable on Freedom of Expression and Hate Speech, themed “Transition blind spots: navigating the boundaries between freedom of expression and hate speech in shaping a common and shared identity, heritage and moral consensus in South Africa”. The roundtable sought to highlight the findings that emanated from the provincial hearings that were held in the previous year. The SAHRC Charter of Children’s Basic Education Rights that was developed and launched during 2012 was hailed by the United Nations (UNICEF) as the most comprehensive charter in the world.

The two targets that were not fully achieved towards the strategic objective related to the hosting of Section 5 Committee meetings as well as finalisation of complaints. Corrective measures regarding achievement of those targets include holding provincial offices more accountable through generating various investigative reports and continuous performance assessment. Furthermore, provincial visits by the Chief Operations Officer and Head of Legal Services will be undertaken to assess provincial challenges and develop performance improvement plans. 
A comparative analysis of caseload indicated a decrease in the number of cases the Commission investigated in 2012/13. There has been a decrease of 27% in the number of cases investigated by the Commission in 2012/13 (8 919) compared to 2011/12 (11 363). Although 79% (7 047 of 8 919) of cases had been finalised in 2012/13, the number of cases carried over to 2013/14 has increased to 21% as a result of challenges such as restructuring and freezing of posts for filling of organisational structure. The top five complaints that were received and finalised by the Commission were mainly in the areas of Just Administrative Action (14%), Labour Relations (13%), Arrested, Detailed and Accused Person (13%), Equality (12%) and Human Dignity (8%).

The Commission reported that there had been an 8% increase in its budget expenditure compared with the previous financial year. A surplus of R1.569 million was reported and National Treasury granted permission to roll-over the funds for pending legal complaints.

Members asked questions about the regression in the audit finding, the IT governance, how the SAHRC interpreted its roles and rights and what kind of cases it took on. The ACDP Member urged the SAHRC to exercise great caution before entering into any investigations in regard to religions and doctrine. Members further questioned the cost of litigation, the SAHRCs involvement in the Marikana Commission and if anything was being done about violence in schools.

The Committee sought clarity on whether the Commission wished to include, in the SAHRC Amendment Bill, both the power for the SAHRC to subpoena, and the power of search and seizure. The Committee accepted that this provision was useful, particularly as a threat to dangle before non-compliant people, but said the main concern of the Committee was that legislation was not in fact legislating for the current incumbents, and in a worst case scenario, these provisions might be abused. The SAHRC maintained that the power of search and seizure was necessary to aid investigations. The SAHRC cited a Report of the Office of the UN High Commissioner, which stated that human rights institutions should have the power to visit any places where people were deprived of their liberty and be able to scrutinise all state bodies, including intelligence and security bodies, and have search and seizure powers and access to premises. This was seen as a crucial advantage of a human rights body.

A Member pointed out that the Commission on Gender Equality (CGE) had used the powers of search and seizure, but this had been a straightforward criminal case. He wondered why, in the case of a serious breach, a Chapter 9 institution would not simply approach SAPS. He thought that if sufficient checks and balances were needed, the correct recourse would be to approach the courts for a warrant.
 

Meeting report

South African Human Rights Commission (SAHRC) Annual Report 2012/13
Mr Lawrence Mushwana, Chairperson, South African Human Rights Commission, appreciated the opportunity for the Commission (SAHRC) to present its Annual Report to Parliament.

Mr Kayum Ahmed, Chief Executive Officer, South African Human Rights Commission, tabled a presentation on the Annual Report of the Commission (SAHRC). Overall, he noted that the SAHRC had achieved about 84% of its targets; in some it had achieved full performance, but on others it had struggled. He described the six strategic objectives (see attached presentation, slide 4) and went through the performance of each. The SAHRC had been awarded an “A” status as an international human rights organisation, and the Chairperson of the SARHC was playing a significant role on the international stage. However, SAHRC had only managed to report on 5 out of the 8 international agreements.

In relation to the objective of positioning the SAHRC as the focal point for human rights, strengthening advocacy and improving effectiveness and efficiency of the SAHRC, and advancing realisation of human rights, he noted that the SAHRC had hosted over 80 key stakeholder engagements in strategic focus areas, including interaction with experts through section 5 committees. It had conducted provincial and national public hearings on water and sanitation It was a leading participant in the Marikana Commission of Enquiry, and the report would shortly be submitted. It had finalised 79% of the cases (7 047 out of 8 919) dealt with in 2012/13.

The launch of the Charter of Children's Basic Education Rights was recognised by the United Nations as the most comprehensive one in the world. SAHRC had hosted a roundtable on freedom of express and hate speech, continuing from 2012. It had conducted provincial hearings on illegal mining in the Northern Cape.

With regard to the objective to advance the realisation of human rights, the drafting of the economic and social rights report and monitoring matrix remained important. Civil society organisations were included, and SAHRC attempted to unpack and monitor each of the rights.

A Strategic Focus Area report on water and sanitation was prepared. There had been twelve submissions to Parliament on various draft bills. An institution-wide monitoring and evaluation framework and plan was prepared, which was moving away from a “tick box approach” to better monitoring.

The advancement of the right to equality and the right to access to information remained an important focus The SAHRC had completed and handed to the Minister the 2011/12 equality report. It was continuously promoting awareness on the right to access to information, through hosting and training of information officers and monitoring of the Promotion of Access to Information Act (PAIA) compliance was being done through engagement with top management in the public service, and submission of the PAIA Annual Report.

Mr Ahmed pointed out an error in the Annual Report, which noted that 33 interventions in terms of PAIA had been made; there were in fact 22.

The last strategic objective sought to optimise efficiency and effectiveness of the SAHRC.

Mr Ahmed took the Committee through the slides on the areas of non-achievement, showing annual targets, actual achievements and reasons for variance in respect of each (see attached presentation, slides 11 and 12). He explained that overall, the transfer of manual to electronic systems had resulted in delays and reduction of the target. The Acid Mine Drainage Booklet was delayed but had been produced in the current financial year. One conference on the Right to Food was not hosted because the donor funding fell through.

A new performance management system came into operation during the year but bemuse not all employees were dealt with at the same time, there was difficulty in meeting the targets. Restructuring and filling of posts was ongoing, but the SAHRC had had to freeze 13 of the 108 posts, because of its financial situation. This had hampered delivery.

Mr Ahmed described some of the legal investigations during the year. The SAHRC had taken on 8 919 new matters, of which 7 600 were resolved, He noted that the figures on finalisation had varied from year to year. In 2011/12 many backlogs had been finalised, but in the current year, there had been a reduction, partially because many of the cases were still new instead of partially completed and brought forward, and because many new colleagues joined after restructuring. 10 out of the 20 senior management were replaced in this year, and the higher staff turnover contributed to the delays. Limpopo, North West and Mpumalanga had a lot of new cases active at the end of the financial year, because new managers were appointed in all, which was why their targets were not met. A graph on legal investigation was also shown, which highlighted the number of cases not finalised by the target of 12 weeks. The Western Cape was struggling, with 444 active cases, but had been given more resources and training, and here too there was high staff turnover.

The top five categories of complaints had not changed over the last three years. 14% related to just administrative action, 13% to labour relations, 13% to conditions of detention, imprisonment without trial and right to appeal, or police brutality, and 12% to equality and 8% to human dignity.

The SAHRC had a good working relationship with the Commission for Conciliation, Mediation and Arbitration (CCMA). A fairly new phenomenon was the way that social media was perpetuating hate speech. The SAHRC was trying to develop a “child-friendly” system that would help children to make their own reports.

Mr Ahmed outlined some of the focal areas and interesting investigations in this year. The SAHRC had
intervened in  the Lenasia Housing matter, where the SAHRC had mediated a settlement with the MEC. It had mediated a public apology. It was still dealing wit the Marikana Commission of Inquiry, had commented on the Andries Tatane case. The Zama Khumalo case involved a 24-year old, who, noted, in the book “Let my People Go” by Albert Luthuli, that at one stage white Afrikaaners travelled to Pretoria to celebrate the dominance of white people over black. He had visited Westdene Dam shortly afterwards, had come across a plaque listing 42 names in memoriam, interpreted this as part of the Apartheid legacy, not realising that it in fact commemorated a group of children who died when a bus crashed at the Dam, and had answered the “What’s On Your Mind” tag on Facebook with a scathing remark that this was another example of celebrating whiteness and called for others to celebrate the death of whites. The case was resolved within three weeks and eventually he had given a public apology. However, Mr Ahmed said that not in all cases would the mediation be successful. The Deputy Chairperson had tried to facilitate in the matter of a young man who had posted hateful comments on Facebook, illegally assaulted a woman and used disparaging language, and it was a challenge to work out how best to deal with these kinds of matters.

Mr Ahmed noted that the financial statements showed an 8% increase in budget, and National Treasury had granted permission for rollover for money that was expected to be spent, in this financial year, on counsels’ fees, but had been transferred to the current hearings to pay to counsel and other legal investigations.

The more detailed breakdown gave specific figures. There were significant variances for personnel, largely because of restructuring and the increase of staff to 178, although some posts were frozen. Travel and re-location costs were affected by staff numbers. Inventories showed purchase of equipment. SAHRC was trying to move away from using consultants and developing internal expertise.

The adjustment budget provided some extra funding, and over the year there was a 12% increase in revenue, but 8% increase in expenditure. However, Mr Ahmed explained that the figures seemed to be larger, because the SAHRC had been working from a deficit in the previous year, and moving to a surplus. In the following years, SAHRC had been awarded a budget of R109 million, increasing to R116 million.

Mr Ahmed said that the audit findings were the most unfortunate part of the presentation. SAHRC had received a qualified audit in the 2012/13 year. There were material errors and uncorrected amounts. There were challenges in amounts payable, arising from exchange transactions. SAHRC had been unable to account for R528 823. Property, plant and equipment was not properly disclosed.

He explained that the AG would allow a certain threshold before qualifying an audit certificate, which was R1.2 million. Although, independently, these errors that he had listed would not have resulted in a qualification, taken cumulatively they pushed the SAHRC above that threshold and the AG thus had to qualify. He, personally, as Accounting Officer, took full responsibility for the audit findings. He was ashamed of having failed to achieve a clean audit and this was the first time that SAHRC had been qualified.

Mechanisms had been put in place to deal with the qualification. SAHRC had taken disciplinary action against various officials directly involved in the failure to implement proper management controls. An action plan had been put in place. He had been meeting regularly with the Audit Committee, and with the external auditors.

One of the issues around the assets was not so much that they had been misplaced, as that they had not been properly captured on the asset register. The AG had indicated that there was no evidence of misappropriation or fraud, but only of poor management, for which he took full responsibility.

Training and capacity was being provided, and consultants had been engaged. SAHRC was planning to have a full interim audit, to be conducted in November. The Audit Review Committee had been established by the CEO and this was meeting every fortnight.

Mr Ahmed then moved to the performance overview. The SAHRC had currently achieved around 15% of the annual plan targets for the 2013/14 year, and more than 65% of the targets were recorded as work in progress. The annual International and Regional Human Rights Report had been completed in this financial year. SAHRC had held more than 40 stakeholder engagements and five Section 5 committees. It had finalised 68% of targets, exceeding the mid-year targets. Commissioner Lindiwe Mokate had held a closed hearing on the delivery of learning materials in schools, where the provincial heads were asked to appear.

The SAHRC had also completed its Economic and Social Rights Reports. It had collaborated on the Equality Report. There were submissions on three pieces of draft legislation. Commissioner Titus had presented on the DNA Bill to the Select Committee on Security and Constitutional Affairs. The Chairperson would be presenting to the Portfolio Committee on Police.

Continuous awareness-building and monitoring of compliance with PAIA was being done. The SAHRC had concluded significant investigations relating to water and sanitation. It had recently completed a matter where the only two white students in a school had told their father of  hurtful and racist remarks made by their teacher against their black classmates, and action was taken against the teacher.

In the last year, SAHRC had used its extra R6 million allocation to improving its legal services infrastructure and there had been rapid finalisation of cases, with 69% now finalised, compared to the 43% mid-year target. There had been extensive legal staff training, and offers of assistance with this from various institutions. The Electronic Case Management System was also implemented.

In the last year, the Portfolio Committee had recommended to the National Assembly that the budget of the SAHRC for internal travel needed to be boosted, and had recommended that R32 million additional funding be given, but only R6 million was finally granted. The Medium Term Expenditure Committee of the National Treasury had noted that the Portfolio Committee may suggest additional funding, but should then also say from where the money should be taken to be redirected to the SAHRC.

The Chairperson interjected that the Committee could think of hundreds of examples.

Mr Mushwana emphasised that over the last few months, the SAHRC had been increasingly asked to attend Parliament to brief Committees, and that extra travelling was eating into the budget.

Ms Smuts thought that if a Committee called a body to Parliament, it was Parliament who should fund the trip.

Mr Mushwana said that the SAHRC had been asked why it was not monitoring correctional service centres, , although it would try to check what the Judicial Inspectorate of Correctional Services (JICS) was doing. Wherever there was a proven human rights violation, it would visit, but it was impossible for the SAHRC to visit all centres. He said that perhaps the SAHRC might be able to undertake some visits to a sample of centres.

Mr S Swart (ACDP) commented that he was not sure that the Portfolio Committee on Correctional Services itself paid many oversight visits.

Mr Mushwana said that Select Committees of the NCOP were also asking for more appearances. Generally, that increase was stretching the budget.

Mr Swart said that this was a point that the Portfolio Committee should raise with the Office of Institutions Supporting Democracy (OISD), so at least there was some liaison on budget constraints.

Ms Smuts repeated that normally, parliamentary committees would pay for their guests.

The Chairperson said that that may be considered. The committees were saying that the institutions should be accountable. The Chairperson of the Portfolio Committee on Correctional Services had asked Mr Landers if he was indeed allowed to invite the SAHRC to brief his committee. He understood that this was on a particular issue, but clearly the word had got out in Parliament. Invitations were fine, as long as they did not impact upon the budget, and so the Committee would investigate the option of consulting with the OISD, as suggested.

Mr Swart noted that Commissioner Titus had been in Parliament for the week, and he suggested that perhaps SAHRC needed to tell this Committee how often it was being approached. Limited resources were one issue; and other bodies had to do their work.

The Chairperson noted that he had recently been informed that in addition to the JICS visits, Constitutional Court judges were also visiting correctional centres, a positive move. He was not sure whether those visits were announced.

Ms Smuts remarked that there was a limit to what the SAHRC could do.

Mr Mushwana wanted to speak to the issue of costs. Many matters may start in the Equality Court, where SAHRC used its in-house legal staff. However, if there were constitutional issues, the matter may be referred to a higher Court, and advocates may need to be appointed. SAHRC often had to rely on pro bono legal services, and whilst the quality of services was good, it must be recognised that these practitioners tended to give more priority to the paying cases. Human rights should not be seen as cheap and it was wrong in principle that SAHRC should be obliged to rely on pro bono availability.

Ms Smuts asked about the advocates employed in-house.

Mr Mushwana was happy that they had been included in the Legal Practice Bill, to cover the SAHRC.

Mr Mushwana finally wanted to speak to the audit issues. The Commissioners were very concerned about the matter, and the Commissioners had held a meeting with representatives from the Auditor-General to be better informed on all the issues. The Commissioners would be trying to ensure that this did not happen again. He wanted to confirm that the matters were being taken seriously, and were being worked on.

Discussion
Ms Smuts wanted to speak to the regression on the audit finding. She had sympathy for the reasons, but was surprised that supply chain management was not followed for procurements. The IT governance seemed to be a problem. There were unanticipated difficulties. She asked if SAHRC would be able to do all the things suggested – such as implement controls when changes were made to systems, and asset controls. There seemed to have been a major problem.

Mr Swart asked if there would be ongoing discussions with the AG. He wanted to know exactly how the issues could be resolved, and had put that question to the Auditor-General. The audit result was disappointing but he appreciated the fact that the Accounting Officer was open and frank and had accepted responsibility and was trying to improve. He asked how quickly the matters could be improved and when SAHRC expected to get an unqualified audit. The report stood out starkly in the sector, given that other institutions had done quite well. He thought that the key issue was probably linked to the strength of the internal audit, which had, in the Department of Home Affairs, proved the main factor in the turnaround.

Ms L Adams (COPE) questioned whether the SAHRC was confident that the next audit would be a clean one.

Mr Ahmed responded that one of the big issues was around IT governance, when new systems were implemented, including the upgrade to Pastel, the financial system. The SAHRC had failed to put in place mechanisms to ensure proper checks and balances when it transferred from manual to electronic systems, and it had also failed to ensure that proper checks were done to compare. The IT policy had now been updated. There had never been an IT head at a senior level – as both the website and IT had been outsourced. As a result of using the service providers, proper controls were needed. He said that fortunately, the IT issues would be solved in the course of this financial year – and that included issues around due diligence. There were service level agreements that would allow SAHRC to interrogate the service and conduct audits. He reiterated that the AG would be doing a special mid-term audit. He was confident that the matters would be dealt with in the course of the current year.

He added that SAHRC was trying now to give even greater support to the internal audit function. The resource team was trying to conduct assessments on Property, Plant and Equipment. Assessors had been sent out to try to ensure that everything was on the register. Following that, there would be an external audit process, also in November. SAHRC would try to fix the problems by the end of the financial year. He was optimistic that the SAHRC would be able to achieve a clean audit for the 2013/14 year,. This would depend on the internal audit, but he hoped that the findings would be reversed.

Mr Ahmed said that the Auditor-General was very supportive, and had attended internal meetings, and was constantly giving advice on how to turn matters around.

The challenges with supply chain were largely dependent on document management. No proper mechanisms were in place to ensure that documents would be traced back to he service providers. It had written to all the service providers, to try to reconcile the information and get statements. Some service providers were problematic but he was hoping to sort it out. He was again confident that the issues would soon be addressed.

Mr Swart noted that during a previous discussion it was mooted that some of the provincial offices may need to close, which had disturbed the Committee.

Mr Ahmed said that SARHC was requesting an additional R16.4 million for the 2014/15 financial year, which had been agreed to, in principle, by this Committee already, and this would allow it to maintain provincial offices and fill the posts frozen. SAHRC hoped that it would not be necessary to close the offices and was trying to keep them open, with the bare minimum of staff, but might reach a point where this would be unsustainable.

Mr Swart asked how the SAHRC would decide what cases to take and whether this was done purely on the basis of complaints or when the SAHRC became aware of generic problems. He presumed that the budget would also determine what could be pursued.

Ms Smuts referred to the social media case described earlier and also asked how these matters came to the attention of the SAHRC – whether it was when someone filed a complaint, and whether these cases were sifted for “frivolity”, what kind of filters were used, and how SAHRC interpreted its roles and rights. SAHRC should not, in her view, be engaged in censorship, and evaluating desirability of speech. People in South Africa had the right to be obnoxious and horrid, as long as they did not advocate warfare or institute harm, the only hate speech exclusions. She would hate to see the SAHRC being the place where everyone would complain about matters that shocked them personally.

Mr Ahmed said that in the Khumalo case, complaints were lodged by a number of people. SAHRC could engage in matters also on its own initiative, particularly if matters were raised in the media – and this might include investigations into systemic matters, such as the public hearings on textbooks, public hearings into people with disability. There was a need, particularly in the run-up to elections, to avoid the situation where SAHRC was flooded with complaints about the electoral process, and so it had initiated a meeting with the Independent Electoral Commission, to try to establish a central point where IEC could deal with “hot political matters”.

Filters in place related mostly to the way in which the complaints process would run. For instance, a few months ago, models had been tweeting racist and hateful speech, and in this case, the SAHRC would find it useful to call parties in for a discussion, pointing out that what they were doing was harmful; whilst it may not actually amount to hate speech it certainly was not promoting unity and trust.

Ms Smuts questioned if this was appropriate, or if SAHRC was becoming a moralist.

Ms Pregs Govender, SAHRC Commissioner, said that this was done in the context of SAHRC helping to contribute to building a human rights culture. Whether or not this was hate speech was one of the factors taken into consideration. In relation to cases mediated, she noted that there had been apologies and, in the case of some, community service, and the way in which the matters were viewed had to do with certain criteria of actual harm.

Mr Mushwana appreciated this dialogue with the Committee. It was difficult to stop people from complaining. Social media was a new phenomenon and it was useful to get guidance, to try to assess how to exercise the necessary caution, at the right level. Freedom of expression was indeed enshrined, but people tended to be quite brutal in what they said. The whole Constitution and democracy was premised on the notion of reconciliation, and SAHRC tried to emphasis that it was always possible to find another way to put views across.

Ms Smuts said that the Equality Act had introduced a “watered-down” provision on hate speech, but it was actually really only injuria. She wondered if it would not be useful to refer matters to the Constitutional court, and predecessors on the SAHRC had written an excellent paper. For a time, the Broadcasting Authority was doing work that bordered on absurdity; for instance, villains of soap dramas were not allowed to say anything bad. The line between guarding between hurtfulness and censorship was fine, but she did not believe it was the role of SAHRC to act as censor

Mr Swart agreed and urged SAHRC to exercise great caution before entering into any investigations in regard to religions and doctrine. Examples had been raised about the Catholic Church’s stance on abortion, and if any complaints were laid about that, it would require a great deal of sensitivity. He did not want to go into detail on matters that were sub judice. He also noted that it would have to be careful about any institutions that it may investigate.

Ms Smuts pointed out that religious beliefs fell under fundamental human rights.

Mr Swart agreed. The line between what was doctrine and hate speech were fine. It was necessary to avoid verging on censorship whilst having respect for human rights and dealing with complaints. MPs generally shared concerns on some of the matters that had been highlighted in the media.

The Chairperson said that the Committee had been informed that the Department of Justice and Constitutional Development was planning on tabling “hate speech” legislation, as opposed to “hate crimes” legislation. The Committee was not aware of what would be in the Bill and he had not asked whether the SAHRC had been engaged in the drafting. There would be further opportunities, however, for the SAHRC to engage on that, and he urged the SAHRC to make use of the submissions and public participation platforms.

The Chairperson said that he agreed with Ms Smuts’s views on freedom of expression. There was a growing demand, in the realm of social media, for service providers to be held accountable. This went beyond only hate speech, because it also touched on libel and defamation laws, and there was growing jurisprudence that suggested that service providers had to be held accountable and could not hide behind a claim that they had merely created a platform. He was not sure how the Department would be dealing with this aspect. Hate speech could be distinguished, in his view, from a person expressing himself freely.

Ms Smuts said that the “mere conduit” principles were written already into some law.

Mr Mushwana agreed that it would be interesting to see the new “hate speech” legislation, and said that the Constitution had explicitly tried to not over-prescribe on this aspect.

Ms Smuts added that at least this legislation would also provide the opportunity to repeal some sections of the Equality Act.

Mr Mushwana added that there were very interesting developments in social media.

Ms Govender said that in a country where there were such high levels of sexual and gender violence, the potential powerful role of the faith institutions (since the majority of citizens were subscribing to a faith) to support the Constitution and promote the understanding of how it could uphold human rights, could not be underestimated. The SAHRC had held discussions already with other Chapter 9 institutions on how best to engage with religious institutions, particularly on understanding of different texts, new interpretations, or the weight given to different versions over time. The context was important. She agreed that the role of the faith-based organisations was potentially both powerful and positive. She indicated that the role of liberation theologists had been powerful in reversing the legacy of the way in which religious texts were used to support political aims during the apartheid years.

Mr Swart questioned the cost of litigation to the SAHRC. There were discussions about the Marikana issue and the issue of the R1.7 million had been highlighted. The Marikana Commission of Inquiry (the Marikana Commission) was a massive event but he asked if SAHRC believed that the expenses were justifiable expense, particularly the advocates’ charges. He thought that the report by Mr Gary White had presumably come at high cost. The main dilemma was that the families were not legally represented, which made the role of the SAHRC even more important, and that fact must be balanced against the budgetary constraints. He asked if there had been any progress on getting assistance from Legal Aid South Africa.

Prof L Ndabandaba (ANC) said that the Centre for Applied Legal Studies had suggested that the intervention of the SAHRC had shaped the future direction of the Marikana Commission, and asked what kind of enrichment it had given, and if this was the only case where advice was used from outside.

Mr Ahmed said that SAHRC had initially been using the services of one particular advocate and although it was quite happy with the competency of the services, they were simply beyond what the SAHRC could afford. Senior-Junior counsel had now been appointed, who were assisting competently and that had reduced that expense. The Centre for Applied Legal Studies (CALS) had indicated that the use of Counsel had an impact on the way in which the Marikana Commission was engaging with evidence leaders, and this had been explored in some research submitted. SAHRC was using the CALS to give supporting attorneys’ services, and it was doing this without cost. In general, SAHRC would use outside legal practitioners, for nuanced or difficult matters, particularly to obtain opinions to support or confirm the views of the SAHRC itself and check that they were sound in law. The law firms would generally not charge, as they liked the type of work.

Gary White had given a highly discounted rate for appearing as an expert, and his “phenomenal report was worth every cent”. CALS had managed to raise funding to appoint him. In regard to use of advocates and

Mr Ahmed also said that he had visited Legal Aid South Africa and the process of taking the MOU further was being done with the Chief Operations Officer.

Mr Mushwana also wanted to speak to the justification for the SAHRC intervening in the Marikana Commission. The SAHRC had decided to intervene in order to contribute to the work of the Commission, not to assist any specific parties. At the stage when legal representatives were withdrawing, it was mainly concerned with ensuring that the Marikana Commission remained focused, dealt properly with the issues, and in a proper manner. Even if there were not paid legal representatives, the SAHRC wanted to ensure that some legal assistance would be available. The Commissioners themselves, and the people of Marikana, had commented on the input of the SAHRC, particularly in giving the international perspectives so that international norms and standards were considered in taking matters forward. It must be remembered that this Commission could help in directing future legislation and policies. The more the matter persisted, the more SAHRC would try to help with maintaining the proper perspective.

Ms Smuts asked what the categories of information were in which SAHRC had assisted.

Mr Mushwana confirmed that Gary White, from the Ulster Constabulary, had given objective evidence and assessed the policy frameworks of the SAPS operation, planning, briefing command and control, errors of strategy, tactics, proportionality,  and had assessed the independent forensic evidence from the media footage of the event. The UN Special Rapporteur, Prof Heyns, had considered the internal context of public protection and standards to be applied during the policing operation. Independent evidence had been given, through Commissioner Titus, on overseeing areas of human rights and law enforcements, and he had described the body of work. In addition to that, the SAHRC had also dealt with some cross-examination issues in relation to police witnesses. It would be monitoring the procedure of the Marikana Commission, had made interventions, and had requested the Commission to comply with the proper rules for witnesses. The SAHRC had been described as doing “seminal work”, particularly around the Constitutional Court decisions on the funding. It had tried to ensure that there was change from an adversarial process, to one that was fairer overall. He reiterated that particularly in the light of legal representative withdrawals, the presence of the SAHRC was very important. The SAHRC also wrote to the office of the Presidency to consider the importance of funding for legal representation, for those most affected. The participation was, from the perspective of the SAHRC, also helping it to have more impact in preventing similar tragedies in the future, and its monitoring would hopefully assist in ensuring that justice was better served also in the future.

Ms Smuts asked if the SAHRC had been told that it would be receiving specific allocations of R3 million to assist, via the Department of Justice and Constitutional Development.

Mr Mushwana said he knew of, and was grateful for this.

The Chairperson said that sub judice rules precluded the Chairperson from commenting in detail on the Marikana Commission, but noted that the purpose of this Commission was as a Commission of Inquiry, to adduce the facts and truth around the Marikana incident. He had been following the whole debate about withdrawal of legal representatives. He asked if there was an expectation that the 34 people who died would be individually represented. If all those who died were to be separately represented, he asked if the same would apply to the SAPS members who were killed.  He had asked a question about representation of the departments involved, and had been told that the SAPS alone had seven lawyers at the Marikana Commission. Two of these had a watching brief, and one of those with a watching brief was a Senior Counsel, presumably charging a huge daily fee. He wondered why this was needed by SAPS, and thought it simply did not make sense. Mr Mpofu would have to answer for himself, but he strongly believed that it was possibly inappropriate to have lawyers when the purpose was not a trial but an inquiry. The question of guilt would be determined in a different forum where criminal charges were made. He would be interested to hear other view son this. The Committee appreciated the role played by the SAHRC in assisting the Marikana Commission to adduce the truth.

Mr Swart agreed with the concerns about the number of counsel. The findings of the Marikana Commission would have a massive impact on later civil and criminal proceedings and that was where it would be useful to have a watching brief, but it seemed excessive to have a watching brief held by senior counsel, as watching briefs usually were conducted where there was anticipation of later litigation. However, attorneys and advocates who were present during the first proceedings would normally also represent the same clients in later proceedings. He agreed that having so many representatives for one government department appeared excessive. He added that other government departments might also be represented.

Mr Mushwana said that one of the biggest questions was why the Marikana Commission was following adversarial processes. More than six months had been spent with one witness, and this was a major concern for the SAHRC. He agreed that the Marikana Commission was not going to be a substitute for any possible criminal or civil actions that may follow and so the defence lawyers would still get their chance at those cases. The Marikana Commission would come up with recommendations to government but the evidence would be another matter. Some saw this Commission as a possible way of delaying criminal prosecutions and there were many expectations in the minds of the public.

Mr Swart asked whether a lawyers representing one of the parties might use this record for future cross-examination purposes for cross-examination and if this might be the reason for taking so long in examining the evidence in such depth. Other parties may have some interest in getting a full record. It was regrettable if this was so, because it was not the purpose of a Commission of Inquiry, but the facts appeared to suggest that this was what was being done.

Mr Mushwana said that the disadvantage was that if incriminating evidence could be used, it was unlikely to be produced upfront at the Marikana Commission, which might water down the value of the evidence being presented. Some individuals would no doubt be incriminated.

Ms Govender pointed out that the seven subpoena counsel were being paid for with public funding. There was another question whether those most affected would be funded, to try to achieve the same equity.

The Chairperson also noted that in submissions made to the Marikana Commission it was suggested that perhaps the SAHRC needed to make input into the training programme for police. He had the sense that police officers leaving the present SAPS training colleges were almost expected to be brutal and tough. When Ms Smuts raised a query on that, he said that he could be wrong, but the SAHRC would certainly be well-placed to say what the SAPS ideally had to bear in mind, and perhaps that was something that should also come out of the Marikana Commission.

Ms Govender said that the question around training of police on human rights was one issue, but it then raised the broader question whether all public servants should not be trained on human rights – in disciplines such as health, where there had been several horror stories of how human dignity was not being upheld – or education. The SAHRC could do and had already done some training. It was assisting SAPS in Western Cape on human rights training but it clearly did not have the capacity to train everyone across the country. There were other initiatives and institutes in government who were supposed to do that. The SAHRC brought reports to Parliament on the instances where human rights in the public sector had not been observed, and it could also possibly provide some support in the development of training curricula, but the oversight role of Parliament itself, in relation to the public service, was vital to ensure that human rights were properly observed.

*Mr Mushwana added that in the past, the SAHRC had recommended, to the Committee on Security and Constitutional Development that the human rights aspects of the training around the new DNA legislation must be strengthened, and that had been well received by SAPS. That might be a future role for the SAHRC. However, he agreed that it was necessary to consider carefully the limited resources and capacity of the SAHRC. He also noted that the building of a human rights culture was not in the hands of the SAHRC alone, and that Parliament should be exercising oversight over all relevant accountable institutions.

Ms Lindiwe Mokate, SAHRC Commissioner, agreed that training was worth pursuing. She said that the SAHRC could conduct investigations and make recommendations, although she too mentioned the very real issue of capacity constraints. SAHRC could possibly go do more training than was being done at present.

Mr Mushwana said that the SAHRC association with international bodies involved more than three training sessions, and some SAPS members had indicated their interest in being included in the training on the Optional Protocol to the Convention against Torture. Commissioner Titus was in charge of the Police and Correctional Services sector, and had attended two workshops; the input would be shared with other stakeholders. He believed that it would be useful to hold discussions with heads of departments, to try to inculcate a culture of human rights. 

Prof Ndabandaba noted that the Criminology Association of South Africa was involved in training of the police, and suggested that SAHRC might be able to collaborate with it.

Commissioner Mokate gave some further input on the hearings into provision of learning materials to schools, as mentioned earlier by Mr Ahmed. Some institutions and individuals were not part of the inquiry, but had asked to give input – such as EduTextbooks, who were involved in delivery. SAHRC had now completed its process. Its Legal Committee would be meeting shortly, and the report should be approved and released in the following two weeks. SAHRC had known, prior to the inquiry that not all schools and individuals had textbooks, but it was now possible to assess who was most affected. SAHRC had not obviously managed to deal with every school in the country, but would be asking the Department of Basic Education (DBE) to do an audit, that would help that Department determine how many schools there were, and ensure that mechanisms were set up to ensure that all would receive materials in future. Some schools had had absolutely no contact with the DBE in the past. The main difficulty was that because education was a provincial competency, everyone was doing something different, which made it very difficult to learn from each other. The most affected schools were those in the rural areas, which worsened the situation that these children, being poor already, were already deprived and given unequal treatment. In the Western Cape, one school had not received proper material for the last five years. Every child should be getting the benefit of education, a priority outcome of government.

Ms Mokate recalled that she had earlier addressed the Committee on the draft norms and standards on education. Although the SAHRC did not have the resources to monitor it fully, the Minister had taken a number of the recommendations on board. Education was, in terms of section 184(3) of the Constitution, a social and economic right, and should not be subject to progressive realisation. Lack of sanitation and water at schools was affecting children right now, with some teachers having to stop school at mid-day as there were no toilet facilities. It was not acceptable that draft norms and standards suggested that a decade be allowed to put matters right. Other comments, such as “subject to cooperation from other agencies” were seen as introducing progressive realisation via the back door. Another serious issue was that, although prohibited, dump sites were found right next to schools. SAHRC was also very concerned that so little attention was actually paid, in the provinces, to children with disabilities. Time frames were also of concern.

Ms Mokate added that SAHRC was, as outlined, trying to put in place procedures that would make it easy for children to approach the SAHRC on their own. Even staff who were not actually handling complaints had been trained, to ensure that no child would be turned away without being helped.

Prof Ndabandaba asked if anything was being done about violence in schools.

Commissioner Mokate answered that the SAHRC involvement at the moment was limited to addressing complaints, but SAHRC agreed that a broader system was needed. It was working, with unions, provinces and other stakeholders, on concerns around corporal punishment, as a multi-pronged approach as needed. The Centre for Child Law was working with SAHRC, as certain criminal cases would be outside its control.

Mr Swart agreed that ongoing corporal punishment at schools had to be investigated, but he thought that a far more important issue was general violence, drug abuse and gangsterism, which were promoting systemic child-on-child violence.

Mr Mushwana said that it was necessary to locate where those crimes were happening, and to consider their effect also on the right to education. Certain matters could be addressed immediately by the schools, in his view; for instance, he saw no reason to delay taking a decision that a child engaging in violence should be excluded, by making an application to court to exclude the child. Delays simply exacerbated the problems.  Some matters were also clearly within the control of the school authorities – like not allowing weapons on to school premises.

Ms Govender agreed that immediate response and immediate action was needed against those breaking the law. There was, however, also a need in the longer term to address what were the root causes of children joining gangs, the socio-economic conditions and the legacy of how drugs were distributed, which may be systemic and historic problems. SAHRC had been challenged in how it did its work in locating the focus of poverty and inequality, and it was trying to get government to accept accountability for change and go back to communities. SAHRC was building on its powers, in a case-by-case way. She thought a dual approach was needed. SAHRC was trying to ensure that swift action was taken by those with the mandate and power in government. Perhaps Parliament could also oversee the creation of safer school environments, as well as distribution and availability of drugs to many poor and working class children.

The Chairperson, in conclusion, said that he wanted to notify the SAHRC that earlier in the week, the Committee had received a flood of correspondence from seven personnel who had been retrenched from the SAHRC. The Committee could clearly not intervene, as the matters were before the Labour Court, and this would be conveyed to those people.

South African Human Rights Commission Amendment Bill
The Chairperson referred to earlier discussions and correspondence, and said that the Committee wanted to get more clarity on whether it wished to include, in the SAHRC Amendment Bill, both the power for the SAHRC to subpoena, and the power of search and seizure. The Committee accepted that this provision was useful, particularly as a threat to dangle before non-compliant people, but said the main concern of the Committee was that legislation was not in fact legislating for the current incumbents, and in a worst case scenario, these provisions might be abused by “a Hitler or Idi Amin” in future. It was in this context that the Committee wanted to address it on the provisions. He noted the written input (see attached submission), and asked the SAHRC briefly to summarise its viewpoint.

Mr Mushwana said that the views as expressed in that input stood. The SAHRC Act had come into operation one year after the Paris Principles were adopted, which laid down the minimum rules and standards to be followed by international human rights institutions, particularly those with investigative powers, such as the SAHRC. This had no doubt informed the SAHRC Act at the time, although he could not exactly remember what the rationale was behind providing for those powers. He maintained that the Paris Principles should remain applicable, and that the power of search and seizure was necessary to aid investigations. SAHRC had been assessed last year in Geneva, and one of the staff members had been asked to speak to exactly how this clause impacted on the work of the SAHRC. Internationally, there were concerns that many states had started to whittle away the powers of human rights institutions, but that was not so important as the fact that the SAHRC would like to see its own status maintained and ensure that its own powers were kept strong. Human Rights institutions were asked, from time to time, to return to the United Nations for accreditation, and this was one of the factors that would be used to assess how independent the SAHRC was. This was not to say that the SAHRC would rush to use those powers; in all instances it maintained a strict human rights approach and these were really “last resort” when nothing else remained to be done.

Ms Fadla Adams, Senior Researcher, SAHRC, noted that she had worked in the international human rights unit in Geneva, and it was important to note that the Paris Principles emphasised that a national human rights institution should be able to get information. The UN and Office of the High Commissioner, as well as Commonwealth best practice, interpreted this as meaning that the institutions should have the ability to compel the production of documents, and that they have access to and if necessary be able to use search and seizure powers, and that penalties would be applied to those denying or falsifying information. In 2005, the Report of the Office of the UN High Commissioner had gone further, saying that such institutions should have the power to visit any places where people were deprived of their liberty and be able to scrutinise all state bodies, including intelligence and security bodies, and have search and seizure powers and access to premises. This was seen as a crucial advantage of a human rights body.

She noted that South Africa had been re-accredited with A-status by the sub-Committee on Accreditation, linked to the International Coordination Committee. All documentation submitted was carefully scrutinised and the sub-Committee would also undertake its own research, speaking to officials and civil society to see if the institution had reflected the current situation accurately. SAHRC was, during this accreditation process, specifically commended on the search and seizure provisions, which were seen as part of best practice. Many developing countries were seeking advice, and the “model pack” from the SAHRC, despite the fact that the SAHRC was still operating under 1994 legislation. Internationally, the SAHRC had good standing, enjoyed a good international presence and it was playing an ever-increasing role in the international system.

Mr Mushwana added that SAHRC had recently been in discussions with Ghana, Zambia and the Maldives, for sharing of practices. He cautioned that if such a power was removed from a human rights institution, the accrediting bodies could question whether the body still qualified, as it was considered to be a major factor around independence. The subpoena power was even more clearly needed.

Ms Govender added that the subpoena power was used, very successfully, earlier in the year when the SAHRC was investigating water and sanitation issues. All sixteen ministers were told that unless they responded they would be subpoenaed.

Ms Smuts said that she was aware that the subpoenas worked successfully.

Mr Swart appreciated that input, and understood the concerns around the international recognition. However, as set out by the Chairperson, the Committee had been concerned about the possible abuse of power, particularly on a horizontal level, and the fact that, in the hands of a “Hitler or Idi Amin”, an SAHRC in the future might try to go into doctrine of religious institutions, or even search a political party.

Mr Swart noted that the Commission on Gender Equality (CGE) had used the powers of search and seizure, but this had been a straightforward criminal case. He wondered why, in the case of a serious breach, a Chapter 9 institution would not simply approach SAPS. He thought that if sufficient checks and balances were needed, the correct recourse would be to approach the courts for a warrant. There was mention that if there was not sufficient time, the SAHRC could break down the door, and he was not sure that it was responsible for legislators to leave this in.

The Chairperson commented that some people held the view that it was incorrect for the CGE to have powers of search and seizure, noted that they were in existence, but thought an amendment was needed.

Mr Mushwana said that the point was that SAHRC had never used these powers, and it was not suggesting that it would necessarily make use of every single section in its Act; it would seldom happen, especially in a new Democracy, that the Act would be fully used. However, it would be useful nonetheless to have the provision, more as a deterrent than anything else. He heard the arguments about possible abuse and would agree that perhaps the answer to that would lie in strengthening the checks and balances. It was not particularly useful to make the SAHRC dependent on SAPS, who might not be available, but a requirement for a court ruling could be a useful check and balance.

Ms Melanie Dugmore, Western Cape Provincial Manager, SAHRC, said that the procedure for a warrant for search and seizure was consistent with the Criminal Procedure Act. Currently, the SAHRC would need to apply to the court, and the judicial officer would have to be satisfied that substantial motivation had been given. This was not something that was a unilaterial decision by the SAHRC. From a practical standpoint, she noted that SAHRC frequently did not receive any response to its first request, particularly in the case of provincial departments. Only after highlighting its powers, and threatening to use them, would SAHRC get a response – and this had been a recent experience with both Metrorail and the Airports Company South Africa. This showed that the provision was effective, even if it was only still being used as a threat. In an instance in Limpopo, a young person was being held in a house, in chains, and SAHRC and SAPS had jointly entered the private dwelling to have the child removed. In Western Cape, the threat to use the power of access had been successfully invoked, although it had actually not had to use that power, to investigate atrocities in Correctional Services facilities. The same would apply to children’s care facilities. Although this may not be applicable in the case of government agencies and departments, there was a need to retain it to permit investigations into extremely vulnerable groups and child and old-age facilities.

Mr Bokankatla Malatji, SAHRC Commissioner, added that the withdrawal of search and seizure powers may have an impact on the number of cases completed by the SAHRC. Recently, there had been an increase in finalisation of the backlog cases, due to these provisions being cited, and if the powers were withdrawn it would create a problem for the SAHRC, and a possible non-meeting of targets.

Mr Mushwana also added that the SAHRC received numerous complaints about and needed to be able if necessary to compel cooperation of the Department of Home Affairs, on the Lindelwa detention centre. The SAHRC had never “kicked down a door” and certainly never wanted to get to that stage.

Ms Lindiwe Khumalo, Chief Operations Officer, SAHRC, noted that there were some operational concerns around the subpoena and entry, search and seizure powers. The numbers of cases carried forward from year to year were in part determined by the rate at which SAHRC was able to finalise its investigations, an that in turn depended on how much responsiveness and accountability was shown by departments. This had been a matter of concern for some time. The SAHRC set out that the SAHRC could essentially use powers of mediation, litigation or investigation. There were operational restraints to mediation, and litigation would depend on the efficiency of the system, so the bulk of cases would be investigated by SAHRC. A power to subpoena allowed the SAHRC to secure the attendance of someone, but if the documents were not presented, then search and seizure may be needed. It did not necessarily imply anything overtly intrusive; for instance, in a case where there were complaints that CCTVs were placed in the toilets at a school in Northern Cape, the SAHRC obviously needed to enter the premises to check where the cameras were, and if the school had refused entry, and these powers did not exist, the matter could be taken no further. The SAHRC had needed to test some water systems during a recent inquiry and that was another example of where such a power may be needed.

Ms Khumalo agreed that if there were fears of abuse, judicial review processes might be one way to address the issue. However, she also suggested that the SAHRC could be asked to set out controls within its own internal procedures, to take the concerns into account.

Ms Smuts said that this would still not be any use in the hands of “an Idi Amin”. She noted the comment of Ms Dugmore and said that a warrant was essentially a criminal justice instrument that was used when investigating offences. That being the case, she wondered if the best safeguard would not be to follow the Commonwealth Best Practice guide and allow search and seizure only through a judicial warrant, and in conjunction with the law enforcement authorities. She asked for clarity on what Ms Dugmore had meant that a case must be made out by the SAHRC going to court.

Ms Smuts added that the drafters from the Department of Justice and Constitutional Development had drawn the Committee’s attention to the wording of similar provisions in the CGE Act, which actually extended the current powers in the SAHRC Act, but she was not sure why the CGE might want to search people.

Mr Swart clarified that the SARHC would have to convince the court of the need for a warrant.

Mr Mushwana agreed, and said that the SAHRC always had to prove substantial grounds for requesting the warrant. He was not sure that the SAHRC would want to search people.

Ms Govender cautioned that she would like to discuss this with the other commissioners; this comment had been in the submission.

Ms Dugmore said that the definition around search and seizure applied to persons as well as buildings, because this was in line with the current definition in the Criminal Procedure Act. Search and seizure for a person would have to follow the same warrant process, before a judicial officer. She was, however, concerned that if there was a statutory requirement for cooperation with law enforcement officials (SAPS), and a police officer had to accompany the SAHRC, this could hinder any investigations where SAPS itself was being investigated

Mr Swart said it came to the question of who guards the guard.

Ms Smuts said that the words referred to law enforcement “where desirable or necessary” so it was discretionary and would vary from case to case. The judicial officer giving the warrant may well decide, after hearing motivation, that it would not be necessary to have SAPS accompany the SAHRC at a municipal office, but it may be appropriate where there could be threats of violence or resistance.

Ms Dugmore said that if this was made compulsory it also went to issue around independence. The credibility of the investigation process would clearly have to be considered by the judicial officer.

Mr Swart wondered why it should be necessary to search a person.

Ms Dugmore pointed out that a person may invite the SAHRC to search the premises, but sit with the relevant documents in his pocket.

Mr Mushwana emphasised that the bottom line was that the judicial officer would have to be satisfied that a proper case had been made out. The SAHRC would clearly adduce evidence, where necessary, of the kind of behaviour that the person was likely to show to hinder the SAHRC.

Ms Smuts wanted to raise issues around compellability. The power of subpoena was clearly useful. However, she was interested in the provision that a person could be compelled to answer, notwithstanding the fact that in doing so, this may incriminate a person. There was some safeguard, in that a person could only be compelled to speak, or hand over a document after the SAHRC had consulted with the relevant Director of Public Prosecutions (DPP), but she pointed out that this seemed to be in conflict with the general rule that evidence that may incriminate a person was not admissible in a criminal proceeding, except perjury. She asked if this power had been used.

Mr Mushwana said that the threat to subpoena had been used in this year, and had elicited a very quick response.

Ms Smuts suggested that this would only be effective if not over-used.

The Chairperson asked the Committee what the motivation was.

Ms Dugmore agreed that this was quite a controversial provision and the SAHRC would be very careful on how this would be used. She raised the same caution in relation to removing powers from an international human rights institution that had been granted to it in the past. Currently the wording required “a courtesy consultation” between the SAHRC and DPP, to ensure that no investigation being undertaken by the SAHRC would negatively impact on a pending criminal investigation. This could be strengthened further by drawing up strict procedures in the operational templates of the SAHRC.

Ms Smuts commented that instead of being a safeguard it was more of an administrative requirement.

Ms Dugmore added that the SAHRC did not engage in any matters that were sub judice, and in fact this was one of the considerations in rejecting or withdrawing from a complaint. The likelihood of conflict with a criminal matter was remote.

The meeting was adjourned.
 

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